FERGUSSON Addresses on the Making of a Constitution JK 8019 F47 BULLETIN OF TH E ftmwrmtg af Nnu WHOLE NO. 57 OCTOBER, 191O , x O R E S S E S O N THE MAKING OF" A CONSTITUTION BY H RGUSSON AND FRANK W. CLANCY ALBUQUERQUE, NEW MEXICO Published Quarterly by the Univerv uco. Entered May t , 1906. at que, New Mexico, a *ecor *!3 of July 16, 1894 THE MAKING OF A CONSTITUTION INTRODUCTION BY E. McQUEEN GRAY Having regard to the importance which rightly at- taches to the transitional period through which the Territory of New Mexico is now passing and to the far reaching effects of such a civic and social change as now is imminent, affecting not merely the popula- tion of the Territory as a body politic, but the mutual relations of each and every citizen to one another and to the State, it has seemed advisable, in the interest of the student body of the University of New Mexico, to use every opportunity that might present itself to lay before the students the views of leading citizens in re- spect to the rights, duties and privileges of the citi- zens of a State under the Union; and as the public transactions at present occupying the attention of the people of the Territory consist in the framing of regu- lations for the future governance of the State, I took leave to invite expressions on this head from two well known representatives of the two political parties in order that you might be able to form an opinion as to what matters should properly come within the scope of the deliberations of those who have been selected ot frame the constitution of the future State, and also to get some idea as to the manner in which a different point of view affects an estimate of the same subject. Both of the speakers who have appeared before you 2 UNIVERSITY OF NEW MEXICO are men who enjoy the general esteem of the citizens of the Territory, and both are entitled to respectful atten- tion; but it must be premised that their attitude is not to be understood as representing the consensus of opinion of either of the two political parties to which they belong. Instead therefore of a Democratic or Re- publican point of view in regard to the making of a constitution, you have listened, strictly speaking, to two addresses on that subject, one delivered by a Democrat and the other by a Republican. How far the views of either speaker represent the attitude of the respective parties is a question which it is not appropriate to dis- cuss in this place; but. inasmuch as the question of civic duties and privileges will occupy your attention during a large part of the academic year, I feel it incumbent on me to advise you in all such matters as are affected by or subject to political or party considerations to observe the old adage, atidi altcrain partem listen to the other side. Properly considered, no place offers more suitable conditions for the consideration of such questions as the one which has been presented to you as does a State University, with which institution a partisan atti- tude is wholly incompatible, but which may appropri- ately offer an open forum for the free and untrammeled expression of opinion on all subjects affecting the gen- eral welfare from those who are entitled to speak with authority thereon. Such an opportunity has been of- fered to the speakers who have addressed you and I trust that you who have listened to them have profited thereby. In view of the relation of the addresses to the subject of discourse, "The Making of a Constitution," some information of a more technical character will not here be out of place. THE MAKING OF A CONSTITUTION 3 The Constitution of a State is, in its essential char- acteristic, the fundamental organic law of the State. All subsequent legislation and all social relations must be based in conformity with its provisions; it is at once the foundation and the framework of the future edifice in which the rights of the people are safe- guarded, their duties set forth and their privileges de- fined. It is brought into being by the consent of the general body of citizens and is capable of being altered or repealed in that manner alone. Being the concrete expression of the popular will, it stands above the legis- lature and the executive, both of whom derive their powers from its provisions ; and any legislative or exe- cutive action which is inconsistent with these provisions or in excess of the powers conferred by them, is with- out validity. The State itself exists by virtue of its constitution. Being therefore not merely important to the general welfare but essential to the very existence of the State, the making of a Constitution is the most serious civic action which citizens can perform ; for upon the char- acter of their performance the future of the State and of its citizens will largely depend. The procedure to be followed in the case of New Mexico and Arizona has therefore been carefully designed to furnish security to all concerned. In general terms, the object of a State Constitution is the same as that which was aimed at by the framers of the original Constitution of the United States ; but in the framing of the instrument itself a more or less uniform procedure is followed, founded largely upon the methods observed in drafting the constitutions of the original States, which were themselves the continuation and development of the early colonial charters. Of re- 4 UNIVERSITY OF NEW MEXICO cent years the framework of a State Constitution has been fashioned much after the following manner : Be- ginning with a Preamble, it may be divided into the following sections : Definition of extent and boun- daries of the State; The Bill of Rights; The Frame of Government; Administration and Laws; The Schedule. The Preamble states in general terms the objects aimed at by the Constitution. No better example of a Preamble exists than the one prefixed to the Constitu- tion of the United States and running as follows : "We, the people of the United States, in order to form a more perfect union, establish justice, insure do- mestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and es- tablish this Constitution for the United States of America." The Bill of Rights, which generally follows the definition of the extent and boundaries of the State, is a statement, more or less expanded, of the right of the citizen to liberty of person and security in respect to prosperity, freedom and equality in regard to religion, and other rights of similar scope and character. The enumeration varies considerably in the different States, but in all the aim is the same to secure to each and every citizen those rights and privileges which are generally understood to be essential to the enjoyment of freedom in a republican commonwealth. In the Frame of Government we have a section which provides for the machinery whereby the government of the State will be administered. This, as you are aware. is in its essential parts identical in all the States, being substantially a democratic development of the THE MAKING OF A CONSTITUTION 5 old colonial form of government. Everywhere we have, as you know, a chief executive or governor, a number of administrative officers, appointed or elective, a legislative assembly consisting of two houses, a judi- cial system and a system of local self government ; minor differences, in regard to term of office, qualifica- tions for official or representative positions, methods of local government, and so forth, are frequently found ; but the main plan is practically the same. The section dealing with general administration and law, frequently termed Miscellaneous Provisions, is at once the most important