Is a Provision for the Initiative and Referendum Inconsistent with the Constitution of the United States?

Authors

W. A. Coutts

Abstract

We are told today that the Constitution of the United States forbids the adoption of the Initiative and the Referendum, as these involve such purely democratic principles as to be inconsistent with the republican form of government guaranteed by the fourth section of the fourth article of the Federal Constitution. The special interests that are opposed to the Initiative tell us that we must find some other cure for the evils at which it aims; that the Initiative is a purely democratic principle and, as such, it is forbidden by the fourth section of the fourth article of the Federal Constitution, which guarantees a republican form of government to the states. This is not the first time in our national history that the Federal Constitution has been invoked to foster the development and spread of noxious growths upon the ·body politic. The special interests that oppose the Initiative have a precedent in the action of the slaveholders before the war. The Constitution was invoked by them to perpetuate slavery and to extend its territorial limits. The Supreme Court responded to their demands, sustained their contention, and we all know the result. The Missouri Compromise, the act by which Congress attempted to confine within prescribed limits the existence of slavery, was declared void. It was held that the Constitution ex proprio vigore extended to the territories and, therefore, that its provisions regarding slavery became a part of the law governing these territories, that the will of the people as expressed by Congress was subordinate to that law and must submit to it. The slave­holding interests won the day for the time being. They had sufficient influence in Congress to prevent Constitutional amendment. The Missouri Compromise, which had been recognized as law for more than thirty years, gave way, but not so the will of the people who had enacted that law. It but gathered force by the attempts made to check it, until with the election of Abraham Lincoln and the attempted secession of the slave states it burst into civil war, and rivers of blood and billions of treasure were the price paid for what should have been procured by an amendment or by a proper construction of the Constitution.

Recommended Citation

W. A. Coutts, Is a Provision for the Initiative and Referendum Inconsistent with the Constitution of the United States?, 6 Mich. L. Rev. 304 (1908).
Available at: https://repository.law.umich.edu/mlr/vol6/iss4/3