Judicial Approaches to Direct Democracy

Harvard Law Review, June 2005 | Go to article overview

Judicial Approaches to Direct Democracy


Americans have turned more and more in recent years to direct democracy to facilitate popular participation in the lawmaking process. (1) In the November 2004 election alone, statewide ballots featured 163 proposals pertaining to myriad subjects, including an increase in Nevada's minimum wage, a mandate for Colorado energy companies to generate ten percent of their electricity using renewable sources, and well-publicized prohibitions on same-sex marriage in eleven states. (2) For the judiciary, this contemporary revival of direct democracy raises an important question: what does the popular provenance of a law mean for the judge who must apply it? For example, how should the popular ratification of a law influence a court's assessment of its constitutionality, if at all? Should courts employ different methods of interpretation when construing the provisions of a ballot measure?

In addressing these questions, some commentators have distinguished between judicial review and statutory interpretation. (3) After all, in many cases these judicial tasks are discrete; litigants may contest the meaning of a statute without raising constitutional questions, and a statute's meaning may be perfectly clear even if its validity is uncertain. Other scholars have considered these two acts of construction jointly, on the view that they are part and parcel of the same judicial function--determining the meaning or scope of a disputed text--and that each judicial task informs the other. (4) In some cases, judicial review and statutory construction overlap; for example, the canon of constitutional avoidance directs a judge to construe a statutory text so as to avoid judging its constitutionality. (5) In discussing the proper judicial approach to direct democracy, this Note incorporates arguments and examples that pertain both to judicial review and to statutory interpretation. The limited scope of this Note precludes a more sophisticated analysis of direct democracy's varying consequences for these different judicial endeavors. (6) This Note's primary focus is the more abstract issue of the judiciary's proper role vis-a-vis directly enacted legislation, a question that transcends the particular tasks of interpretation and review.

Scholars and courts have given little thought to the relevance of direct democracy for the judiciary. To the extent that they have considered the issue, commentators have come to very different conclusions. Some have argued that popular enactment should have no consequence for the judiciary's treatment of a law. (7) Others have suggested that the people deserve greater deference than their representatives and that courts ought to treat direct legislation favorably to accomplish the directly expressed will of the sovereign electorate. (8) Finally, some have advocated treating direct legislation with greater scrutiny, arguing that the deficiencies of direct democracy make popularly enacted laws more likely to suffer from constitutional and other infirmities. (9) Each of these interpretive models, however, treats popular legislation as a uniform species of law that either deserves no special treatment or deserves categorically more or less favorable treatment simply by virtue of its enactment by a vote of the people rather than of their representatives.

This Note argues that all of these models are either inappropriate or incomplete. It contends that the most suitable judicial approach to direct democracy is to distinguish not only between laws enacted by a legislature and laws enacted by the people, but also between different types of popularly enacted laws. Part I discusses why differential treatment of direct legislation is necessary. Parts II and III discuss, respectively, why categorically preferential treatment and categorically skeptical treatment of direct democracy are inappropriate. Part IV recommends a more complex model for judicial review and interpretation that seeks to reinforce the virtues and mitigate the vices of direct democracy by tailoring the judiciary's treatment of a directly enacted law to the type of legislation at issue. …

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