and the most interesting part of the Constitution ; and you will have observed that both of the speakers who addressed you directed your attention in real measure to matters which would be as- signed to that section. This miscellaneous division covers such subjects as military service, taxation, reve- nue, law, public debt, banking, railways, education, and agriculture ; and has of late years come to include many other matters not strictly constitutional, but for the settlement of which the framing of a Constitution would seem to offer an opportunity. The tendency, of late years appears to be to endeavor to use the pro- visions of a Constitution for the expression of the feel- ing and desire of the people in regard to many social and economic problems and for the abatement of mis- chievous conditions ; and this tendency may be taken as representing the general trend of popular government. The Schedule sets forth the method by which the Constitution shall be submitted to the vote of the peo- ple and the manner in which the change from the Ter- ritory to the State shall be brought about. The Making of a Constitution BY H. B. FERGUSSON Delivered at Rodey Hall, University of New Mexico September 19th, 1910 Congress has lately passed the Enabling Act, grant- ing the authority to New Mexico to form a constitu- tion, and enter the Union as a state, upon exactly the same footing as all other state. The usual conditions and restrictions are contained in our Enabling Act, as in those of other states, mainly relating to Federal power and rights under our peculiar form of govern- ment, with one exception that requiring all state offi- cers of the State of New Mexico to be able to read, write and understand the English language. If we form for the State of New Mexico a constitu- tion not in conflict with the constitution of the United States, complying with the conditions and restrictions of the Enabling Act, and republican in form, it will be the duty of the President to declare that New Mexico is a state. From the beginning, as to every state in the Union, it has been conceded that, having complied in their constitution and laws with the requirements of the Federal law, the people of the state are sovereign in regulating their own internal affairs; their power is left supreme to govern themselves. The requirement that the constitution shall be "re- publican in form," evidently means that the power of the people shall be exercised, in governing themselves, through the well-approved channels of legislative, ex- ecutive and judicial departments; the officers in those THE MAKING OF A CONSTITUTION 7 departments being none the less the agents and repre- sentatives of the people. Some of the oponents of the initiative, the referen- dum and other principles, designed to enable the people to correct abuses of state government, on the part of the representatives of the people, seem to assume that, once elected, officials are infallible for the terms for which they are elected, or, at least, however corrupt or false to the people they may prove to be, that they or their acts cannot be reached or controlled by the peo- ple, even by constitutional provision; that even in the state constitution, the initiative, the referendum, etc., would be unconstitutional under the constitution of the United States. But that the representatives of the people in a legis- lative body may go wrong, is recognized by the power of the veto, universally vested in the Governor; that the executive in this function, may need supervision, is recognized by the provision that the Governor's veto may be overridden by a two-thirds vote of the legisla- ture. And even the judges may be impeached, to say nothing of the fact that stringent rules are provided for appeals from their decisions. And in the Enabling Act itself it is provided that after the constitution has been prepared, by the representatives of the people, elected for the purpose, it shall be submitted to the vote of the people for acceptance or rejection. This is the referen- dum, applied by Congress. It recognizes that ultimate power is still in the hands of the people, and may be constitutionally exercised, even in momentous affairs, over their elected representatives. Precisely the same principle, thus applied by Con- gress, we advocate for insertion in New Mexico's con- stitution. We want the people to reserve to themselves 8 UNIVERSITY OF NEW MEXICO in their constitution, the power to reject or annul any law that the legislature of the State of New Mexico may hereafter pass. It is but an additional restriction, or people's safeguard, over or against the ignorance, or carelessness, or self-interest, or corruption of the peo- ple's representatives in the legislature. The initiative is the counterpart of the referendum, the other blade of the scissors, so to speak. It is the power, reserved to the people in their constitution, to propose a law, deemed necessary or beneficial to the general welfare; and if the legislature refuses to enact it, whether from indifference or because of the corrupt influence of special interests that might be affected by the proposed law, then to have a day reserved for a vote by all the voters of the state, as to whether such proposed law shall become an actual law. And if a majority is found to have voted in favor of the law, then the Governor shall proclaim it to be a law of the State. These principles, then, known as the initiative and referendum, and other cognate ones, such as the recall, direct primaries strictly controlled by law, for the nom- ination of candidates of the political parties, the nom- ination of United States senators by direct vote of the people themselves rather than by the people's represen- tatives in legislatures assembled are not in contra- vention of the constitution of the United States; be- cause they do not change the "republican form" of any state government, but are merely safeguards to pro- mote the beneficial character, the virility, the purity and the perpetuity of our system of representative gov- ernment. Others object that the principles give too much power to the people, that they will result in "mob rule". This THE MAKING OF A CONSTITUTION 9 objection begs the question, and raises the issue whether any people are capable of governing them- selves. Are we ready to give up on that issue and abandon a system of government which Washington and Jefferson founded, which Jackson vindicated, and which Lincoln prayed might never perish from the face of the earth? The purpose of the initiative and referendum is, not to change the form of the government, but to strengthen the system of the people's government, in the one point where it has been found weak, namely the inability of the officers, or representatives, elected by the people, to resist the power of great concentrated wealth, which, while very powerful, at the same time has been shown also to be insatiable, conscienceless, if not actually criminal, and utterly oblivious to all senti- ments of patriotism, or fair play. Another objection urged is, that the initiative and referendum will result in too-frequent elections. This objection is not worthy of much consideration ; for as soon as legislatures become responsive to the needs of the people, and temptation has been removed to become the representatives and servants of "predatory wealth" and "malefactors of great wealth", to borrow from the vivid vocabulary of the resolute Roosevelt, the initiative and the referendum and the recall will not need to be used often. The very power in the people to quickly undo any wrong done by their representatives, will