As the result of what were deemed unwarranted assertions of power, and unjust exactions on the part of the crown and Parliament of Great Britain with reference to the government of the American colonies, there was violent excitement among the people of the colonies prior to the Declaration of Independence, leading to animated discussion of theories of natural rights and the powers of government. Many of the ideas on these subjects which were entertained and advocated by leading men of the time were expressed in language current in France among critics of the monarchical system of government, which had existed there, since the feudal age, with little direct limitation upon its power or representation of the popular will. In France, the natural rights of man, the doctrines of liberty, equality, and fraternity, and the notion that government rested upon an implied social compact to which the governed were parties were widely exploited; and the resulting agitation culminated in the French Revolution of 1789, by which monarchical institutions were overthrown, and a pure republic temporarily substituted. These philosophical theories were, however, not peculiar to France. Some of them were of English origin, and were common among the philosophers of the time in England and in Europe; but in England they did not, as in France, result in immediate modification of the government or institutions.

To the exploiting of so-called natural rights, or the rights of man, and the recognition of the social compact as the foundation of governmental authority (see below, § 204) may be attributed the formal announcement in the Declaration of Independence, and in the constitutions of many of the states, of the doctrine of popular sovereignty, with the corollary that those who exercise the powers of government are vested only with authority conferred upon them in some form by the people. The practical result was that state and federal constitutions were framed on the assumption that sovereign power is found in a general way in the body of the people who are to be governed under such constitutions; that the departments of government provided for thereunder can exercise only such general authority as is given them by the constitution; that any authority asserted in excess of such granted powers, or in violation of restrictions imposed, is unconstitutional; and that acts performed in the attempt to exercise such authority are ipso facto void.

It is only so far, however, as the theoretical principles of popular sovereignty, announced in the Declaration of Independence and in the early state constitutions, are practically recognized and protected by the state and federal constitutions, that they have any legal significance. No provision is made in any of these constitutions for the active exercise by the people of the powers of sovereignty, save as those who may be given the elective franchise are authorized to express their will by the ballot. The voters have no power except that given them under the constitution, and therefore the general and ultimate powers of sovereignty which reside in the body of the people can be practically exercised only by revolution. But by giving to the people a general voice through their electors in the selection of representatives, the government is made responsive to the actual will of the people to such an extent that occasions for revolution will be indeed rare; and it is not likely that at any time the will of the people will be so far repressed by, or unrepresented in the government, that revolution will be justifiable on moral grounds. Whatever may be the moral grounds for revolution, any change in the form of government or interference with the action of the duly constituted authorities, save by a modification of the fundamental law in the method authorized by the constitution, will be unconstitutional.

There has recently been developed in this country a tendency to introduce the initiative and referendum in matters of legislation, and the subject may properly be referred to here because it illustrates a radical departure from English notions as to the functions of the people in affairs of government. The initiative, so called, is an application by voters on their own motion to have a proposed statute enacted into law by the legislature, or submitted to vote of the electors for the purpose of determining whether it shall become a law; and the referendum is the submission to the vote of the electors of the question whether a measure thus proposed or statutes passed by the legislature shall become a law. These methods of securing or determining upon specific legislation have for a long time been known and applied in Switzerland. By the Constitution of South Dakota (1898), Oregon (1902), and Oklahoma (1907), provision is made for legislation by the people, through the initiative and referendum. The agitation in favor of this form of legislation is based on the assumption that the ultimate power resides in the people, and that they should have the opportunity of acting directly through the qualified body of electors if they see fit to do so, instead of through the legislative department of the government. It is apparent, however, that such an exercise of legislative power on the part of the people is inconsistent with the general theory of our government, which involves action of the people through representatives and the division of the functions of government among distinct departments. Indeed, it is still open to discussion, notwithstanding the attempts to introduce the initiative and referendum, whether the exercise of the powers of government by the people through the body of the electors is not in violation of the provision of the federal constitution (Art. IV, § 4), that each state shall have a republican form of government, for it may well be contended that a republican form of government necessarily involves the exercise of the powers of government by representative officers and bodies and the distribution of the powers of government among distinct and independent departments.

The practical objections to this form of legislation are that a small body of chosen representatives can perfect the details of legislation much more effectively than the large body of electors, and that legislative power should be exercised under the restriction of constitutional limitations, which cannot be effectively applied if legislation rests directly upon the popular will. The fundamental constitutional rights of liberty and property should be as fully protected against the will of the majority of the people as they are against the action of the departments of government. The generally recognized policy of submitting local police regulations to popular vote to determine whether they shall go into effect in particular localities (see below, § 29) is not strictly analogous to the referendum, for in such cases, the general statutes under which such police regulations are submitted for adoption or rejection in the particular localities are adopted in the regular manner by the legislative department, and are valid as general laws, while the theory of the initiative and referendum is that the statute itself shall be proposed or enacted by the voters. It may be suggested that such a radical change in our theory of government is of doubtful expediency and should be considered in all its bearings and with a view to all its possible consequences before it shall be accepted.