advice of the people." Indeed much objection has been raised even against instituting court proceedings to keep off the ballot measures not conforming to the technical requirements of the law,2 and measures the petitions for which have been tainted with fraud.

2

The Recall of Judicial Decisions"

Some time before the announcement of Roosevelt's proposition for "the recall of judicial decisions," it had been suggested in Oregon that the system of direct legislation might logically be extended by "an amendment providing referendum votes on decisions of the supreme court."3 In the legislative assembly of 1913 there was a futile attempt to embody a modification of Roosevelt's plan in a constitutional amendment. "Whenever the highest court of the state shall declare an act of the legislature affecting either social or industrial conditions to be void on the ground that authority to enact it had not been delegated by the people to the legislature, the question shall be submitted to a vote of the electors at the next general election thereafter, unless the legislature shall provide for its submission at an earlier date as follows: 'Shall chapter . . . become a law?' and if the majority of the votes cast for and against the

1 Eugene Guard, Nov. 7, 1913, p. 4, col. 1. See also Eugene Register, Dec. 3, 1913, p. 4, col. I; Oregon Journal, Apr. 3, 1914, p. 6, col. 1. "When a majority of the electors voting at a state election shall by their votes signify approval of a law or resolution, such law or resolution shall stand as the law of the state, and shall not be overruled, annulled, set aside, suspended, or in any way made inoperative except by the direct vote of the people." Nevada Constitution, art. 19, sec. 2 (1904).

2 "No law or amendment to the constitution initiated and approved by the electors as herein provided, shall be held unconstitutional, or void on account of the insufficiency of any initiative petition; nor shall the repeal of any law submitted by the referendum petition be held invalid for such insufficiency." Minnesota Constitution, art. 4, sec. 1 (d), rejected (1914). See W. F. Dodd, Revision and Amendment of State Constitutions, pp. 228–36 (1910); Oregonian, July 28, 1915, p. 6, col. 2. F. V. Holman, Some Instances of Unsatisfactory Results under Initiative Amendments of the Oregon Constitution, p. 46 (1910).

proposition shall be in the affirmative, it shall take effect ten days after the completion and certification of the official canvass of the votes, the same excepting with respect to the time it takes effect, as if its enactment had been authorized by the constitution, which shall be deemed amended so as to authorize it, and it shall be subject to amendment and repeal the same as other laws." 1

On account of the practical obliteration of differences between constitutional and ordinary statutory law under the system of initiative legislation in Oregon, it would seem that a provision for the "recall of judicial decisions" would add absolutely nothing to the power which the people already possess. "If the Oregon supreme court declares unconstitutional a law the majority of the people want, we can write that law into the constitution by initiative just as easily and by the same process that we write an ordinary statute." The people may thus easily change the constitution "piece-meal," to nullify, for the future, the effect of a specific judicial decision, or "wholesale," to change a broad principle of constitutional law. It is probably for this

3

1 House Joint Resolution, 1913, no. 12. See Oregonian, Feb. 5, 1913, p. 8, col. 2; Oregon Journal, Feb. 6, 1913, p. 4, col. 4.

"None of the said courts except the supreme court shall have any power to declare or adjudicate any law of this state or any city charter or amendment thereto adopted by the people in cities . . . as in violation of the constitution of this state or of the United States; provided that before such decision shall be binding it shall be subject to the approval or disapproval by the people. . . . All such laws or parts thereof submitted as herein provided when approved by a majority of the votes cast thereon ... shall be and become the law of this state notwithstanding the decision of the supreme court. ... All such charters, or amendments thereto, . . . when approved by a majority of the votes cast thereon . . . shall be and become the law of this state and of said city . . . notwithstanding the decision of the supreme court." Colorado Constitution, art. 6, sec. 1 (1914).