dis- courage the doing of the wrong. Tt is also urged that we will not be admitted as a state if we insert in our constitution these progressive principles. There are two answers to this threat of the corporations and other special interests. One is, that if we are willing to pay such a price for statehood as 10 UNIVERSITY OF NEW MEXICO cowardly refraining from putting into our constitution such provisions as we please, or such safeguards as we believe will promote the happiness, prosperity and good government of our state, we are unworthy of state- hood ! And if the threat should be made good, and our constitution rejected by this administration, because we refuse to make our. state and her wealth the prey, the common plundering ground, of the trusts and mon- opolies, as they are now trying to make the Territory of Alaska, we can well afford to wait for statehood un- til another administration comes into power. The ris- ing tide of indignation against government of the spe- cial interests, by the special interests for the special interests, as manifested by the late elections in the Democratic states of Georgia and Arkansas, and the Republican states of California, Maine, New Hamp- shire, Massachusetts, Michigan, Wisconsin, and the State of Washington, insures that a great flood of old- time American patriotism will soon sweep from power this sordid plutocracy; and then we shall go in as a state under our home-made constitution, as befits free American citizens. The other answer to this threat is, that there is no danger that President Taft will refuse us statehood because our constitution contains these principles. Ok- lahoma was admitted, and the number of Republican states which have already amended their constitutions by inserting them, and the larger number that are striving to thus amend their constitutions, remove the danger of such action by the President. The Republi- can state convention of California, after many years of brutal control of that state by the Southern Pacific Railroad, has in the last few days declared for them in these words : "The submission to the people of con- THK MAKING OF A CONSTITUTION H stitutional articles providing for direct legislation in the state, and in county and local governments, through the initiative, the referendum and the recall." The advantages of these principles are obvious. They will remove temptation from weak representatives of the people, by taking away from the special interests the profit, or motive, for the corruption of legislatures or city councils. They will not spend money to induce the people's representatives to do, or fail to do, what the people will undo or do themselves in short order. But a controlling reason why we should make them a part of our constitution is set forth in a thoughtful speech, in advocacy of our so adopting them, by ex- Governor Hagerman. We quote : "One-ninth of the whole area of the Territory of New Mexico is granted to the new state by section seven of the Enabling Act; that is to say, one eighteenth of the whole present area of New Mexico, in addition to what has already been granted by the Act of June 28th, 1898, known as the Fergusson Act. The Fergusson Act granted sections sixteen and thirty-six for the support of common schools, and this Enabling Act appropriates in addition, sections two and tliirty-two of each township. . . . This means one-ninth of 78,300,000, or 8,700,000 acres, inasmuch as sections sixteen and thirty-six, which already have been granted to the terri- tory, cannot be sold until after we become a state. The En- abling Act distinctly provides, too, that when any of the sections are mineral, or have been disposed of, or reserved in any manner by homestead or otherwise, lieu selections of like quantity may be made. "But there is much more than this which will come under the management of the future State Land Board. The Act of 1898 granted to various territorial institutions and for irri- gation purposes, 1,197,000 acres of land. . . . Now. the Enabling Act grants to these various institutions an addi- tional amount of 1.250,000 acres, and also 1,000.000 acres more to pay the Santa Fe and Grant County bonds. This makes a grand total of 12.147.000 acres of land, selected, and 12 UNIVERSITY OF NEW MEXICO to be selected, which will, when the state is completely sur- veyed, be in the hands of the people of the state, or in the hands of their representatives." I would add to what Governor Hagerman so aptly says, that the land granted in 1898 has been handled in such a maner by the ruling regime in this territory as to rouse the suspicion and incur the condemnation of many good citizens of New Mexico. Shall we not adopt the initiative and the referendum, and every other safeguard possible, to save this im- mense domain from marauders of high and of low de- gree? Shall we not prevent special interests and their representatives from realizing on this land, and shall we not keep the power of the people in close control of it, for the building up of our common schools, and for other educational and charitable institutions? An hon- est and economical administration of that immense landed estate will make our schools and colleges, and our public institutions of every kind, rich and prosper- ous, and place them in the front rank of efficiency, use- fulness and high excellence, in our national civilization, without adding to our already burdensome taxation. It is idle for the special interests, and their agents and attorneys in New Mexico, to attempt to charge that we will drive capital from the state and prevent other capital from coining in. This threat is a hoary old ani- mal with its fangs long since drawn. It was the cry from the beginning of the movement to regulate rail- roads by the general government and by the states, Iowa, Texas, Kansas, they need not all be named. Texas, our neighbor, laughing at the threat, inaugu- rated a vigorous control over railroads ; and since such control was put in force, the railroad mileage of Texas has been vastly increased. So in other states. And THE MAKING OF A CONSTITUTION 13 since control by the general government and by many of the states through which it runs, the Santa Fe rail- load system has seen its common stock rise in value from about twenty cents on the dollar to about par, or one hundred cents, as pointed out by John Z. White. Nobody in New Mexico desires to use the people's power to oppress the railroads. On the contrary, we welcome railroads and all other forms of corporate wealth. We propose to make and improve the laws of the state of New Mexico so ao not only to protect them in their rights under the law; but so as to insure the maniple returns on all the capital invested. We want developed our vast forests of timber, our millions of acres of untouched coal, our hidden wealth in the precious metals, our agricultural possibilities under ir- rigation and improved methods of farming; and we welcome associated capital, or corporations, which are indispensable under the business processes of our time, to do those things. But the people, and the constitu- tion and laws of the people, must be supreme and must be acknowledged and obeyed. Less than this, or other than this, would be to yield, or allow to be forced from us, immunity for the special interests, full license, with- out restraint of law, to appropriate for their own fur- ther enrichment, our boundless resources. The Enabling Act provides for two constitutional conventions, or, rather, for a second assembling of the constitutional delegates which were elected on Septem- ber 6th, if the people should reject