Arizona republican. [volume] (Phoenix, Ariz.) 1890-1930, 1911-03-30
Justice Lurton on Direct Legislation

Justice Lurton on Direct Legislation.
Until the supreme court of the
United States has rendered its de-
cision on the question of the consti-
nationality of the initiative and ref
erendum as presented by the pending
ease from Oregon. there will, of
course. be some speculation as to
what the decision viii be. Lawyers
quite generally are of the opinion
that the court viii decide that the
Oregon plan" of legislation-such as
is proposed in the Arizona constitu
tion-is in conflict with the constitu
ton of the United States.
Ii seems clear from the article by
Mr. Justice Lurton i'm a late number
of the North American Review on A
Government of Law or of Men, that
at least one member Of the supreme
bench is convinced Of the unconstitu
tionality of direct legislation. Re-
ferring to the ideas which prevailed
when the republic was formed, the
eminent justice from Tennessee says:
In passing, it may be observed
that the idea of an absolute democ-
racy found no favor whatever.
However valuable or desirable di
rect popular legislation may be in a
small community of intelligent and
conservative citizens, the notion was
universally regarded as absolutely un-
workable upon any large scale
Hence the model upon which the
state and federal governments We're
constituted was that of a representa-
tive constitutional democracy. and the
guarantee to each state of a repub
lican form of government found in
the federal constitution refers obvi-
ously to the character of republican
governments which then existed,
form inconsistent with pure or alb
solute democracy"
This is precisely the ground taken
by Judge Kibbey and Judge Doe in
the campaign for the Arizona con-
stitutional convention. and by Judge
Kingan and Judge Doe in the con-
stitutional convention.
These sound lawyers argued that it
was altogether probable that the su
preme court Of the United States
would. in passing upon the oregon
case, declare that direct popular leg
islation is i'm conflict with the consti-
tuition of the United States; that the
constitution guarantees to the people
of each state republican form Of
government" and they declared it as
their opinion. as a justice Of the
United States now declares il as his
opinion. that the republican form Of
government" meant by the federal
constitution is "the character of re-
publican government which then eX-
isted"-in other words. these eminent
lawyers of Arizona stated ii as their
opinion that when the supreme court
the words republican form of gov
eminent it would be guided by the
meaning those words had at the time
the constitution was framed They
therefore predicted that legislation by
the people at the polls would become
obsolete--shortly. even if adopted by
Arizona. For this reason they urged
that it was the height of folly to
throw statehood away by insisting
upon something which probably could
not be obtained in any event.
1t is evident. also, that Mr.. Justice
Lurton is not inclined to accept the
view expressed by Colonel Roosevelt
at Phoenix, which was TO the effect
that Switzerland has the initiative
and referendum and Switzerland is a
republic, therefore it cannot be doubt
ed that direct legislation is in har-
mony with the republican form OF
government.
The fact is, of course, that while
Switzerland is nominally republic"
il is in fact more of a pure demOc-
racy Its government is far more like
the democracies of ancient Greece
than the republic of the United
States
Switzerland is, to use the words of
Mr.. Justice Lurton. "a small COM
munitv of intelligent and conserva-
tive citizens" 1t is also a community
which practically has no diverse in
terests 1t is country Of small
farms. vineyards. dairies. and keepers
of tourist hotels. 1t is wholly unlike |
Arizona. for example, where one can
find in a given section a population
which insists that il has nothing in
common with the population of a
section in some other part of the ter
ritory.