Definite proposals are now being made to furnish legislatures with expert drafting assistance. Several states, notably Wisconsin and Pennsylvania, have drafting and legislative reference bureaus at the state capitol. At the last session Congress gave serious attention to a bill creating a similar agency at Washington. The American Bar Association has just created a special committee on the drafting of legislation to study existing agencies for the rendering of technical assistance to legislators in the preparation of their laws, and to report its recommendations to the annual meeting in 1913.2

Legislative reference libraries are doing excellent work so far as they go, but the drafting end of their work has not been so well developed as the collection and indexing of printed materials. This may be due to the fact that the lawyers are slower than the political scientists in catching up with modern tendencies.

Another device of which frequent use is now being made is to take the preparation of important legislation out of the hands of the regular legislator and entrust it to a legislative commission. This plan may or may not be effective for good. The commission, like many other governmental agencies, depends for its usefulness on the men who constitute it, the time they devote to their work and the men to whom they entrust the actual preparation of their bills. If a skilled workman were to do his work as carelessly and with as many blotches appearing over the whole face of it as appear in some of the compensation acts drafted by commissions, his employer would not hesitate to discharge him without pay or send him back to do his job over again.

The wise solution of this problem of drafting American statutes will do much to relieve administrative officers and courts of

1 Congressional Reference Bureau: Hearings before the Committee on the Library, House of Representatives, Feb. 26th and 27th, 1912. (Published in pamphlet form by Government Printing Office.)

'The members of this committee are: William Draper Lewis, Philadelphia, Pa., Chairman; Samuel Untermyer, New York, N. Y.; Louis D. Brandeis, Boston, Mass.; Frederick W. Lehmann, St. Louis, Mo.; Henry C. Hall, Colorado Springs, Colo.; Thomas I. Parkinson, New York, N. Y.; Ernst Freund, Chicago, Ill.

vain efforts to discover legislative intent where there is none, or where it is confused in a mass of ill-chosen words, and will remove one important cause of the discontent which has been made the basis for the proposal of popular recall of judicial decisions affecting the constitutionality of state legislation or the recall of judges rendering such decisions.

I have no panacea for the ills of legislation. I have no scheme to suggest for the production of well-drafted statutes. I know of no device or organization which can be depended upon to provide us with good drafting. Official drafting and legislative reference bureaus are not of themselves sufficient; machinery will not run without power. In the last analysis the problem is to secure men of training and experience who will devote their professional careers to the scientific formulation and development of our written laws. In the words of E. W. Smith, Esq., president of the Pennsylvania Bar Association, the drafting of a statute is not a "pastime for a summer afternoon." In many ways preparation of statutes, because of the increasing quantity and broad effect of our statute law, is even more important than the judicial function which operates only on controversies as they arise between man and man. Again, Mr. Smith says: "Legislation is necessarily fragmentary, unless it is prepared by skilful lawyers, familiar with the subject, who are ready to devote much time and thought to its preparation. But it is foolish to assume that all lawyers can draft statutes. Such work requires a concentration of mind and of expression that few men have." Until we are impressed with the necessity of having our statute law drafted by such men, and until we find the men, we shall continue to find in our session laws numerous examples of legislative blunders, some of them amusing, some pathetic, and unfortunately many of them serious.

IT

THE INITIATIVE AND REFERENDUM.

PAUL S. REINSCH

Professor of Political Science, University of Wisconsin

T is very fashionable on the part of those who consider themselves conservative and given to test the safeness of things, to look upon the initiative and referendum in this country as a political fad, a part of a political disease of our people. They think this a phase we shall have passed through in a comparatively short time to return to saner methods. Yet it seems to me that those who console themselves about the progress of this institution in such a manner are taking a most superficial view. If I read our present situation as a nation aright, I believe we must see in it the awakening of a much deeper political consciousness than we have hitherto had. Heretofore our life has been occupied with economic interests, and the political factor, strident as it was at times, was nevertheless superficial-the old marching campaign was its emblem. We did have times of important political action, but in general we were more concerned with economic life. I consider the inovement for the initiative and referendum as a part of that great political awakening which the nation is now experiencing and which will bring about a permanent change in our political methods.