at the polls the work of the convention at its first, sitting. If the constitution promulgated by the convention which will convene early in October, should be rejected by the people, it then be- comes the duty of the Governor to call within twenty clavs after such rejection, another session, or meeting 14 UNIVERSITY OF NEW MEXICO of the delegates, for the purpose of preparing another constitution, to be submitted to a vote of the people. So we shall not defeat immediate statehood, on our part, by voting down the first constitution offered. It is, therefore, earnestly to be hoped that if, by the influ- ence of special interests, these progressive provisions are not inserted in the constitution, the people will re- ject it. If they do so, perhaps the convention, when it re-assembles within twenty days, under the call of the Governor, instructed by so recent a vote of the people, will yield to the wishes of the people. If not, let us re- ject statehood on such debasing conditions. But we need not yet despair of statehood under the Enabling Act ! It cannot be doubted that a large ma- jority of the people of New Mexico are in favor of a progressive constitution that will insure to the new state honest, decent and economical government. It is true there is a nominal Republican majority in the consti- tutional convention ; but many of these Republican del- egates were elected upon platforms pledging such dele- gates to a progressive constitution. San Miguel County (nine delegates) and Coif ax County (five dele- gates) are understood to be opposed to a progressive constitution, or to any restrictions on corrupt county bosses and their corrupt methods at elections, as well as to any- restrictions on corporations, even if owned largely in foreign lands, and the control by such cor- porations of the ballot boxes, and even the casting of the ballots by free American citizens! In short, they are understood to be opposed to any constitution with anything in it but what is "safe and sane" for the afore- said county bosses and the aforesaid corporations, un- American certainly in their practices! Let the people be active and incessant, through their THE MAKING OF A CONSTITUTION 15 free newspapers, and by letters and conversation, in urging upon their delegates the great responsibility they are under to give the people a constitution fit for honest men to live under, and that will bring about, in New Mexico, "the greatest good to the greatest num- ber." I thank you, ladies and gentlemen of the faculty and students of the University of New Mexico, for lending to me this elevated point of vantage before you, to speak what I feel so deeply, upon "the making of a constitu- tion." The Making of a Constitution ADDRESS BY FRANK M. CLANCY Delivered at the University of New Mexico September 26th, 1910 I have been admonished that there is a time limit of forty minutes which must be observed by those who address you upon such occasions as this, and therefore I shall be able to do no more than briefly to touch upon the more salient and important matters to be embodied, or avoided, in a state constitution. It will be unfortunate if the making of our constitu- tion is to be treated as a partisan political matter, and it is to be hoped that on few, if any, questions, will our approaching convention be divided on party lines, al- though there are strong efforts being made to bring about such an undesirable condition. I am quite sure that many Democrats would agree with me as to the greater part of what I shall say to you today, and I am equally sure that some Republicans would not. To the student of our political history, who has familiarized himself with the principles of the great political par- ties of our country, it will be clear that my views are in harmony with the tenets of that party, called at differ- ent times federalist, whig, republican, which has always stood for strength and stability of government, com- bined with due protection of the citizen, and for con- centration of power and consequent increased sense of responsibility, as contrasted with that opposite school of thought, which, while ardently devoted to the advo- cacy of the rights of the individual, is based upon hos- tility to, and jealousy of, all exercise of governmental THE MAKING OF A CONSTITUTION 17 power (a remnant of the feeling of past ages when government was by the few, under claim of "divine right" against the many) and which, could it have had full control in the first years of the republic, unchecked by a federalist supreme court, would almost certainly have disintegrated our national government. I shall avoid any criticism of the motives of those who do not agree with my views and also any appeal to popular prejudice or party political feeling, although I cannot refrain from calling attention to the fact that those who do not agree with what I have to say, appear to consider vituperation, personal abuse and eloquent denunciation as argument on such questions. In the consideration of the subject of the making of a constitution, it will be well at the outset to present some distinct and definite idea of what a constitution is, or should be. While it is true that we all may have in mind definitions of a constitution, yet a clear, concise statement, embodying the substance of the best of them, may tend to make more intelligible what may be said on the subject. It may be taken as axiomatic in this country that the source of all governmental power is to be found in the people themselves, or in the "consent of the governed." A state constitution, then, must be an expression of the will of the people, an expression of the "consent of the governed," as to the method by which government shall be carried on. From the numerous judicial ex- pressions by the appellate courts of the country, we may condense, as a satisfactory and comprehensive defini- tion, that a state constitution is a compact by and be- tween the citizens to govern themselves in a specified manner, setting out first principles of fundamental law as the permanent will of the people, regulating the di- 18 UNIVERSITY OF NEW MEXICO vision of governmental powers while at the same time limiting and controlling their exercise, and should, in brief, constitute the framework of the government. Be- ing, thus, properly only a framework, it should not descend to a regulation of the details of governmental business, nor attempt by provisions akin to legislation, to provide for immediate, possibly temporary, exigen- cies, but should do no more than indicate on broad, general lines, the powers of the different departments of the government, and the necessary limitations to the exercise of those powers. From this it will be readily seen, as a general proposi- tion, that, in the making of a state constitution, there would seem to be no limit upon the power and author- ity of the people, but there is one general limitation which must always be kept in mind, and that is in the constitutional guarantee that every state shall have a republican form of government, which naturally leads to a consideration of what is meant by the phrase, "a republican form of government," as used in the con- stitution of the United States. It is obvious that we must limit ourselves to what was intended by the au- thors of the constitution. The words "republic" and "republican" have in the history of the world been ap- plied to varied forms of government, many of which are quite different from our ideal of republic. This is clearly pointed out by Mr. Madison in No. 39 of "The Federalist," where he sets out what are the essential requisites of a republican