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Judicial Review of Direct Democracy Article Judicial Review of Direct Democracy Julian N. Eulet I. THE SCOPE OF DIRECT DEMOCRACY 1508 I. RETHINKING THE COUNTER-MAJORITARIAN DIFFICULTY 1513 A. Does Direct Democracy Accurately Reflect Majority Will? 1513 B. The Constitutional Filtering of Majority Will 1522 1. The Representation Filter 1526 2. The Divided Power Filter 1527 3. The Entrenched-Rights Safety Net 1528 C. The Constitutional Context of Judicial Review 1531 1. Is the "Difficulty" With Judicial Review Really a Counter-MajoritarianOne? 1531 2. Contextualizing the "Difficulty" With Judicial Review 1533 D. Are States Laboratoriesfor Unfiltered Experimenta- tion? 1539 t Professor of Law, University of California, Los Angeles. I would like to give special thanks to Justice Hans Linde of the Oregon Supreme Court for his helpful insights. The UCLA Law School community was, as always, wonderfully supportive. I am particularly grateful for the assistance af- forded by my colleagues Joel Handler, Kenneth Karst, Alan Katz, Daniel Lowenstein, and Jonathan Varat, the UCLA Law Library staff, and James Gelb. Akhil Amar also offered extremely helpful commentary. An earlier version of this Article was delivered on March 3, 1989, at a conference entitled "From Gold Dust to Silicon Chips: Symposium on the California Constitution," sponsored by the University of California, Hastings College of the Law. The transcript of this speech is reprinted as Checking California's Plebiscite, 17 HASTINGS CONST. L. Q. 151 (1990). 1503 1504 The Yale Law Journal [Vol. 99: 1503 1. The Federal Curb on State Experiments With Unfiltered Majorities 1539 2. Judicial Review Under State Constitutions 1545 III. CHECKING THE PLEBISCITE 1548 A. Judicial Review of Substitutive Plebiscites 1548 1. Equality and Individual Rights at Risk 1551 a. The Need For Filters 1553 b. The Efficacy of Filters 1555 2. The Outlines of a HardJudicial Look 1558 B. Judicial Review of Complementary Plebiscites 1573 C. Are State Courts Up to the Task? 1579 CONCLUSION: A LINGERING DOUBT 1584 APPENDIX A: THE PREVALENCE OF DIRECT DEMOCRACY 1587 APPENDIX B: ELECTORAL ACCOUNTABILITY OF STATE JUDGES 1589 A nation that traces power to the people's will does not easily digest the practice of unelected and unaccountable judges' denying the populace what most of them appear to want. It is no wonder that a substantial portion of constitutional scholarship deals with the apparent tension be- tween judicial review and majoritarian democracy. Judicial review in its conventional guise, however, does not entail a direct conflict between the judiciary and the people. It is instead the will of a legislature that is being thwarted in the name of the Constitution. In fact, this very lack of identity between the people and their representatives forms the foundation for Al- exander Hamilton's defense of judicial review in The Federalist No. 78: "[Wihere the will of the legislature declared in its statutes, stands in op- position to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former."' While we ordina- rily engage in the fiction that legislative enactments represent majority will,2 we discard this fiction when courts find that the people's agents have acted beyond the power delegated to them by the constitutive document. 1. THE FEDERALIST No. 78, at 525 (A. Hamilton) (J. Cooke ed. 1961) [hereinafter all citations to the Federalist are to this edition]. In exercising judicial review, Hamilton concluded, the courts act not in contravention of the people but as "an intermediate body between the people and the legisla- ture." Id. Although "representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves," Hamilton would have none of it. Id. No. 71, at 483-84 (A. Hamilton). 2. But see Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1027 (1984) [hereinafter Storrs Lectures] (rejecting idea that "we can hear the genuine voice of the American people" when Congress speaks during periods of normal politics (emphasis in original)); Ackerman, Constitutional PoliticslConstitutionalLaw, 99 YALE L.J. 453, 461-62 (1989) [hereinaf- ter Constitutional Politics];Amar, Philadelphia Revisited: Amending the Constitution Outside Arti- cle V, 55 U. CHI. L. REv. 1043, 79-87 (1988) (equation of legislature with "the People" is "largely a fake"). As even Alexander Bickel conceded, "the process of reflecting the will of a popular majority in the legislature is deflected by various inequalities of representation and by all sorts of institutional habits and characteristics." A. BICKEL, THE LEAST DANGEROUS BRANCH 18 (1962). 1990] Judicial Review of Direct Democracy 1505 Although most laws originate in a representative body, the constitutions of approximately half the states authorize lawmaking by the electorate itself.' Should the conflict between the lawmaker and judge be played out differently when the people express their preferences directly rather than through an agent? Among the tens of thousands of pages written on the role of courts in a democratic society, this question has received almost no attention. 