I want to dissent initially from the rather constricting frame of reference that Schubert has established in his paper. He has every right in the world to set rhetorical snares, but I have no intention of walking into them. If I may summarize, Schubert asserts that he is a spokesman for a radical new direction in the study of public law, claiming that the old ways are moribund. He further urges that we should look with envy at the creative function of the social psychologists who supplied the Supreme Court with the banners it carried in Brown v. Board of Education while we were bumbling around with historical and philosophical trivia. He concludes that instead of wasting our time with talmudic disputations on whether the Supreme Court reached the “right” or the “wrong” decisions in specific cases, we should settle down to build a firm “scientific” foundation for our discipline.

Not the least amusing aspect of this indictment is that I find myself billed as the defender of the ancien régime, as the de Maistre of public law. Therefore, for the benetfit of the young and impressionistic, let me break loose from Schubert's rhetorical trap: I too think that much of the research done in public law—and, for that matter, in political science generally—has been trivial.

It may be assumed at the outset that any government based on the democratic principle should, regardless of the form it may take, reflect existing public opinion. The actual method by which expression may be given to the will of the people is of secondary importance. We have relied, in the past, and are still relying on representative institutions for the performance of this prime function of democratic government. Although satisfactory results have, on most occasions, been obtained, numerous instances are on record in which the action of the people's representatives has been at variance with definitely formulated public opinion. Such instances have been pointed to by critics as indicating serious defects in the working of the representative system.

To remedy these defects the devices known as the initiative and referendum were conceived and incorporated into many state constitutions. These instruments of government enable the voters, by means of the ballot, to supplant or supplement laws enacted by their representatives by laws of their own making. They were designed not to overthrow representative government but to prevent its diversion from its proper sphere of activity. When legislation does not seem to conform to public opinion the people may, by direct exercise of the law-making power, correct the error by popular vote, and the result is to be taken as the final word in determining what the will of the people really is on the subject in point. Public opinion is thus to find expression in the will of the electorate through the balloting process.