Are Ballot Initiatives Unconstitutional?
In this weekend's WSJ, John Fund bemoans the attempts of "elites" to invalidate ballot initiatives, like Colorado's Taxpayer Bill of Rights, passed by voters in 1992.
As much as I sympathize with the Taxpayer Bill of Rights (which limits the growth of government and makes it hard to raise taxes), I wonder whether opponents have a point, constitutionally-speaking. A somewhat obscure clause of the Constitution says that the US must "guarantee to every state in this Union a Republican Form of Government." It's easy to glide over this provision, assuming that it merely means that the feds will stop any state from becoming a monarchy.
But there's evidence that the so-called "Guarantee Clause" was meant to prevent states from descending into "democracy," ie, direct rule by the voters. Some of the Founders candidly said that the problem with the US under the Articles of Conferation was an "excess of democracy" in the states. And in the Federalist Papers, James Madison goes to great lengths to distinguish "republican" government from "democracy," the former being superior because it will "refine and enlarge the public views by passing them through a chosen body of citizens, whose wisdom may best discern the true interest of their country." So what do you think -- are ballot initiatives an unconstitutional infringement of the requirement of "republican" government?
- Comment (26)
- · Quote
- · UnfollowFollow (4)
- Pages:
- 1
- 2
- Pages:
- 1
- 2
Comments :
Apr '11
Re: Are Ballot Initiatives Unconstitutional?
Great question.
While a much greater betrayal of Original Intent is regularly committed by activist courts, we would do well not to fall into the same kind of Constitutional cherry-picking.
I look forward to reading reader comments.
Mar '11
Re: Are Ballot Initiatives Unconstitutional?
Given that "ballot initiative" states also have state legislatures that can overturn or repeal successful ballot measures, I don't see a problem. These states still have a republican form of government, albeit one where citizens can take direct legislative action.
Mar '11
Re: Are Ballot Initiatives Unconstitutional?
Adam,
I strongly suspect that I am in the minority of the Ricochet community in my opinion on this issue, but I can't resist answering your question.
In a way, your question reminds me of the recent dust-up over the 17th Amendment. The late 19th century had a series of temporary problems with party organization and political corruption, but a series of permanent solutions to those temporary problems resulted. I would't repeal the 17th Amendment, but I surely never would have passed it in the first place.
Referenda fall into a similar category. I am skeptical of the wisdom of crowds, and I think referenda are a distortion of the republican form of government. They lead to various abuses--not least of which is the massive expenditure of interest group $ from outside a state in the internal politics of a particular constituency. I am a federalist, however: each state is entitled to its own constitution and I do not think a state referendum violates the letter of the US Constitution.
I would absolutely and unequivocally oppose any amendment proposing to create a national popular referendum.
Mar '11
Re: Are Ballot Initiatives Unconstitutional?
I’m not an attorney (and I don’t play one on Ricochet), but it seems to me that Andrew is right. Ballot initiatives don’t render state legislatures moot. Ben Franklin will be glad to know we have kept a republic.
Ballot initiatives provide an often useful mechanism to permit voters to press their interests in a focused manner. Politicians of any stripe may lie, be disingenuous or, even if honest and forthright, represent a hodgepodge of intentions. Voters typically choose the least objectionable candidate. Their votes cannot be seen as support for any given position the candidate they voted for may adopt.
Some people who don’t see much wisdom in crowds complain of the cost of ballot initiatives, but I think they’re often worth it. Who among us has never ordered from the a la carte menu? Sometimes it's the only way to get what you want.
Edited on Jun 12, 2011 at 8:39amJun '11
Re: Are Ballot Initiatives Unconstitutional?
This is an excellent question and here's my 2 cents:
Let's recall - the definition of what constituted a "Republic" was not set in stone at the time of the Constitution's creation. History offered the Framers a variety of examples of Republican government, not all of which we exactly alike.
However, Madison in Federalist 39 may have defined it for all intents and purposes:
"If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior."
He doesn't specifically say how that government derives its powers from the people; he just says the power has to come from the people. Hence, could we construe from Madison's definition that a referendum is as good as a vote by the State Legislature?
Feb '11
Re: Are Ballot Initiatives Unconstitutional?
Perhaps laws created by initiatives might be unconstitutional, but amendments to state constitutions by initiatives might be a different thing entirely.
Jun '11
Re: Are Ballot Initiatives Unconstitutional?
Crow's Nest: Adam,
I would absolutely and unequivocally oppose any amendment proposing to create a national popular referendum. · Jun 12 at 8:01am
I threw our television out several years ago and have never regretted what at the time seemed rash.
However, I did see 5 minutes of some talent show a couple of years ago where the audience actually voted on the spot yea or nay for the performers.
A nightmarish image flashed through my head of America 30 years from now voting electronically on every issue all the time, all day and all night. Mass democracy is achievable now that Al Gore invented the internet.
Was it Montesquieu who doubted democracies and republics could survive when spread out over a broad geographic region?
Well, Baron, welcome to the 21st century!
Oct '10
Re: Are Ballot Initiatives Unconstitutional?
I have often lamented the limited ability of citizens to propose a referendum in my state of N.J. But seeing how referendums have straight-jacketed the California legislature, if they are indeed unconstitutional, perhaps a ban on them wouldn't be so bad.
Jun '10
Re: Are Ballot Initiatives Unconstitutional?
That "chosen body of citizens," mostly Republicans, here in Tennessee just passed a law to make sending an image that might be offensive to anyone a jailable offense.
So much for the wisdom of "chosen bodies of citizens."
I'm in favor of the occasional national referendum. A law to clarify who, when, and whether war actually needs to be declared to be fought seems like a good topic to me, especially sense the executive branch and the legislative branch, who don't actually do the fighting by the way, have never seemed to be able to agree on the subject.
