Political Responses to Supreme Court Decisions

By Hamilton, Marci A. | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview

Political Responses to Supreme Court Decisions


Hamilton, Marci A., Harvard Journal of Law & Public Policy


I. REPRESENTATIVE DEMOCRACY AT THE CONSTITUTIONAL CONVENTION

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)

II. CAN DIRECT DEMOCRACY AND REPRESENTATIVE DEMOCRACY COOPERATE TO ACHIEVE A COMMON PURPOSE?

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Political Responses to Supreme Court Decisions
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.