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Why Didn't Founding Fathers Write a National Referendum Clause into the Constitution?

My Esoteric is a bit of a polymath, with degrees in statistics, accounting, computer science, and operations research. He enjoys philosophy.

Democracy Scared Our Founding Fathers to Death

It was no secret that the idea of "democracy", at the time the Constitution was written was a "dirty word". Democracy for the masses was a sure path to destruction that those properly educated or had "skin in the game" through landholdings can make reasoned judgments. That they won't be swayed by the siren song of great orators who through just their words, verbal or in print, attempt to lead them down the primrose path to decisions that work against their self-interest.

Based on the history they read, mainly that dealing with ancient Greek and Roman society, the Constitution's creators knew that democracy essentially means mob rule. Yet, these men were liberals of the enlightenment. They believed the individual reigns supreme even though, ironically and hypocritically, they also felt, as conservatives do, aristocracy has the duty to think for those who are too easily swayed to make rational decisions, at least in the political arena. This is partly the reason why 1) there is an appointed Senate (until the 17th Amendment was passed because of the ubiquitous corruption behind their appointments) and 2) suffrage was limited to white, male landowners (with very few exceptions).

Even with that conservative bent, the founder's main concern was liberating individual Americans from the kind of government coercion experienced thus far by the conservative English Parliament. But it was their fear of total democracy that led them down the path of limited suffrage. And, without a doubt, popular referendums smacked of just that type of democracy. Do know, however, the subsequent use of the referendum process by various states have both proved their point as well as disproved it.

This is a Must Read for All High School Civics Classes

The EU Referendum - an example of how emotion can be self-destructive

The EU Referendum - an example of how emotion can be self-destructive


Referendums, in the states that allow them, generally supplant the authority of the elected legislature and executive function; they are subject only to judicial review; California is a good example. These types of referendums are the founders worst nightmare of democracy run-amok. A few states do allow their legislatures have a say in the final results.

As a rule, any person or group can submit a referendum if they meet the State's minimum support levels. This means the sponsors have to run around the state collecting valid signatures from registered voters to be submitted to the Secretary of State. If it passes muster, then it is included on the ballot of some future election. There is no similar vehicle at the federal level. The only equivalent are lobbyists (the People don't have the power to be successful) to ask Congress members to submit a bill that addresses their particular issue, as frequently happens.

My thought, along with many other people, is to have a vehicle for the People to get heard regarding things that are important to them. A National Referendum could be such a way.

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What Might a National Referendum Look Like

One Potential configuration might go like this. Congress would enact a law, subject to the President's veto that establishes the following for a national referendum.

  1. Allows persons or groups, barring lobbyist organizations since they already have a route, to apply to a designated office their desire to put an initiative on the next federal election ballot.
  2. Establish the office, Congressional or Executive, where such an application and final petition will be filed.
  3. Authorized that office to certify the petition as having met certain threshold criteria.
  4. Establish the threshold criteria as being a certain percentage of valid signatures from registered voters by state. And the total number of electoral votes in states where the particular threshold was met equal at least 270.
  5. Enact the laws necessary such that if any such initiative that wins the majority of votes nationally is deemed to have passed, but is subject to judicial review.
  6. Establish a legislative procedure for each house of Congress to have a Secret ballot style up or down vote, without debate, on the outcome. A simple majority of each house is needed for passage and is subject to a Presidential veto.
  7. Establish procedures, if such an initiative does pass Congress, implementing laws. Such laws must be enacted by the end of that Congresses term.
  8. Establish penalties, such as public notice, for any members who work to not enact such implementing laws.

Why Those Referendum Rules?

Because I think they pass constitutional muster and limits the ability of Partisan Politics to influence the outcome. The Constitution gives to Congress to make any laws. It also gives the President the ability to veto any law they feel is bad for America as a whole. That is why you cannot have a California or Florida-style referendum system as it supersedes the power of that State's Congress and Governor. What I propose does not at the federal level.

Included in the rules above is a provision that gives the Congress the opportunity to agree or not agree with the referendum outcome. It also makes sure the President can veto any law resulting from the initiative. The rules also prohibit Congress from "playing politics" with outcome by not allowing debate on the referendum nor allow pressure by Congressional leadership by requiring the congressmen vote by secret ballot; thereby preventing retribution if individual's vote against the "party line".

If any of my readers are constitutional lawyers, I would certainly appreciate your input.

Now, what are the chances of something like this becoming law? Slim to none, I would think, but if enough people wrote their Congressman (which I will myself), it might at least start a discussion.

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

© 2016 Scott Belford

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