form of government, and de- clares that the federal constitution is in the most rigid sense conformable to the standard of a republican form. We might well take the government of the United vStates, as created by the constitution, as a criterion by which to judge whether any state government is or is THE MAKING OF A CONSTITUTION 19 not republican in form. If we find any substantial, fundamental, departure from the general principles and general forms of government created by the national constitution, we should believe that such departure would not be consistent with the constitutional idea of a republican form of government. Upon this point, how- ever, we have the authority of the greatest court in the world as to what this language means. In the case of Minor vs. Happersett, 21 Wallace, 175, the court uses the following language: "The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. "The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution." It is here to be noted as apropos to the subject which is now more widely discussed than any other in New Mexico, that in each of the state governments which Chief Justice Waite says furnish "unmistakable evi- dence of what was republican in form," all govern- mental powers and functions, including the power of legislation, were delegated by the constitution to officers chosen directly or indirectly by the people, and that in no case did the people attempt directly to exercise any of such powers or functions. It must be clear that the recent movements in a few of the states of the Union. 20 UNIVERSITY Of NEW MEXICO having for their object the assumption of the duty and burden of direct legislation by the people themselves, are revolutionary in their character and clearly involve a departure from one of the fundamental ideas of a republican form of government at the time of the writ- ing of the federal constitution. This subject is here introduced perhaps a little out of its natural order, and this is done because it is of more general interest than anything else at present in con- nection with our proposed constitution, and seems called for by the primary, fundamental consideration of what the form of government must be. Somewhat later, another chief justice of the Supreme Court of the United States, in the case of Duncan vs. McCaU, 139 U. S. 461, uses the following instructive language : "By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power repoesd in repre- sentative bodies whose legitimate acts may be said to be those of the people themselves; but while the people are thus the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities." It is quite true that a very recent constitution which included the initiative and referendum, was accepted and approved by a President of the United States as being republican in form, but this was done, as is gen- erally understood, against the advice and recommenda- tion of a great lawyer, who is now himself the presi- dent. The sentiment in favor of the initiative and referen- dum is a survival of the Utopian and visionary ideas of THE MAKING OF A CONSTITUTION 21 a purely democratic form of government ideas which had their advocates at the time of the foundation of our national government, and which were as well under- stood by the authors of the constitution as they are by any one today, and there can be no reasonable doubt that, by the particular form of language used in the constitution, it was the intention not to include a demo- cratic form of government. A brief quotation from a comparatively recent work on constitutional law will show how clearly the author perceives this distinction : "The system of government in the United States and in the several States is distinguished from a pure democracy in this respect, that the will of the people is made manifest through representatives chosen by them to administer their affairs and make tht-ir laws, and who are intrusted with defined and limited powers in that regard, whereas the idea of a demo- cracy, non-representative in character, implies that the laws are made by the entire people acting in a mass meeting or at least by universal and direct vote." The above-quoted language was not written with any view to an application to present controversies, as the book was published as far back as 1887. Another quotation from a much more recent author, whose highly esteemed book was published a little over two years ago, may be of interest in this connection. The book is that of Mr. Stimson on "The Law of the Federal and State Constitutions," and at page 56 we find the following : "The state initiative is, of course, direct legislation by the people; and this, it must be noted, is no new thing, but merely a recurrence to primeval principles, doing away with that invention of representative government which has served the English people well for a thousand years and has been com- mended as their peculiar contribution to political science. Direct legislation early existed in England, as least as to the freemen or greater barons; indeed, mention is made by his- torians of a Witenagomot of sixty thousand men meeting on .Salisbury Plain not very long after the Conquest. The incon- 22 UNIVERSITY OF NEW MEXICO venience and expense of such large assemblies, coupled per- haps with the notion of greater wisdom in their chosen rep- resentatives, gave rise to the device of representation. It is difficult to see why the objections of a thousand years ago do not apply today, at least as to the initiative, and even to the referendum. The inconvenience of referring all laws to the people is already shown in the usual provision that they must be allowed to vote on each amendment to the Constitution separately, and that not more than two or three amendments may be submitted in any one year; for submission of a law by referendum is practically the same in working as that of a constitutional amendment." Again, on page 59 of the same book, will be found some further suggestions, worthy of respectful consid- eration : "A more radical measure still, is that of the recall; that is, any senator or representative, or possibly even a Judge or other officer, may be instantly retired by a direct vote of the people. As to this, and indeed the referendum, it may safely be said that the laws should be very careful to require a sufficiently large proportion of the total vote. The writer believes the most serious danger of the initiative and referen- dum to be its perversion to the very corrupt purposes the institution is designed to prevent. It would be easy enough for a public service corporation, directly or indirectly con- trolling possibly a tenth of the voters of an entire city, to propose complicated laws, by initiative, which the people might find hard to understand or in which they would take little interest; and so rush them through a popular election by a vote of their tenth of the votes, the rest of the people not taking the rouble to understand the question. The ex- perience of constitutional amendments has shown that the votes upon them are ridiculously small. In New York, for in- stance, in 1905, a constitutional amendment altering the en- tire economic law as to the rate of wages to be paid in public work, passed the popular electorate by a vote hardly one- tenth of the total vote thrown for Governor, a far less im- portant matter." Thus we may see, as to this important and much dis- cussed subject, we are confronted with the very serious THE MAKING OF A CONSTITUTION 23 danger that the adoption of direct legislation by the people might be such a departure from the republican form of government