Academic journal article Harvard Journal of Law & Public Policy

Why We Cannot Ask Why: Ethical Independence and Voter Intent

Academic journal article Harvard Journal of Law & Public Policy

Why We Cannot Ask Why: Ethical Independence and Voter Intent

Article excerpt

Should a vote still count if cast for the wrong reason? More specifically, when citizens decide a legislative question themselves, whether through initiative, referendum, or plebiscite, should judges require their votes to be backed by a certain level of responsibility, of "equal concern and respect"? (1) This is not to ask whether laws passed by popular vote require some level of rationality or decency. That is too easy; obviously, they must. (2) Rather, the question is whether the law should require each individual voter, in the cloister of the voting booth, to cast her vote rationally and responsibly. This Note argues no.

Courts and commentators have struggled to determine when laws, whether enacted directly by citizens or through regular legislation, are invalid because of their intentions? This analysis, however, has ignored a key distinction between voter motivation and legislative design. Voter motivation is the particular reason a citizen (or legislator) chooses to vote for or against a particular measure. Legislative design, on the other hand, is what the measure, as divined by tools of statutory construction, is calculated to do. Inquiry into legislative design is necessary for proper adjudication. Inquiry into voter motivation, however, should be forbidden because it intrudes upon voters' "ethical independence," (4) as Professor Ronald Dworkin terms it.

This Note proceeds in three parts. Part I discusses the cases and commentary confronting the question of inquiry into voter intent. The traditional approach has been to bar such inquiry. However, recent court decisions have eroded that rule. Part II posits a defense of the traditional position. Although the legal doctrine locates such defenses under the First Amendment's freedoms of speech and association and the right to privacy, such an approach is an unwieldy shield for voter freedom. Instead, such freedom is best founded in the principle of ethical independence, which animates--but extends far beyond--the First Amendment and the right to privacy. This principle of ethical independence requires the distinction noted above between motivation and design. Part III addresses two objections to Part II. First, it discusses the problem of the law's willingness in other areas to look into the mind. Second, it distinguishes Professor Cass Sunstein's notion of "naked preferences."


Citizen-enacted legislation has a long and controversial history in the United States. (5) Critics have disparaged the practice both as a means for raw majorities to bulldoze minority opposition (6) and as a lawmaking process devoid of deliberation, information, and expertise. (7) Some argue further that the two defects go hand-in-hand. (8) Given the procedural shortcomings of direct democracy, courts have often stepped in to police its bounds.

The settled law--The Supreme Court's first encounter with direct democracy occurred in 1912, (9) when it heard argument to determine whether Oregon's referendum procedure violated the Republican Guarantee Clause. (10) The Court held the matter nonjusticiable. (11) Since then, no case before the Supreme Court has challenged whether a mode of direct democracy, as a procedure itself, is constitutional.

The Court has encountered numerous cases, however, questioning the constitutionality of laws enacted by popular vote. Resolving these cases has invariably required interpretation of the intent behind the laws in question. (12) Stated simply, the Court's view has been that "[t]he sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed." (13) The "implementation of [a law] through popular referendum [cannot] immunize it." (14) In theory, then, the review of popularly enacted and legislatively enacted statutes is the same.

In the equal protection context, courts purport to apply the same rational basis standard to all legislation, whether enacted by citizens or their representatives. …

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