The Populist Quarterly

by Matthew Moseley

A libertarian perspective on Initiative and Referendum (I&R)

We all know that the Constitution was created to define what the Federal government could do and the Bill of Rights defined what they could not. I believe by and large that the Founding Fathers (at least the Anti-Federalists) believed that it would be enough to define THE ONLY THINGS that they could do. But it didn’t last long. Starting with the Second Continental Congress, cases like Marbury vs Madison, right up to today’s Supreme Court defining the “Spirit” of the Constitution, the Republic has been beat down and turned into the whipping boy of a tyrannical oligarchy. But were we really surprised? When asked “What hath ye wrought?” Ben Franklin stated: “A Republic, if you can keep it!”

We didn’t keep it. We assumed it would keep itself. Few realize it now, but the days of the Republic have long-since come and gone. If more realized it, we’d be in the middle of another Revolution. This time the Revolution would not be “Between the States,” but between the people and the government.

However, there is hope. Ol’ Ben was right. We can keep it. If we start now.

It is unrealistic and impossible to expect a government to abide by the strict letter of the Constitution. Doing so is choosing to be condemned to the very history our founding fathers fought to change. I guess they just hoped for the best. Had they known that the true nature of government is power, they might have thought differently, or fought harder to limit that power.

Some libertarians want to eliminate that power. But anarchy just creates more problems and more oppression. Even more libertarians fear I&R because it resembles democracy, i.e. “Mob Rule.” Under a pure democracy, as much as 49.9% of the people can still be oppressed. So, let’s lay out a plan for I&R in terms that will protect individual rights, limit the power a government can abuse, and allow for the means to preserve liberty, justice, and freedom.

First, the creation of legislation.
1) Single issue legislation - all legislation must be submitted without earmarks.
2) No vested interest - Makes sure that no government officials voting on the legislation has anything personal to gain (money, power, etc) by it. This includes their family members.
3) Accountability - require mandatory public record of the votes cast for the passage of a bill.

Second, judicial review.
1) Constitution standard - require all legislation to go through judicial review under the qualification that it does not violate a strict interpretation of the Constitution. Any violation must be returned to the legislature or scrapped.
2) Vested interest - Since it is the purpose of the judicial branch to protect our rights from the abuses of the other two branches, make the Judges criminally liable for not thoroughly reviewing all legislation.

Third, public review.
1) Individual investment - require all legislation to go through public review before it is passed into law. This will makes sure we know exactly what is about to impact us, and allow us to stop it before it happens.
2) Higher standards - consider a requirement of a supermajority to allow for passage of a bill. The fewer people opposed to it, the less likely it will infringe on freedoms. Chances are, if I bill gets this far and the people take the time to care about their rights, bills will most likely pass unanimously or die the same.

Finally, executive signing.
1) Sunset clause - all laws must have an expiration period. Many laws are passed that have a relevance to a specific period of time. Once that time passes, the law should become null and void.
2) Executive orders - eliminate them. The Consitution defines the Legislature as the branch for making laws and declaring war. The President should be stripped of the right to do this.

Once everyone else has done the job they are hired to do, and we’ve approved their work, then it can become law. This might sound defeatist, but it ensures that our rights are not violated, that a proper structure of government remains in place, and that the government works for the people. True, fewer pieces of legislation might be turned into law, but don’t we have too many already. It’s better to pass no laws than to pass even one that violates the constitution.

After all of this is in place, then I&R can serve in the role of making sure we keep the Republic in check. If a law that cut the mustard to get passed turns sour, we can eliminate it. If the legislature refuses to move on an issue, we can supercede them. However, I would add that any initiative put to a public vote must pass judicial review as well. We don’t want the government having the right to take our freedoms, why would we want a group of other citizens to have that right either?

This plan allows for The Republic and Democracy to work together. Are you ready to keep it?

Matthew Moseley [send him email] was the chair of the Dallas County Libertarian Party until 2005, and the 2006 Libertarian Candidate for Texas state representative of District 112. He is an ardent student of the Declaration of Independence, the Constitution and the Bill of Rights, and openly welcomes your feedback.