Below, pp. 180-4. See A. L. Lowell, Government and Parties in Continental Europe, vol. 2, pp. 296-7 (1896); W. F. Dodd, Revision and Amendment of State Constitutions, pp. 252-8 (1910). 'Oregonian, Mar. 1, 1912, p. 10, col. 3.

That the "recall" of decisions allows gradual and partial reform in place of change of general principles by constitutional amendment, has been considered, from a generally conservative point of view, to be a disadvantage rather than an advantage. "The impatient man, in his haste to undo an individual wrong, thus would leave the

reason that there has been little popular interest here in this innovation of government.

general wrong unredressed. The patient man, who strikes at the root of an evil, uses the individual wrong as an ax wherewith to hew out the roots and to bring down the whole evil growth. Not because recall of decisions impairs the dignity and independence of the courts; not because it is necessary to right judicial wrongs, but because it is reform by piecemeal, is the measure unwise. We had better by far wait longer and make a complete job of the reform." Oregonian, Dec. 9, 1913, p. 10, col. 2. See also ibid., Nov. 2, 1913, sec. 3, p. 6, col. 4.

CHAPTER XXI

DIRECT LEGISLATION AND THE CONSTITUTIONAL CONVENTION

A BILL providing for a constitutional convention was defeated in the legislative assembly of 1905, three years after the system of direct legislation was adopted. Those back of the movement were suspected of the intention of securing the abolition of the initiative and referendum,' but doubtless opposition was caused also by a belief that under the system of direct legislation the constitutional convention is a superfluity. In order to safeguard the new system, the People's Power League in 1906 was instrumental in placing on the ballot a constitutional amendment providing that "no convention shall be called to amend or propose amendments to this constitution, or to propose a new constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election." This was adopted by the people.

In 1909 a bill calling a constitutional convention passed the legislative assembly and, under the law, was submitted for the decision of the people. The friends of the movement urged the necessity of a systematic revision of the "ancient" constitution, in place of the "piece-meal" methods prevailing. "Shall we continue, at a great expense, to attempt, in the present spasmodic, erratic and. unsystematic manner to revise a faulty constitution? Shall we continue, at each succeeding election, to vote upon amendments proposed by any manner or group of men? Shall we continue to 1 See especially Oregon Journal, Jan. 27, 1905, p. 4, col. 1; Feb. 1, 1905. p. 5, col. 5. 2 Cf. C. E. Ladd, quoted in Arena, vol. 29, p. 271 (1903). Constitution, art. 17, sec. 1 (1906).

adopt proposed amendments without amendment or debate? Shall we continue to allow our constitution-making to be done by self-appointed law-makers who are responsible to nobody? Would it not be better to submit the whole question to a body of sixty men, selected according to law, and then at the polls pass upon the results of their deliberations? Would it not be better to follow some well-defined plan than continue to patch our constitution piece-meal and at random, where those who prepare the amendments are generally unknown and responsible to no constituency?" 1

But the motives of the advocates of the convention were suspected. "It was urged by those who were responsible for the passage of the bill calling for the convention that our constitution was coming to be a motley affair and was sadly in need of complete revision. It is probable that the average citizen has not felt the urgent need of this revision to the same extent as the professional politician who finds many of the opportunities and much of the boodle of his former occupation cut off by the present provision of the constitution giving the people a direct control of the affairs of the government. This is the bright particular spot in the present constitution at which these revisionists are aiming. It is the elimination of this feature which they hope to secure by the adoption of a new constitution. Most of us have been laboring under the impression that when anything particularly wrong should be found in our constitution we have a comparatively easy method of remedying the difficulty; we have felt that we had reached a point beyond the necessity of a constitutional convention. Not so the politician, and those who look to him to promote their interests. They want to do away with the initiative and referendum. At first they hoped to do it through the courts. They realize the hopelessness of taking it directly to the people, at least at the present time. But the constitutional convention could be packed and

1 C. N. McArthur, Need of a Constitutional Convention, Proceedings of the Oregon Bar Association, 1908-10, pp. 148, 157.