Those who framed the Constitution opted for a system of representative government rather than direct democracy. The true distinction between the "pure democracies of Greece" and the American government, explained james madison in the federalist #63, lay "in the total exclusion of the people in their collective capacity from any share in the latter." It was this distinction that the Federalists believed might permit American government to succeed where other democracies had failed. Placing the exclusive power of ordinary lawmaking in governors distinct from the governed, said Madison, would refine and enlarge public views "by passing them through the medium of a chosen body of citizens" whose wisdom, patriotism, and love of justice would make them unlikely to sacrifice the interest of the country "to temporal or partial considerations." Representative bodies afforded greater opportunities for deliberation and debate. Popular masses were perceived as too quick to form preferences, frequently failing to consider adequately the interests of others, and overly susceptible to contagious passions.
Part of the Framers' distrust of popular rule was the threat it posed to creditor rights and individual property interests. And the well-heeled delegates had plenty to fear from the masses of have-nots. Indeed, some historians contend that the central problem that prompted the convening of the delegates at Philadelphia was not the weaknesses of the articles of confederation but concern over an excess of populism in the states. In any case, Madison and his fellow Federalists labored mightily—and successfully—to block an attempt to include in the first amendment a right of the people to "instruct their representatives."
In the early part of the twentieth century the Progressives successfully introduced two forms of direct democracy at the state level—the initiative and the referendum. These innovative reforms, now a part of the lawmaking process in more than half the states, were a response to the widely perceived corruption and control of legislators by wealthy interest groups. The Progressives sought to curb legislatures by placing corrective power in the citizenry. The initiative allows the voters to propose and enact legislation by simple majority vote. Initiatives are thus designed to rectify corruption that impedes legislation by circumventing the legislative framework. Conversely, referenda are directed against corruption that produces legislation by adding an additional layer to the lawmaking process. The referendum allows the voters to reject laws previously enacted by the legislature. Thus, the two Progressive reforms simultaneously make it both less difficult and more difficult to enact laws.
Not long after many of the western states began to use the initiative device, its constitutionality came under attack. In Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court was asked to rule whether a state's use of a voter initiative to enact a tax measure was consistent with the republican form of government guaranteed to the states by Article IV, section 4, of the Constitution. The taxpayer argued that the representative nature of republican government precluded the people from taking legislative functions into their own hands. The Court never reached the merits of this claim, holding instead that whether a state government is "republican" was a political question that courts were not competent to answer. The Court, treating the challenge as an attack on the legitimacy of the Oregon government, relied on luther v. borden (1849) for the proposition that such a matter was properly to be resolved by the political branches of the national government (Congress and the President).
The justiciability bar to the resolution of the constitutional challenge to citizen lawmaking remains securely in place. But although the Supreme Court has never passed on the constitutionality of direct democracy devices in general, the Court has condemned its use in particular applications. In hunter v. erickson (1969) the Supreme Court struck down a voter initiative altering a city charter to require that any open housing laws passed by the city council be approved by voter referendum before taking effect. The Court's majority held that by making open housing laws more difficult to enact, the charter amendment erected special barriers to legislation favoring ethnic and religious minorities and therefore violated the equal protection clause of the fourteenth amendment.
Similar concerns led the Court to invalidate an anti-school busing initiative passed by the voters of the state of Washington. In Washington v. Seattle School District No. 1 (1982), a 5–4 majority thwarted the voter reversal of an attempt by Seattle school authorities to achieve racial balance through involuntary busing. The majority's route to its conclusion that the initiative offended the equal protection clause cannot easily be mapped. At times, Justice harry a. blackmun, the opinion's author, appears to find impermissible racial motivation. He notes that "there is little doubt that the initiative was effectively drawn for racial purposes," a fact of which he believed the Washington electorate was "surely aware." Elsewhere in the opinion, he seems to rest the decision on the customized alteration of the normal decision-making process for issues of unique interest to minority groups. In such instances, Blackmun suggests, inquiry into motivation is not necessary. This latter reading is reinforced by the 8–1 decision in crawford v. board of education (1982), handed down the same day.
Over Justice thurgood marshall's lone dissenting observation that the case was indistinguishable from Seattle, the Court in Crawford sustained an amendment to the California Constitution (approved overwhelmingly by both houses of the California legislature and ratified by the voters) stripping state courts of the power to order busing, except in cases of Fourteenth Amendment violations. It is not uncommon for commentators to express amazement that the two cases were decided by the same Court, much less on the same day. The Court's conclusion in Crawford that the California amendment was not adopted with a racially discriminatory purpose is difficult to square with its opposite assessment on a similar record in Seattle.
What differentiates Seattle from Crawford, however, is the role of direct democracy. The sponsors of the Washington initiative sought to circumvent the representative process that produced Seattle's pupil reassignment plan. The school board had historically made considerable efforts to alleviate the isolation of the district's sizable minority population. Local attempts to recall the board members responsible for some of these efforts had failed. The initiative process afforded an opportunity for the populace to reverse the minority's gains. In marked contrast to the Washington process, the California amendment in Crawford was a joint effort of the legislature and the voters. Here was not a case of the people bypassing a representative body. The Madisonian nightmare, so stark in Seattle, was largely absent from the California reaction against a zealous judiciary. None of this is explicit in the two opinions. Indeed, neither opinion makes any serious effort to distinguish its companion case. The Justices were understandably hesitant to announce explicitly a distinction grounded on a distrust of electoral majorities. But it is hard to reconcile the two results on any other ground.
Nowhere is the tension between the Madisonian fears of popular masses and the American democratic ideal more in evidence than in an interchange between Justice hugo l. black and Thurgood Marshall, then solicitor general, that occurred during the oral argument in reitman v. mulkey (1967). By an overwhelming majority, California voters had adopted an initiative measure amending the state constitution to repeal existing open housing laws and forbid the enactment of new ones. During oral argument, Marshall stressed that this authorization of racial discrimination in the private housing market had been the result of voters bypassing the representative process. "Wouldn't you have exactly the same argument," he was asked, if the provision challenged "had been enacted by the California legislature?" "It's the same argument," Marshall replied, "I just have more force with this." "No," interjected Justice Black, "it seems to me you have less. Because here, it's moving in the direction of letting the people of the States … establish their policy, which is as near to a democracy as you can get."
Hugo Black was undoubtedly right in observing that direct voter legislation is quite a bit closer to "democracy" than legislative products. What his vision obscures, however, is the intentional nature of the gap between true democracy and the republican form of government carved out by those who drafted the Constitution. Representative government was designed to capture the virtues of popular sovereignty without being tainted by its vices. Accountability to the electorate was to be the touchstone of legitimacy. But the Framers opted for the virtues of agency, favoring a removed deliberation over the impassioned decision making of participatory democracy.
Two-thirds of those questioned in a 1987 nationwide Gallup survey said that citizens ought to be able to vote directly on some state and local laws, and a poll conducted in 1977 found more than half in favor of a constitutional amendment for a national initiative. In the late 1970s, the Senate held extensive hearings on just such a proposed amendment. Despite the sponsorship of more than fifty members of Congress and supportive testimony by a wide range of both conservatives and liberals, the proposal died in committee. Americans are not, it seems, quite ready to abandon their commitment to the Framers' preferences.
Julian N. Eule
Bell, Derrick 1978 The Referendum: Democracy's Barrier to Racial Equality. Washington Law Review 54:1–29.
Cronin, Thomas E. 1989 Direct Democracy. Cambridge, Mass.: Harvard University Press.
Eule, Julian N. 1990 Judicial Review of Direct Democracy. Yale Law Journal 99:1503–1590.