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Port: Nobody, not even the voters, should be able to make laws unilaterally

Rob Port

MINOT, N.D. -- The populist cranks slobbering about the initiated measure process and how it represents the “will of the people” have a hypocrisy at the heart of their argument.

I’m not talking about the fact that initiated measures often represent the will of bored billionaires (like Marsy’s Law in 2016) or a collective of Hollywood activists (like the ethics measure in 2018) who buy their way onto the statewide ballot with the help of in-state marketing firms and professional signature collectors.

Certainly you can say that is all very hypocritical too.

What I’m talking about is that the legislators, people the initiated measure fanatics deride as a cabal of elitists with no business resisting the supposed wisdom of the masses, are also elected by the people.

Their ability to make public policy is also a reflection of the will of the people.

It takes a bit of a dim bulb to carry on about the wisdom of the people while simultaneously deriding the choices those same people make when it comes to electing lawmakers.

This week the state Senate passed SCR4001. This resolution, if passed by the Legislature and then approved by voters, would amend the state constitution to require that any future constitutional ballot measures also be approved by the Legislature.

It would work like this: A given committee would gather signatures and put their issue on the ballot like normal. If it passes, amendment would also have to be approved by the Legislature. If the Legislature votes the issue down, it could go back to the ballot for another vote of the people.

The idea, as the resolution’s primary sponsor Senator David Hogue (R-Minot) explained in a very passionate speech ahead of the floor vote, is to create for constitutional initiated measures the same sort of checks and balances as exist in the Legislature.

The amendment would only apply to proposed constitutional amendments. The process for initiated measures amending state statute, and referendums putting laws passed by the Legislature on the ballot, would stay the same.

In his speech Hogue explained that the Legislature’s process for amending the state constitution has a check on it. The voters must ultimately approve any change (including SCR4001’s changes, if it gets that far).

Why, then, shouldn’t a constitutional amendment initiated at the ballot box also be approved in the Legislature?

The apologists for initiated measures tout direct democracy as if it were some important ideal, but in truth the American system of government was created to avoid any person or group of people having too much power.

Up to and including the electorate.

“In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason,” James Madison wrote in the Federalist Papers, describing his opposition to direct democracy.

“Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob,” he continued.

In the Athenian form of democracy there was required 6,000 citizens for a quorum in an assembly.

If 6,000 are an unreasonable mob, what are several hundred thousand voters?

Rob Port, founder of, a North Dakota political blog, is a Forum Communications commentator. Listen to his Talk Podcast and follow him on Twitter at @RobPort.