Mar '11
Re: Are Ballot Initiatives Unconstitutional?
The Federalist Papers also warned about factions. They did not foresee the formation of organized political parties as they were an unknown animal then. Ballot initiatives became popular when people perceived that legislatures were controlled by narrow interest rather than a concern for the general welfare,
Jul '10
Re: Are Ballot Initiatives Unconstitutional?
Not so long as there is a 10th Amendment.
Jul '10
Re: Are Ballot Initiatives Unconstitutional?
The California legislature deserves to be in a straightjacket in a place of incarceration with no visiting rights. The ruin liberal legislators have brought to the state cannot be exaggerated. Without Proposition 13, which kept them at bay for many years, the former Golden State would be in even worse shape than it is now.
Dec '10
Re: Are Ballot Initiatives Unconstitutional?
I'm in general agreement with Chesterton's idea of wisdom disbursed among the electorate. This gets dicey in the initiative process because of the complexity of the issues, as opposed to the simplicity of voting for the person who best represents your values.
Colorado ended up with TABOR, a great good, but also with Amendment 23 to increase education funding with a formula in direct conflict with TABOR. I don't believe it was something the voters understood (myself included) when we voted on it.
I'm inclined to let the voters have a go at most things regardless. Given Robert E. Lee's Tennessee example above, there isn't much wisdom in the legislatures either.
As to the question of the constitutionality of citizen initiatives, I'm suspicious of any "constitutional" argument which takes power from the people and concentrates it in government.
Jun '11
Re: Are Ballot Initiatives Unconstitutional?
Western Chauvinist:
I'm inclined to let the voters have a go at most things regardless. Given Robert E. Lee's Tennessee example above, there isn't much wisdom in the legislatures either.
Amen to that. We've relied on our elected "elite" and it has left us in a dubious position.
If the Framers knew that they had it perfectly correct, why did they make provisions for amendments?
Mar '11
Re: Are Ballot Initiatives Unconstitutional?
"As to the question of the constitutionality of citizen initiatives, I'm suspicious of any "constitutional" argument which takes power from the people and concentrates it in government."
I share your suspicion. But no one is suggesting that a faceless "government" of appointed royal commissioners that you have no control over should make decisions for you. What is being debated is whether drafting laws is better done by elected representatives of the people, or by the people themselves directly.
We have a system of of divided government. A mixed regime with a balance of power. When the people enact laws directly, most of these checks and balances are overridden. They are often overridden for reasons that seem good, necessary, and just at a given moment, but which do not age well with the passage of time.
Because I believe in this system of divided government, I believe states that have the referendum process in place should keep it. If it works for you and you are happy with it, let the laboratories of democracy keep experimenting.
Because I believe in this system of checks and balances, though, I believe representation of the sort the founders intended is our best safeguard.
Oct '10
Re: Are Ballot Initiatives Unconstitutional?
Jerry:"The California legislature deserves to be in a straightjacket in a place of incarceration with no visiting rights. The ruin liberal legislators have brought to the state cannot be exaggerated. Without Proposition 13, which kept them at bay for many years, the former Golden State would be in even worse shape than it is now."
I meant that, AFAIK, the referenda have mandated much of California's state spending. I didn't mean to exonerate the fools running California's gov't, nor the voters. Since Gov. Jerry Brown, who caused much of these problems by allowing gov't unions, has been re-elected, I have to agree with Dennis Prager who said "What's the difference between California voters and the passengers on the Titanic?
The passengers on the Titanic didn't vote to hit the iceberg."
Edited on Jun 12, 2011 at 1:10pmRe: Are Ballot Initiatives Unconstitutional?
Robert E. Lee
That "chosen body of citizens," mostly Republicans, here in Tennessee just passed a law to make sending an image that might be offensive to anyone a jailable offense.
So much for the wisdom of "chosen bodies of citizens." · Jun 12 at 10:33am
I don't disagree that voters are just as likely to get it right as the legislature -- like the late Bill Buckley, I'd rather be ruled by the first 500 names in the Boston phone book (than the faculty of Harvard... or the Massachusetts legislature). But I'm asking about original intent -- does anyone else suspect that the Guarantee Clause was understood to prevent the situation we have today where voters can directly override the state legislatures on basically any matter of policy?
Nov '10
Re: Are Ballot Initiatives Unconstitutional?
A republic is a derivative of a democracy. There can be no republic without there first being a referendum to form the republic and elect its officials. I think that the point is moot.
Dec '10
Re: Are Ballot Initiatives Unconstitutional?
Your question was quite clear, it's just that some of us, being neither lawyers nor constitutional scholars, wander off-topic. I guess I'll have to concede the citizen initiatives appear to be unconstitutional and certainly have resulted in many bad outcomes.
However, the author of the Colorado measure has said it is written to target TABOR and nothing else. Which means, fundamentally, the legislature would like to go on taxing and spending without the obstacle of putting such policies up to the vote. I'm not suggesting we have to fight constitutional selectivity with constitutional selectivity. But, I am stating we need to know our enemy and it is "the ends justifies the means" Left. If Colorado undoes TABOR, it better damn well undo Amendment 23 and all the other destructive initiatives passed by a befuddled electorate. We'll see how that goes.
Jun '10
Re: Are Ballot Initiatives Unconstitutional?
michael kelley
Was it Montesquieu who doubted democracies and republics could survive when spread out over a broad geographic region?
Speaking of Montesquieu, he said there were three species of government: republican, monarchical, and despotic:
"A republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice."
If the Founders were using Montesquieu's definitions, then the only unconstitutional forms of State government would be monarchy and despotism or dictatorship.