4 Judicial opinions resolving constitutional challenges to laws en- acted by plebiscite seldom explicitly address the matter of the appropriate standard of review. The unspoken assumption, however, seems to be that the analysis need not vary as a result of the law's popular origin. The nearly three dozen Supreme Court cases reviewing ballot propositions contain scarcely a word on the subject.5 The rare recognition that the law under attack originated with the electorate is most often followed by a boilerplate statement like Chief Justice Burger's in Citizens Against Rent Control/ Coalitionfor Fair Housing v. City of Berkeley: "It is irrelevant that the voters rather than a legislative body enacted [this law] because the 3. See infra note 22. Even in those states that do not provide for statewide initiatives or popular referenda, direct democracy usually exists in some form. See infra text accompanying notes 22-27. 4. There have been a scattering of student comments on the subject. By far the most thoughtful of these is Comment, JudicialReview of Laws Enacted by Popular Vote, 55 WASH. L. REV. 175 (1979); see also Comment, Constitutional Constraints on Initiative and Referendum, 32 VAND. L. REV. 1143 (1979); cf Comment, Judicial Review of Initiative ConstitutionalAmendments, 14 U.C. DAvis L. REV. 461 (1980) (discussing judicial review of procedures for initiatives to amend state constitu- tions). In addition, a few law review articles with somewhat different focuses have addressed the question. See, e.g., Bell, The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1, 22-28 (1978). See also the comments of Laurence Tribe and Jesse Choper in J. CHOPER, Y. KAMISAR & L. TRIBE, THE SUPREME COURT: TRENDS AND DEVELOPMENTS (1981-82), at 242-43 (standard of review should not take into account whether law was enacted by legislature or directly by people). 5. Because the Court frequently makes no mention of the process by which state laws are adopted, the figure may in truth be higher than the one cited in the text. Cases in which the Court's opinion does note the popular origin of the challenged state statute or constitutional provision include Fisher v. City of Berkeley, 475 U.S. 260, 261 (1986); California v. Ramos, 463 U.S. 992, 995 n.4 (1983); Crawford v. Board of Education, 458 U.S. 527, 531-32 (1982); Washington v. Seattle School District No. 1, 458 U.S. 457, 462 (1982); Brockett v. Spokane Arcades, Inc., 454 U.S. 1022, 1023 (1981) (Burger, J., dissenting); Citizens Against Rent Control/Coalition for Fair Housing v. City of Berke- ley, 454 US. 290, 292 (1981); Town of Lockport v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259, 262 (1977); City of Eastlake v. Forest City Enterprises, 426 U.S. 668, 670 (1976); Richardson v. Ramirez, 418 U.S. 24, 28 n.2 (1974); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 357 (1973); Gordon v. Lance, 403 U.S. 1, 2 (1971); James v. Valtierra, 402 U.S. 137, 139 (1971); Hunter v. Erickson, 393 U.S. 385, 386 (1969); Epperson v. Arkansas, 393 U.S. 97, 109 n.17 (1968); Reitman v. Mulkey, 387 U.S. 369, 371 (1967); Jordan v. Silver, 381 U.S. 415 (1965); Lucas %.Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 715 (1964); Scholle v. Hare, 369 U.S. 429, 433 (1962) (Harlan, J., dissenting); AFL v. American Sash & Door, 335 U.S. 538, 539 (1949); Oyama v. California, 332 U.S. 633, 658-59 (1948) (Murphy, J., concurring) (describing "atmosphere heavy with race hatred" surrounding enactment of initiative); Asbury Hospi- tal v. Cass County, 326 U.S. 207, 209 (1945); Columbus Gas & Fuel Co. v. PUC, 292 U.S. 398, 399 (1934); Ex Parte La Prade, 289 U.S. 444, 452 (1933); Pierce v. Society of Sisters, 268 U.S. 510, 530 (1925); Porterfield v. Webb, 263 U.S. 225, 231 (1923); Hawke v. Smith, 253 U.S. 221, 224 (1920); Adams v Tanner, 244 U.S. 590, 591 (1917); State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566 (1916); Truax v. Raich, 239 U.S. 33, 35 (1915); City of Denver v. New York Trust Co., 229 U.S. 123, 125 (1913); Kiernan v. Portland, 223 U.S. 151, 152 (1912); and Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 119 (1912). 1506 The Yale Law Journal [Vol. 99: 1503 voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."6 Intuitively, Chief Justice Burger's position seems wrong. If the people are the sovereign from which all power originates,7 then why should their expression of will not carry more weight than the legislature's crude effort to approximate it? If the root difficulty of judicial review is its counter- majoritarian nature,' why does the argument for judicial intervention not abate as it becomes clearer what the majority prefers? This claim struck a responsive chord with Hugo Black.
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