Note: Law & Politics: The Case Against Judicial Review of Direct Democracy

28 Pages Posted: 25 Jan 2007

Abstract

This Note argues against strong judicial review of direct democracy. Judicial review has been the dominant answer in legal scholarship for the perceived danger of majoritarian tyranny in any democratic system. But progressives throughout American history, as well as a growing number of respected law professors, have questioned the assumption that courts or even legislatures are better protectors of discrete and insular minorities than the rights respecting populace. Although the vast majority of legal scholarship still displays a crippling cynicism about popular competence, this view cannot continue to block progressives from participating in initiative campaigns. Exclusive resort to elitist procedural mechanisms begs the question of populism and drives a wedge between law and the people it seeks to protect. The only way forward for progressive agendas is to engage directly with direct democracy, fighting inevitable bad results at their source rather than merely trying to circumvent the results with appeals to undemocratic courts.

Keywords: Direct Democracy, Initiative, Referendum, Popular Constitutionalism

Suggested Citation

Johanningmeier, Corey A., Note: Law & Politics: The Case Against Judicial Review of Direct Democracy. Indiana Law Journal, Vol. 82, p. 1125, 2007. Available at SSRN: https://ssrn.com/abstract=959280

Corey A. Johanningmeier (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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