guaranteed by the constitution, that a lawyer-president, more intent upon the conscien- tious discharge of his duty than upon the temporary exigencies of partisan politics, might feel himself con- strained to withhold his approval which is essential to our admission to the Union; and then we have the se- rious objections to the practical working of the pro- posed new system. As to the latter subject, is there anything in the his- tory of republican or democratic governments to induce us to believe that we would obtain any better results through direct legislation by the vote of all the people, than we have had by the exercise of the delegated power of the people acting through their chosen representa- tives ? It must be admitted that a comparatively small portion of the voters of our country take active interest in purely public questions involving the welfare of the whole state, and a still smaller portion who give time to the study of such subjects so that their interest may be intelligent as well as active. It may be well to consider, briefly at least, what can be said in favor of the adoption of the initiative and referendum as a practical question, putting aside consti- tutional objections. It is urged, in substance, that it is impossible for the people to elect a legislature which will respond to their desires and which will not promptly succumb to the corrupting influences of per- sons and corporations possessed of wealth and power and desirous of securing legislation for their selfish pur- poses, without regard to the public interest. It is, therefore, believed that, if the people can retain in their own hands the power to force upon the legislature by 24 UNIVERSITY oe NEW MEXICO initiative the enactment of laws which, when once adopted, necessarily must be beyond all legislative con- trol, as otherwise the plan would be futile, and by the referendum the submission to a popular vote of those legislative enactments which a small percentage of the voters consider objectionable, then the evils arising from the inevitably weak, dishonest and corrupt nature of persons elected to the legislature, will be greatly diminished, as the knowledge that laws may be referred to the people will tend to discourage the purchase of legislation by unscrupulous schemers against the public good. It is believed that the foregoing completely, although very briefly, states the arguments in favor of the initia- tive and referendum, and it is to be noted that the principal foundation of the argument is in the assumed incapacity of the people to elect proper men as members of the legislature. If this is correct, it is difficult to see how the evil will be remedied by having the people at large do their own legislating when but a small por- tion, either by inclination, training or experience, is fitted for such work. It is quite impossible to under- stand how the people who, as is assumed, have not suf- ficient knowledge and judgment to select decent, honest and incorruptible legislators, will have any better or more judgment, or will be transformed from blind fol- lowers of wicked political leaders into beings of su- perior discernment, merely because they are called upon to vote upon the adoption or rejection of laws, with no more time nor opportunity for study and examination of them than they now have for the consideration of the merits of candidates for legislative office. Our difficulties do not come from the incapacity or inability of the people to vote wisely in the election of legislators. THE; MAKING OF A CONSTITUTION 25 but are due to the fact of the practical indifference of the masses to matters of general public concern, and this applies, not only to the ignorant and uneducated, but to the average citizen of superior knowledge and intelligence, and that indifference cannot be dissipated by changing the purpose of an election from the choos- ing of men to the adoption of laws. On the contrary, there is every reason to believe it would be greater. While it is true that the initiative and referendum have not been in operation in any part of our country a sufficient length of time for us to draw safe and certain conclusions from their practical workings, yet a lesson may be learned from what has happened in the state of Oregon. Between June, 1902, and the end of 1909, there were submitted to the people of that state 32 dif- ferent pieces of legislation, 19 of which were submitted at one election, and it is reported that more than 30 others are to be voted upon at the next state election. It is not to be assumed that the voters of Oregon are very different in virtue, intelligence and public spirit from those of New Mexico, and it is certainly difficult for us to believe that even a respectable minority of the Oregon electors who adopted or rejected the laws upon which they voted, were fully and intelligently informed as to what they were doing. \Ye do not know just how the campaigns as to these questions were conducted in Oregon, but it is not unsafe to assert that they were carried on much like other political campaigns, and that the people were led to vote for or against the laws by the personal influence or eloquence of those in whom they had confidence, by the business or other pressure of those to whom they were under obligations ; and it is equally safe to assert that legislation procured by these methods will be even less beneficial to the public than 26 UNIVERSITY OF NEW MEXICO that which results from the efforts of the average leg- islature, hedged about and restricted by constitutional limitations intended to prevent hasty, ill-considered leg- islation. If corporate greed or the unscrupulous selfishness of any class of people should earnesly desire the adoption or rejection of any law, without regard to the public welfare, those who might be animated by such im- proper motives would take an active and vigorous in- terest in the election, while a great proportion, perhaps a majority, of the people would remain indifferent and unconcerned. That this is possible is clearly shown by a story which comes from Los Angeles and which I am assured is entirely true. A scandalous condition exist- ed in that city as to ill-regulated and vice-creating dance-halls. An ordinance was adopted by the city for the purpose of regulating and restricting this evil. The vicious and demoralized classes, interested in the dance- halls, with great ease secured the necessary number of signatures of voters for a referendum as to this ordi- nance, and having an active interest in the matter, voted in full force against the ordinance, while the average citizen paid no attention to the election. As a result, the ordinance was set aside. It is ordinarily quite unsafe to prophesy as to the fu- ture, and personally I have, as a rule, been quite un- willing to do so ; but I feel convinced that the most of us who now earnestly, and some of us intolerantly, urge the adoption of these revolutionary ideas in our state governments, will live to look back with wonder upon what is happening today, viewing it as an exhibi- tion of temporary insanity, our only consolation then being that we were at least honest and sincere in the course pursued. If my time would permit, a number of similar widespread political movements in our history THE MAKING OF A CONSTITUTION 27 could be pointed out, which are now memories only. Turning aside from these particular subjects which, at the present time, engross public attention almost to the exclusion of other constitutional questions, it may be said that our constitution, like that of the United States and those of the different states