The People’s Law: William Jennings Bryan’s speech to the 1912 Ohio Constitutional Convention

Editor’s Note: We’ve talked about how Republican President Teddy Roosevelt spoke to the Ohio Constitutional Convention of 1912, and we’ve republished his comments in full. Early 20th Century perennial Democratic presidential candidate William Jennings Bryan also spoke to the convention about how crucial citizen power through initiative is.

I’ve highlighted particularly pertinent sections in bold and added some notes to clarify what Bryan is speaking about in different sections, the powers Ohio voters approved in 1912 that still stand today, and how Issue 1 on August 8 would roll back those powers and erect barriers.

Issue 1 asks voters to raise the threshold for passing amendments to the Ohio Constitution from 50% to 60%, increases the number of counties needed for signature-gathering from 44 to all 88 counties, and eliminates a grace period where signature-gatherers can amend their petitions to correct things such as incorrect addresses listed.

Let’s now take a look at Bryan’s remarks dealing with majority/minority rule and the citizen ballot initiative:

Mr. President and gentlemen of the constitutional convention: I am sensible of the great honor you do me in inviting me to address you. You are entrusted with a work of great importance, the preparation of a constitution which may without impropriety be termed “The People’s Law.” 

Other matters they give into the hands of representatives chosen to legislate on general subjects and they permit the representatives to act according to their judgment, but in the case of a constitution they select agents for a particular purpose, agents chosen with more than usual care — agents in whom they repose the highest confidence — and then, so delicate is the task and so binding is the instrument prepared, that they insist upon its submission to the sovereign voters for ratification before it is invested with the sanctity of the law.

(In the preceding sentences, Bryan is referring to the calling of a constitutional convention such as Ohio did in 1912, and then the convention bringing proposed amendments to the voters. The 1912 convention brought 42 amendments to Ohio voters. On Sept. 3, 1912, voters adopted 34 of them. Of those, 19 did not achieve 60% of the vote. The adoption of the initiative and referendum received 57.5% of the vote.)

I know not how to manifest my appreciation of the privilege that you extend to me of advising in this capacity, except to submit for your consideration some suggestions which may be helpful to you in the discharge of the solemn duty imposed upon you by the people of the State of Ohio.

The preparation of the constitution of a great State is a serious undertaking and those who are engaged in it bear a grave responsibility. The burden has been lightened as, with the advance of years, it has been made easier to amend constitutions. 

The written constitution has become an American institution, and its hold upon the people is not likely to be shaken; its claim to confidence is jeopardized, however, when one generation attempts to fetter the freedom of succeeding generations by provisions that prevent a majority from amending their constitution.

Our Federal Constitution illustrates the limit to which a constitution may go in restraining the public will and in compelling a majority to submit to the rule of the minority. To amend the Federal Constitution a resolution must pass both Houses of Congress by a two-thirds vote, and the amendment submitted must then be ratified by three-fourths of the States.

A minority can thus prevent a change until the majority becomes so large as to give those desiring a change a two-thirds vote in the Senate and House, and then it can permanently obstruct the carrying out of the popular will on a constitutional question if it can control 13 States out of 48. 

We need, and I doubt not shall some day secure, an amendment to the Federal Constitution making it easier for a majority to change the Constitution, either by striking out that which has become objectionable or by adding that which has become desirable.

The State constitutions bear witness to a growing confidence in the people; they are much more easily amended, as a rule, than the Federal Constitution, and the later State constitutions are more easily amended than the earlier ones.

When New Mexico’s constitutional convention recently attempted to unduly restrict the power of amendment, Congress compelled a separate vote on this specific provision and the electors promptly modernized the method of amendment.

The latest step in advance is embodied in what is known as the initiative. For some years past the initiative and referendum — they are usually linked together but are not dependent upon each other — have found increasing favor among those who are seeking to make the Government responsive to the people’s will. Of the two, the initiative is by far the more important. 

While the referendum enables the people to veto a public measure before it becomes a law, the initiative not only enables the people to repeal any law which is objectionable to them, but, what is more vital to their welfare, permits them to enact directly any law which they desire, without recourse to the legislature. Through the initiative they can also submit an amendment to the constitution and secure a vote of the people upon it .

The initiative is, therefore, the most useful governmental invention which the people of the various States have had under consideration in recent years. It is the most effective means yet proposed for giving the people absolute control over their Government. With the initiative in a constitution, a constitution’s defects, either of omission or commission, become comparatively harmless, for the people are in a position to add any provision which they deem necessary and to strike out any part of the constitution which they dislike.

The initiative and referendum do not overthrow representative government — they have not come to destroy but to fulfill. The purpose of representative government is to represent, and that purpose fails when representatives misrepresent their constituents. 

