Academic journal article William and Mary Law Review

Preserving Republican Governance: An Essential Government Functions Exception to Direct Democratic Measures

Academic journal article William and Mary Law Review

Preserving Republican Governance: An Essential Government Functions Exception to Direct Democratic Measures

Article excerpt

TABLE OF CONTENTS

INTRODUCTION

  I. THE FRAMERS' REJECTION OF DIRECT
     DEMOCRACY FOR THE FEDERAL AND
     STATE GOVERNMENTS

     A. The Constitutional Convention of 1787 and
     the Importance of the Guarantee Clause

     B. The Federalist v. Antifederalist Debates

     C. The Final Rejection of Direct Democracy

 II. CURRENT STANDARDS OF JUDICIAL REVIEW:
     A PERSPECTIVE FROM CALIFORNIA

     A. Statutory Controls and Court Restrictions on
     Ballot Initiatives

     B. Deferential Treatment of Direct Democratic
     Measures by the California Courts and Beyond

III. AN ESSENTIAL GOVERNMENT FUNCTIONS EXCEPTION TO
     BALLOT INITIATIVES EMBRACES THE FRAMERS'
     REPUBLICAN IDEALS

     A. Pragmatic Consequences of Unrestricted
        Ballot Initiatives

        1. Limiting Legislatures' Ability To Solve
           Fiscal Crises

        2. The Increased Influence of Special
           Interest Groups

     B. Structural Consequences of Unrestricted
        Ballot Initiatives

     C. The Essential Government Functions Exception

     D. The Importance of the Guarantee Clause in
        Judicial Review of Ballot Initiatives

CONCLUSION

INTRODUCTION

James Madison, writing in Federalist No. 10, observed the difference between a republic and a pure democracy. (1) Whereas a republic consists of a scheme of representative governance utilizing a deliberative process to legislate, a pure democracy gives legislative power directly to the public. (2) The Constitution embraces representative governance at the federal level (3) and also guarantees it to the states. (4) Yet with the increased prevalence of direct democratic measures, such as ballot initiatives and referendums, the structural lines between a republican government and a direct democratic government are being blurred, producing both structural and pragmatic consequences for state governments.

The most telling examples of these consequences occur in California. The state has recently endured difficult fiscal times, including a $42 billion budgetary shortfall for the 2009-2010 fiscal year, the worst bond rating of any state in the nation, and an unemployment rate hovering around 11 percent. (5) California voters overwhelmingly rejected ballot measures seeking to ease the budgetary gap between spending and revenue, (6) which forced the legislature to make significant funding cuts for social programs and education. (7) The state even went so far as to enact budgetary cuts to the prison system--a reduction that could provide approximately 16,000 convicted felons with an early release date. (8)

The Chief Justice of the California Supreme Court, Ronald M. George, recently linked California's budgetary and governance problems to its constitutional structure. (9) In particular, Chief Justice George pointed out that "California's lawmakers, and the state itself, have been placed in a fiscal straitjacket" (10) by the state's reliance on the referendum and voter initiative processes. (11) The "fiscal straightjacket" to which the Chief Justice refers (12) is a combination of two state constitutional amendments that restrict the legislature's ability to raise revenue and pass a budget. (13) Although other states have similar budgetary or revenue restrictions, California is the only state to have both. (14) The current state of the California budgetary process, which is arguably the result of the institutional framework that ballot initiatives have placed on the legislature, highlights the pragmatic consequences that unrestrained direct democracy can have on the governance of a state. (15) With less prohibitive budgetary and revenue-raising restrictions, other states are able to implement a wider variety of solutions to budgetary shortfalls. California, however, is forced to solve its budgetary problems with its hands tied.

Although the effects of ballot initiatives may be most visible in California, eighteen states--predominantly western states--currently allow citizens to amend their state constitutions with a ballot initiative. …

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