Page:The Green Bag (1889–1914), Volume 11.pdf/286

 An Answer that does not Confute.

AN

ANSWER

THAT DOES

NOT

259

CONFUTE.

By Benjam1n S. Dean. IN discussing my recent article on " The Constitution or a Theory — Which?" Mr. Eltweed Pomeroy, president of the National Direct Legislation League, tells us that " seven or eight people have asked me to answer this article," and then he takes up several columns of the valuable space of The Green Bag in not doing what these people have requested him to do, if we are to understand that by "answering" he was expected to confute the propositions which were put forward in that discussion. He seems to have entered upon the task of answering my objections to the initiative and referendum with the firm conviction that when he had completed the work I would, like Satan, stand "... confuted and convinced of his weak arguing and fallacious drift," but he must, upon reading over what he has written, feel that he has in some measure fallen away from the ideal, for he has in no wise met or intelligently considered the points which I raised. As an advocate of municipal ownership of essential monopolies in my own city, where we have met with some success in the matter, I have not failed to come into contact with the same elements of opposition to good government which are so vividly portrayed by ex-Mayor Swift, Oliver McClintock, Dr. Parkhurst, and other men who have sought to improve the conditions of the masses, but this has no more to do with the question which I discussed than it has with our duties in the Philippines. My dis cussion was based upon the proposition that constitutional government, such as we have known in America, was inconsistent with the idea of the initiative and referendum; that the two systems of legislation could not •exist in the same territory without the essenial destruction of our republican form of

government, and this question is not con sidered by Mr. Pomeroy. Nor is it material that the referendum, in some form, is in use in many of the States, New York among them. The question is not whether it may not, under some circumstances, be wise and proper to submit to the people whether a given statute shall take effect, as is frequent ly done in the matter of municipal charters, but whether it is consistent with our consti tutional system of government to permit the people, by a bare majority of the votes cast, to determine what shall and what shall not become a law. While it is true that our State and Federal constitutions are constructed upon different lines, the one being a delegation of plenary powers, and the other a limitation upon powers which were otherwise plenary, the essential principle of all constitutions is the agreement between the people as to the power which shall be exercised by the government. There are certain things, among them " the right to life, liberty and the pursuit of happiness," which we insist shall be respected and maintained; we deny the right, even of majorities, to infringe upon these, unless by due process of law, and for the protection of the higher rights of society as a whole. The basic principle of the initiative and referendum is that a minority have the right to force the consideration of measures, and that the decision of the majority is final, and it is at this point that it comes into conflict with constitutional principles. For instance, there is no reason to doubt that a measure could be passed by a majority of the voters of the State of New York that the cost of improving the Hudson river (assuming it to be a State charge) should be borne by those owning abutting property, on the same theory th^t in our