Direct Democracy, Courts, and Majority Will

Abstract

VOTERS IN MANY STATES use ballot propositions to enact laws on everything from term limits and taxes to abortion and same-sex marriage. Many of these propositions test the boundaries of federal and state constitutional law. This pits the people, who support the propositions and who are sovereign, against the parchment, which derives authority from ratification by people who came before. Judges, some elected, mediate this conflict by interpreting vague constitutional language. These ingredients make judicial review of propositions explosive. The practice exposes fundamental tensions in American law, including conflicts over when minority rights should yield to majorities, the reach of judicial review, and the optimal level of judicial independence. In Direct Democracy and the Courts, Ken Miller, a political scientist and lawyer at Claremont McKenna College, makes an important and impressive contribution to scholarship in this field. The book blends history, institutional analysis, case law, and comprehensive data to tell the story of propositions, courts, and the constitutions that bind them. Miller does not advance a theory but instead explores a theme: the relationship between the initiative process and the judiciary. Sometimes that relationship has been contentious, manifesting the conflict between popular sovereignty and the judiciary that has simmered since the founding.1 Other times the relationship has been harmonious. Miller describes the times, places, and manners in which that relationship has developed. The book begins with a short, lucid history of direct democracy in the United States. This includes a review of the Populist and Progressive movements and an interesting look at the political lives of William Jennings Bryan, Woodrow Wilson, Theodore Roosevelt, and William Howard Taft. Illustrating the longevity of the relationship between initiatives and courts, Miller describes failed legal challenges in the early 1900s that sought to invalidate direct democracy on federal constitutional grounds. The book shows which states adopted direct democracy and when they did so, the frequency and timing of its use, and the topics initiatives have addressed. In 50 pages Miller presents a thorough overview of America’s experiment in direct democracy, with abundant citations for readers who want more detail. The second part of the book, its heart, focuses on conflicts between initiatives and the judiciary. Miller begins by explaining that courts are “best-positioned to place a check on initiatives” (p. 79) because of their role in interpreting constitutions and their willingness in the last century to enforce certain rights. He describes the debate among legal academics and judges over whether to hold propositions to stricter, looser, or the same constitutional standards as ordinary legislation. He then presents original data on post-election legal challenges to initiatives between 1904 and 2008 in the five “strongest” (p. 104) initiative states: California, Oregon, Washington, Colorado, and Arizona. These data are broken down by state, time period, and topic of proposition. The book presents and analyzes, albeit less systematically, data from other states as well.