Voter Initiatives and American Federalism: Putting Direct Democracy in its Place

37 Pages Posted: 25 Sep 2003  

Maimon Schwarzschild

University of San Diego School of Law

Abstract

The idea of direct democracy provokes sharply conflicting thoughts and feelings. There is the hopeful vision of direct democracy: free and equal citizens governing themselves, public decisions that are truly of, by, and for the people. But direct democracy, especially the voter initiative as practiced in California, conjures up negative, even lurid, images for many people - perhaps especially for academics. On the dystopian view, voter initiatives mean public decisions by vote of an often ill-informed public, polarized by "Yes-or-No" questions, manipulated by demagoguery and special interests; imperiling the rights and interests of minorities, and weakening representative and republican institutions.

This article argues that federalism provides a proper - and properly tamed - place for direct democracy: that voter initiatives at the state but not the federal level are a good thing to have in the mix of American lawmaking. The argument is an application, in part, of the idea of value pluralism associated with the thought of Isaiah Berlin.

Direct democracy is pluralist in at least three ways. (1) It is institutionally pluralist, an element of political life that does not exist at the federal level, or in many states. (2) It makes for pluralism of participants, opening a door to interests and groups outside the usual mainstream of representative politics. (3) It makes for pluralism of results, yielding political outcomes whose tendency differs, at least somewhat, from that of laws typically enacted by legislatures. The difference in tendency shouldn't be exaggerated, but voter initiatives on the whole do have a distinctive - and somewhat conservative and libertarian - tilt.

Federalism minimizes some of the genuine drawbacks and dangers of direct democracy, which might otherwise do more to threaten pluralism than to advance it. There is no direct democracy at the federal level. There are no voter initiatives in more than half the states. Where there are initiatives, most of a state's laws continue to be made by the legislature. And initiatives are subject to judicial review and can be struck down for violating federal laws or the US Constitution. Federalism means that direct democracy can function as a political counterweight, but that representative democracy will not be overwhelmed by peasants with pitchforks.

Keywords: constitutional law, federalism, democracy, direct democracy

JEL Classification: K19, K39

Suggested Citation

Schwarzschild, Maimon, Voter Initiatives and American Federalism: Putting Direct Democracy in its Place. Journal of Contemporary Legal Issues, Forthcoming. Available at SSRN: https://ssrn.com/abstract=449040 or http://dx.doi.org/10.2139/ssrn.449040

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)

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