Experience has shown that the defects of our Government are not in the people themselves, but in those who, acting as representatives of the people, embezzle power and turn to their own advantage the authority given them for the advancement of the public welfare. 

It has cost centuries to secure popular government — the blood of millions of the best and the bravest has been poured out to establish the doctrine that governments derive their just powers from the consent of the governed.

All this struggle, all this sacrifice, has been in vain if, when we secure a representative government, the people’s representatives can betray them with impunity and mock their constituents while they draw salaries from the public treasury.

The initiative and referendum do not decrease the importance of legislative bodies nor do they withdraw authority from those who are elected to represent the people. On the contrary, when the people have the initiative and the referendum with which to protect themselves, they can safely confer a larger authority upon their representatives. 

When the constitution embodies the initiative and referendum the representative is not compelled to vote for any measure which his conscience forbids him to support, but he is coerced into a serious consideration of the merits of the measure by the fact that the people, through the referendum, may veto the measure if they do not like it.

When the constitution provides for the initiative and the referendum the people simply say to their representatives, “Do your duty, follow your judgment and your conscience, and the more accurately you interpret our wishes the less we shall have to do.” 

The fact that the people can act through the initiative and referendum makes it less likely that they will need to employ the remedy — there will not be so many bad laws to complain of when the people reserve the right to veto, and it will be easier to secure the enactment of good laws when the people are not absolutely dependent upon legislators for the enactment of such measures as they may desire. 

Direct legislation exerts an indirect, as well as direct, influence, and when the system is fully established, and the people thoroughly understand it, it is not likely to be employed often, because those elected to represent the people will be more in sympathy with their constituents.

Some difference of opinion exists among the friends of the initiative and referendum as to the percentage that ought to be required for the petitions which start the machinery through which the people act. 

(In this section, Bryan is addressing the requirements needed to bring a proposed amendment to the ballot. Currently in Ohio, signature-gatherers must collect signatures from a number of voters equal to 5% of those who voted in the previous election for governor, from 44 counties. Issue 1 would make that all 88 counties instead.)

It will be observed, however, that the difference of opinion on this subject reflects to some extent the degree of confidence which people have in the reform. 

In proportion as a person distrusts the intelligence and patriotism of the masses he is apt to demand a high percentage, partly in the hope that a high percentage may discourage entirely a resort to this method of legislation and partly because he fears that it may be resorted to without sufficient reason. 

The Oregon law has usually been made the basis for the fight for these reforms in the various States and I am unqualifiedly in favor of a low percentage as against the high one. Eight percent for the initiative on ordinary measures and 12 percent on constitutional amendments is not unreasonably low. Neither is 5 percent too low for a referendum vote. (This 5% is what Ohio settled on in 1912).

I am sure that experience will show that these remedies will not be resorted to without real provocation, and there is no reason why those who are public spirited enough to assume the labor of bringing questions before the voters should be taxed with unnecessary labor. The larger the percentage required, the greater the burden thrown upon those who undertake to ascertain the popular will.

California has gone a step farther and reduced the percentage below the Oregon limit, where the legislature is first given an opportunity to act. This is a step in advance and I am pleased to learn that it commends itself to your judgment.

The fact that the initiative is merely the means of bringing the subject before the voters, and that a majority of those voting must speak affirmatively before the proposed measure can have any effect, is sufficient to prevent the submission of frivolous questions or of propositions which have not a substantial support. 

It is not only labor but labor accompanied by the penalties of defeat to submit an unpopular measure, and this will usually protect the public from any unnecessary use of the means provided by the initiative and referendum.

One point should be carefully guarded. The opponents of the initiative and referendum are usually insistent in their demand that a proposition submitted to the people must receive, not merely a majority of the votes cast on the proposition, but a majority of the votes cast at the election. This is an unreasonable requirement.

(Here Bryan is referring to a debate at the 1912 Convention where some advocated that a proposed amendment receive a majority out of the total number of ballots cast for every race, and not just on the initiative question itself. In the following paragraphs, Bryan explains why it should be a simple majority of those who voted on the initiative question itself that should be used to pass a proposal.)

Legislators are elected by a plurality vote, not by a majority, and there is no reason why more than a plurality should be required for the enactment of a law by a direct vote of the people or for the adoption of a constitutional amendment. 

The votes cast upon the proposition ought to be the test — to require a majority of all the votes cast at the election is to give the negative the benefit of those votes cast at the election but not cast either for or against the proposition. Why should those who propose a reform be subjected to this disadvantage? 

A reform that secures a majority of the votes cast on the subject certainly has the presumption of right upon its side. The most that can be said of those who do not vote is that they are indifferent, and, if so, they ought not to be counted either way. If they fail to vote because they are too ignorant to understand the subject there is less reason why their voice should be made effective in defeating a proposition which has secured the support of a majority of those who have studied the subject and expressed themselves upon it.