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
 
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