Direct Democracy, Courts, and Majority Will

Election Law Journal, Vol. 9, p. 211, 2010

8 Pages Posted: 20 Sep 2010 Last revised: 3 Aug 2015

See all articles by Michael D. Gilbert

Michael D. Gilbert

University of Virginia School of Law

Date Written: March 18, 2010


This paper reviews Direct Democracy and the Courts by Ken Miller.

Voters in many states use ballot propositions to enact laws on everything from term limits and abortion to taxes and same-sex marriage. Many of these propositions test the boundaries of federal and state constitutional law. This pits the people, who support the propositions and who are sovereign, against the parchment, which derives authority from ratification by people who came before. Judges, some elected, mediate this conflict by interpreting vague constitutional language. These ingredients make judicial review of propositions explosive. The practice exposes fundamental tensions in American law, including conflicts over when minority rights should yield to majorities, the reach of judicial review, and the optimal level of judicial independence.

In Direct Democracy and the Courts, Ken Miller, a political scientist and lawyer at Claremont McKenna College, makes an important and impressive contribution to scholarship in this field. The book blends history, institutional analysis, case law, and comprehensive data to tell the story of propositions, courts, and the constitutions that bind them. Miller does not advance a theory but instead explores a theme: the relationship between the initiative process and the judiciary. Sometimes that relationship has been contentious, manifesting the conflict between popular sovereignty and the judiciary that has simmered since the founding. Other times the relationship has been harmonious. Miller describes the times, places, and manners in which that relationship has developed.

Suggested Citation

Gilbert, Michael, Direct Democracy, Courts, and Majority Will (March 18, 2010). Election Law Journal, Vol. 9, p. 211, 2010, Available at SSRN:

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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