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(What questions may be submitted to a popular vote.) labored; that in tracing these evils to their origin, every man found it in the turbulence and follies of democracy; that some check, therefore, was to be sought for, against this tendency of our governments; and that a good senate seemed most likely to answer the purpose."
In the debates on the federal constitution in the Virginia convention, Mr. Madison, always the advocate of popular rights, subject to the wholesome restraints of law, remarked, "that turbulence, violence and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions; and that these, in republics, more frequently than any other cause, have produced despotism." "If," he observes, "we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes; if we consider the peculiar situation of the United States, and go to the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear that the same causes may terminate here in the same fatal effects which they produced in those republics.' To guard against these dangers, and the evil tendencies of a democracy, our republican government was instituted, by the consent of the people. The characteristic which distinguishes it from the miscalled republics of ancient and modern times, is, that none of the powers of sovereignty are exercised by the people; but all of them, by separate, co-ordinate branches of government, in whom these powers are vested by the constitution. These co-ordinate branches are intended to operate as balances, checks and restraints, not only upon each other, but upon the people themselves; to guard them against their own rashness, precipitancy and misguided zeal; and to protect the minority against the injustice of the majority.
The constitution of the state of Delaware begins by asserting the great principles on which it is founded; and the aim and object of establishing our form of government. The first article contains a declaration of those inherent
(What questions may be submitted to a popular vote.)
rights which belong to every individual in society; of certain restrictions imposed on the legislative, executive and judicial power; and of the right of the citizens to meet together in an orderly manner, and to apply to persons entrusted with the powers of government, for redress of grievances, or other proper purposes, by petition, remonstrance and address. Most of the matters mentioned in the first article, are merely declaratory of the doctrines of the common law on the same subjects, formerly affirmed by Magna Charta in the year 1215, and afterwards asserted by the Bill of Rights in 1688, as the undoubted rights and liberties of the people of that country whence we have derived our language and literature, the Christian religion, and the common law. The same article of our constitution concludes with a declaration, in the name of the people, that everything contained in that article is reserved by them out of the general powers of government thereinafter granted. All powers, therefore, not reserved, are surrendered by the people to those entrusted with the powers of government, to be exercised only in accordance with the principles and design of the constitution, and the genius of our republican system.
The legislative, executive and judicial powers compose the sovereign power of a state. The people of the state of Delaware have vested the legislative power in a general assembly, consisting of a senate and house of representatives; the supreme executive power of the state, in a governor; and the judicial power, in the several courts mentioned in the sixth article. The sovereign power, therefore, of this state resides with the legislative, executive and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it; to do so, would be an infraction of the constitution, and a dissolution of the government; nor can they interfere with the exercise of any part of the sovereign power, except by petition, remonstrance or address. They have the power to change or alter the constitution;
(What questions may be submitted to a popular vote.) but this can be done only in the mode prescribed by the instrument itself; the attempt to do so, in any other mode, is revolutionary. And although the people have the power, in conformity with its provisions, to alter the constitution, under no circumstances can they, so long as the constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government.
It is equally clear, that neither the legislative, executive nor judicial departments, separately, nor all combined, can devolve on the people, the exercise of any part of the sovereign power with which each is invested. The assumption of a power to do so, would be usurpation; the department arrogating it, would elevate itself above the constitution; overturn the foundation on which its own authority rests; demolish the whole frame and texture of our republican form of government, and prostrate everything to the worst species of tyranny and despotism, the ever-varying will of an irresponsible multitude. The powers of government are trusts of the highest importance; on the faithful and proper exercise of which, depend the welfare and happiness of society. These trusts must be exercised in strict conformity with the spirit and intention of the constitution, by those with whom they are deposited; and in no case whatever, can they be transferred or delegated to any other body or persons; not even to the whole people of the state, and still less, to the people of a county.
It is a plain proposition of law, that a power or authority vested in one or more persons to act for others, involving, in its exercise, judgment and discretion, is a trust and confidence reposed in the party, which cannot be transferred or delegated. The making of laws is the highest act of sovereignty that can be performed in a free nation; and therefore, the legislative power may be truly said to be the supreme power of a state. Its exercise requires superior intellectual faculties, improved by study and
(What questions may be submitted to a popular vote.) experience; although it seems to be a common notion with many pretended advocates of popular rights, at the present day, that every man is instinctively fitted to be a member of the legislature. If the legislative functions can be transferred or delegated to the people, so can the executive or judicial power. The absurd spectacle of a governor referring it to a popular vote, whether a criminal, convicted of a capital offence, should be pardoned or executed, would be the subject of universal ridicule; and were a court of justice, instead of deciding a case themselves, to direct the prothonotary to enter judgment for the plaintiff or defendant, according to the popular vote of a county, the community would be disgusted with the folly, injustice and iniquity of the proceeding.
All will admit that, in such cases, the people are totally incompetent to decide correctly. Equally incompetent are they to exercise, with discernment and discretion, collectively, or by means of the ballot-box, the power of legislation; because, under such circumstances, passion and prejudice incapacitate them for deliberation; and the tricks of demagogues, excited feelings, party animosities and the corrupting influences always brought to bear upon popular elections, would banish reason, reflection and judgment. If the delegation of the legislative power of a state to the people of a county, to make laws through the medium of a ballot-box, involving in it an abandonment by the legislature of the trust reposed in them, which they have sworn to execute with fidelity, does not seem to many persons to be destructive of the constitution, and to lead to all the dangers of a democracy, it can be only because it is presented under the specious appearance of a profound deference and devotion to the popular will, and because its destructive tendencies are clouded and obscured by the incense of adulation offered to the majesty of the people. The question then arises, whether the act of the 19th of February last, transfers or delegates legislative power. If it does, it is unconstitutional.
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The legislature, at their late session, were urged by numerous petitions, signed by a large number of very respectable citizens, to refer it to the people to decide, whether the laws licensing the sale of intoxicating liquors should be repealed. If the members of the legislature, by the convictions of their own judgment, were assured that the sad evils of intemperance flowed from the existence of these laws, it was their duty to repeal them; or to introduce such modifications as might destroy their baneful influence; this course was required of them, although the will of the constituents of many of the members might have been opposed to it. The doctrine of the common law is, that a member of a legislative body, although elected by a particular county or district, is bound, in the performance of his functions, to act, not merely for the benefit of his own constituents, but for the whole state. The opinions and will of his constituents ought always to command the most respectful attention; but if clearly opposed to his deliberate judgment, to the principles of the constitution, to the dictates of sound morality, or to the public welfare, as an honest and upright man, he ought not to obey them. "The representative," says Mr. Burke, "owes to his constituents, not only his industry, but his judgment; and he betrays, instead of serving them, if he sacrifices it to their opinion." Our legislature, acting with the best intentions, and following the precedents set by the legislatures of other states, the constitutionality of which had never been brought to the test of a legal decision, declined the responsibility which it was their duty to assume; and thus devolved the performance of their trust on the people of each county; in order that a majority, on whom no responsibility rested, might decide a question which none had the authority to decide, but the legislature.
The laws licensing the sale of spirituous and vinous liquors are valid laws; and they must remain in force, until repealed or modified by the regular and constitu