of the Union, should adhere to the general plan of making three great divisions of government, the legislative, the executive, and the judicial, and we should strive to keep the line of demarcation between these departments as clear and distinct as is practicable. If they could be brought into existence by entirely different methods and each kept entirely independent of the others, that might be an ideal condition, but practically this does not seem possible, as all must come, directly or indi- rectnly from the people as the original source of power. Something can be done in that direction, how- ever, as I will endeavor to show. It was said by de Tocqueville, in his great work on "Democracy in America" that if "a legislative power "could be so constituted as to represent the majority "without necessarily being the slave of its passions ; an "executive, so as to retain a certain degree of uncon- trolled authority; and a judiciary, so as to remain "independent of the two other powers; a government "would be formed which would still be democratic, "without incurring any risk of tyrannical abuse." In a general way, this language represents what we should strive to reach in our proposed constitution ; but if all the officers of the three great departments of the gov- ernment are selected in the same way, by popular elec- tion, it is almost certain that we will fall far short of approaching our ideal. Let us then dispassionately consider whether the idea of submitting everything to the popular will, which has always been advocated by 28 UNIVERSITY OF NEW MEXICO doctrinaires of the democratic school of thought, has not degenerated into something akin to unreasoning fetich worship, which tends to weaken and disintegrate government and to diminish its efficiency. At the present time, practically all political parties unite in their respect and regard for the federal consti- tution. Notwithstanding the fact that from time to time evils and abuses have crept into the practical ad- ministration of national affairs, yet on the whole we all look back with pride over our national history and agree that our national government has been strong and well- administered ; and yet the constitution confided to the direct vote of the people nothing more than the selec- tion of members of the lower house of Congress. In the course of time, it is true that, practically, the elec- tion of the president has come to be by the vote of the people, (voting by states, however, so that a minority of all the votes may elect a president) although that was not the original intention of the constitutional provis- ions on that subject. The senators are assigned equally to each of the states without regard to population or wealth, thereby securing greater steadiness and equili- brium in matters of legislation, and a fair representa- tion of all sections of the country without regard to mere numbers. The members of the judiciary are se- lected by the president, acting in conjunction with the senate. The only national officers as to whose selection the people have any vote are the president and vice- president. The president, subject to a possible veto by the senate, selects his cabinet and the other principal executive officers, with the result, usually, of having harmonious and concerted action in the transaction of public business. In most of our states there has been a departure from these sane and healthful methods as to executive and THE) MAKING OF A CONSTITUTION 29 judicial officers, and they are selected by popular vote. It has thus not infrequently happened that the chief executive of a state, who is held by popular opinion responsible for the state administration, has found him- self hampered and embarrassed by the simultaneous election with himself of other executive officers, nom- inally subordinate to him, but of different views, pur- poses, and ideas, over whom he practically exercise? but little control, so that the conduct of public business is interrupted by unseemly disputes between the gov- ernor and such officers, and even among themselves. It would be a most healthful and beneficial step in the right direction if New Mexico would provide, like the national constitution, for the election of the chief execu- tive officers, such as the governor and lieutenant-gov- ernor, and leave to the governor, in conjunction with the state senate, the selection of other necessary state officials. This would greatly diminish the cloud of candidates who seek the suffrages of the people at each election, and would thus increase the probability of an intelligent choice, while the concentration of responsi- bility would bring about a more careful and conscien- tious attention to duty than is evoked by the methods prevailing in the majority of our state. As to the selection of judicial officers, too much can- not be said against their being dependent upon the pop- ular vote. The election of judges by the people is cer- tainly original in this country and there is but little to be said in its favor. It is entirely incompatible with a proper sense of independence on the part of our judges, who ought, as far as practicable, to be removed from all temptation to court popular favor. In the history of our country it appears to be the fact that no serious judicial scandal has ever arisen in any state except in some of those where the judges are elected. In at 30 UNIVERSITY OP NEW MEXICO least one of those states it is currently reported, and generally believed, that judicial nominations are sold to aspirants to the bench at sums fixed by political bosses, and that the ordinary price is not less than one year's salary. I have been told that in that state a very young man, whose father is a person of great prominence and wealth, was by this system recently selected as a justice of the supreme court, although, as my informant said, "he is as deaf as a board." In an- other state, one of the greatest jurists of our country, who had served for years as a member of the highest court of the state, falling under the disapproval of poli- tical leaders on account of his judicial decisions, failed of renomination upon the expiration of his term, and was forced to leave the court, the high standing of which he had done much to create and maintain. In still another state, a member of its supreme court, in the discharge of his duty, wrote an opinion offensive to a large number of people, and being by them marked for vengeance, failed of re-election, not because of any legal defect or weakness in the decision of the court, which correctly declared the law, but because of popu- lar displeasure. In still another state, some years ago, a man was elected to a judgeship, a man who had never spent a day in his life in the study of law and after his election and before his term of office began, he felt compelled to resort to a law school and in a rapid and hurried maner attempt to gain some little knowledge of how to discharge his duties. There is no doubt that these illustrations might be multiplied if one had the time and patience to go into a careful collation of such occurrences. It is the fact that the lawyers best fitted for judicial positions are frequently not the best vote-getters. It is difficult to imagine anything that can be put THE MAKING OF A CONSTITUTION 31 into our constitution which would be more convincing of the sane and conservative character of our people than the adoption of a provision for the appointment by the governor, in connection with the state senate, of all judges of courts of record, with adequate salaries, to hold office during good behavior. This is the only