Academic journal article Harvard Journal of Law & Public Policy

Political Responses to Supreme Court Decisions

Academic journal article Harvard Journal of Law & Public Policy

Political Responses to Supreme Court Decisions

Article excerpt


Direct democracy, as Professor Clark has pointed out, is not necessarily the people talking. (1) Quite appropriately, he has focused on the ways in which representative democracy--the republican form of democracy--works. (2) This Essay will make a separate point, which ties in with the Framers' original intent in choosing republicanism over direct democracy. If one refers to the notes of the debates at the Constitutional Convention--as opposed to relying solely on the Federalist Papers, which were, after all, in significant part propaganda to obtain ratification--one discovers that when the Framers gathered in Philadelphia for the Constitutional Convention they were not very fond of "the people." (3) They thought of the people as an unruly mob, incapable of being corralled to attain the larger public good. (4)

The Convention was not only not a populist movement, it was also deeply suspicious of the capacities of the people to even elect public leaders, let alone decide matters of public policy. Roger Sherman of Connecticut, for example, stated that "[t]he people ... [immediately] should have as little to do as may be about the Government." (5) Sherman insisted that Congress should be elected by the state legislatures and opposed election by the people on the grounds that their lack of information made them easily susceptible to deception. (6) Elbridge Gerry of Massachusetts added: "The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots." (7) Colonel George Mason of Virginia rejected direct election of the President as follows: "The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates." (8)

The Framers sought a way to repair the republican form of democracy that had been codified by the Articles of Confederation and that had failed so spectacularly. This, our first constitution, was an abject failure. (9) Our second constitution--the one we employ today--was decidedly more successful, and that success is due in part to the Framers" tinkering not with populism or direct democracy, but with representative democracy. The Articles were seen as a failure because they had not yielded high-minded representatives or legislatures that operated to serve the public good. Instead, state legislatures had become bastions of corruption. (10)


For the Framers, representative democracy was intended to filter faction--what today we would call interest groups--because when narrowly focused groups act unilaterally, they can undermine the public good. (11) The Framers wanted to create a system that would enable representatives to operate as independent decision makers who would take interests and factions into account as they looked toward the larger public good. (12)

If we agree that the representative constitutional order is intended to move decision making away from factional-centered goals toward objectives that take into account the larger good, the question for direct democracy is whether it can perform the same horizon-altering function. In other words, however popular decision making happens--whether through town hall meetings, referenda, or initiatives--the question is whether the process is capable of framing factional interest in a way that moves public decision making beyond the view of the narrow group.

The short answer is that we have not yet studied direct democracy processes sufficiently to pose a certain, or near certain, answer to the question. Although direct democracy has existed in the United States since the late nineteenth century, (13) it is mostly a creature of our Western states and today remains largely under-examined. (14)

III. …

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