The old party caucus with all its trickery and all its sham has been so utterly discredited that we shall never be able to go back to it. We have seen with new eyes the old-time platforms, and they will no longer satisfy us. The cry of democracy is "More democracy." It holds that as the constitutions of the past have not worked well we must have them more democratic. We are outdoing Rousseau. He pronounced for democratic action even in a large state, but could not work out the

Read at the meeting of the Academy of Political Science, October 26, 1912.

necessary mechanism, and therefore stopped short of national democracy; he never got beyond federalism in his constructive ideas. Accordingly the modern initiative and referendum completes the Rousseauic theory, in that it considers the nation a unit, makes use of the modern advances in communication and views the electorate as one body capable of acting together.

We shall have to go through this second phase of Rousseauism. The convention phase was put to the proof during the French revolution when the older Rousseauism was thoroughly tested. Now it will be tested in all its completeness by making the people the primary factor in political action. This brings up the question of certain elements of human nature, according to which political institutions are viewed not as instruments, not as elaborating energy that already exists, but as virtually creating new energy, as if new virtues could manifest themselves through them. That is expecting too much of any institution. There exists in a people the political energy, virtue, consciousness, which seeks for a vent, which wants to manifest itself in action; and if there are impediments, institutions that dam up such energies, there will be an outbreak of some kind.

To a certain extent the energy of public opinion was hampered by our institutions of the past, and yet it would be too much to say that by creating new institutions we shall give to the body politic a different energy. There lies the chief argument against the initiative and referendum. It seems to demand too much, to consider the people as a body able to initiate, having the constant energy to watch the affairs of the state and judge their details, as well as to make themselves masters of the legislative situation. That is where the fault lies in my opinion-in the extreme, the radical policy of the initiative and referendum. There are many functions in the state. There is the function of deliberation, of judging, of taking administrative action, and to think that the function of voting in itself can take the place of any or all of these others and make them unnecessary, is expecting too much. Voting has often been used for the purpose of assisting legislation; it was used even in the Romans' day, but then there was always a clear alternative, yes or no—

157 a point that ought to be worked out and thoroughly. But we desire to go beyond that; we desire to have the consciousness of the people enter more intimately into the work of legislation, and yet we are expecting too much of this reform when on the one hand we believe that a popular vote can take legislative action in its fullness and completeness and thus virtually supersede the legislature, and on the other hand expect from it the political regeneration, the creation of new political forces, energies and virtues.

With these reservations, however, I consider the initiative and referendum as an institution that carries within it a great promise for our commonwealths, one that ought to be utilized and taken advantage of, and that cannot be brushed aside.

Throughout the world parliamentary bodies, have been a disappointment in not coming up to the ideal of liberalism, in not being the "councils of the wise," in which after due deliberation the best interests of the body politic are expressed in the form of law. That is not the nature of any legislative body, not even of that most excellent one, the British Parliament. Too much was expected of this institution, as of every institution when first introduced to the world. Now the tendency is in the opposite direction. In England even it is the elector that has direct relation with the controlling interest, and Parliament seems hardly more than a registering agency to record the will of the electorate and keep the ministry in power. The old dramatic struggle for influence in the House of Commons that lent life and interest to the political action of England during the greater part of the nineteenth century has almost passed away and it is now carried on before the electorate. But Parliament has not lost its importance, because it is the place where energies converge, where opinions are formed, the place for the promoting of policies, and it remains by far the most powerful and interesting body of legislation in the world. How different with our state legislatures! They have become so discredited that they offer no field for political action of a high type, and so they naturally became the instruments of the "great interests" whose leaders alone have been far-sighted enough to see how important the political power therein con