practical way by which anything approaching inde- pendence on the part of the judiciary can be had, and its desirability will be more readily seen when we con- sider the record of the federal judiciary created in this manner. The supreme court of the United States has repeatedly shown its absolute and entire independence of the executive and legislative branches of the govern- ment, making decisions in some of the most important cases adverse to the will of congress, to the wishes of presidents, and against popular clamor. Time will not permit the enumeration of particular instances, but they are familiar to every student of the history of our country and to practically all members of the bar. An adaptation of the national method of apportion- ing senators might be worthy of consideration in form- ing a state constitution. The usual practice has been to apportion members of the upper house of the legislature among the people of the state, in proportion to num- bers. Something approaching the federal system might be had by giving one senator to each county of the state, without regard to population, and \ve might thus have some of the benefits which have been attributed to the assignment of two senators to each state without regard to population or wealth. Experience has shown that one of the most import- ant subjects to be expressed in a state constitution is as to the limitations upon legislative power. Special and local legislation should be prohibited in all cases where a general law can be made applicable, and the decision. 32 UNIVERSITY Off NJiW MEXICO as to whether or not a general law can be applicable, should be made a judicial question, to be decided by the courts, and not left to the legislative will ; and the courts should also be given power to review legislation and declare it void when, although general in form, yet in design and effect it is special. Limitations upon state and municipal indebtedness and upon the rate of taxation, as well as the restric- tions upon purely legislative power, are important as guarding "against the sudden impulses of mere ma- jorities," in the language of Chief Justice Fuller. Constitutions ought to contain some provision by which the legislature must provide a method of as- sessment of property for purposes of taxation which will be fair and just, by which no class of men or prop- erty can escape bearing its proper share of the burden of public expense, and which shall be divorced from influences arising from popular elections and local politics. Much has of late been said in favor of a clause in the constitution providing for direct primary elections at which the various political parties must select their candidates for office to be voted for by the people. This, if desirable at all, which is as yet debatable, should be regarded as a mere matter of legislation and not proper to be put in the constitution. It is clearly within the scope of general legislative power. As to the merits of such elections, much, which I have not time to say, might be said on both sides. The object sought to be attained is a worthy one. Our present system of nominations for office by conven- tions of delegates, the foundation for whose selection is found in ward, town, or precinct primaries, is more in harmony with our general system of delegated, rep- THE MAKING OF A CONSTITUTION 33 resentative government; but, practically, packed, dis- orderly and dishonest primaries, unregulated by law, in which unscrupulous men of all parties are allowed to participate with impunity, under the corrupting in- fluence of political bosses, distort or stifle the real sentiments of the party, and repel the attendance of the better class of citizens. This condition should be rem- edied, but it is, to say the least, doubtful whether the proposed direct primaries will afford an adequate remedy. There appear to be two principal objections to the direct primaries. One is, that the members of one political party may participate in the primary election of the candidates of another party, just as heretofore has been done in the unregulated primaries for the election of delegates to conventions. There seems to be no practical way of avoiding this, and it miiit be the case that where there is serious division in one party as to who the candidate shall be, and little or no division in the other, the members of that other party could vote in the primary elections of their adversaries so as to obtain some undue advantage. It is asserted in the public press that just this thing happened in the recent primary elections in the state of Wisconsin. The other objection is, that a candidate for office is com- pelled to make two expensive campaigns, one to obtain the nomination, and the other to secure his election. Putting aside the question of improper expenses of such campaigns, there still remains a large burden of per- fectly proper and legitimate expenditures, for distribu- tion of printed matter, the holding of meetings, the services of speakers, and other like matters. Tt is not long since a United States senator from a state where such elections are held for the nomination of senators. 84 UNIVERSITY OF NEW MEXICO declined to be a candidate for re-election upon the ground that he could not afford the expense of many thousands of dollars to maintain a state-wide organiza- tion to secure the nomination, and still less could he afford to have other people bear that expense, as those other people would, in case of his election, think that they had a claim upon him in his official capacity which it would be difficult, at least, to refuse to recognize, and which might be asserted for improper purposes. Moreover, to become a candidate at the primary elec- tion, necessarily requires a considerable amount of self- serving exertions on the part of would-be candidates, and those men who are the most eager for office are frequently the least desirable, while, by the convention method of making nominations, if properly conducted, it might be the case that men would be nominated who have never put themselves forward or sought the nom- ination in any way. A more effective remedy might perhaps be found in legislative regulation of primary elections of delegates to conventions. It would be practicable to require such primary elections of all political parties to be held under official supervision, at the same time and place in each precinct in the state, with judges and clerks of election appointed as in the case of general elections. A ballot box for each political party could be provided and no man allowed to deposit a vote in more than one ballot box, and a record should be kept of every voter, a sepa- rate poll book being provided for each political party. A registration might be required for such elections, which could serve also as the registration for the gen- eral election thereafter to be held. If honestly admin- istered, this system would seem to provide a substantial THE MAKING OF A CONSTITUTION 35 and practical remedy for the present evils, of which so much complaint is properly made. There are numerous other details of what ought or ought not to go into our constitution which fall natur- ally within the scope of the subject assigned to me, but the narrow limit of time makes it impossible for me to present them. I believe I have, however, touched upon, although briefly, those matters which are of the great- est importance. I compliment you upon your patience and powers of endurance, and thank vou for your attention. JK UC SOUTHERN REGIONAL LIBRARY FACILITY A 001 308948 7 THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. Series 9482