Political responses to Supreme Court decisions.

• Author: Hamilton, Marci A.
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

1. REPRESENTATIVE DEMOCRACY AT THE CONSTITUTIONAL CONVENTION

   Direct democracy, as Professor Clark has pointed out, is not necessarily the people talking. (1) Quite appropriately, he has focused on the ways in which representative democracy--the republican form of democracy--works. (2) This Essay will make a separate point, which ties in with the Framers' original intent in choosing republicanism over direct democracy. If one refers to the notes of the debates at the Constitutional Convention--as opposed to relying solely on the Federalist Papers, which were, after all, in significant part propaganda to obtain ratification--one discovers that when the Framers gathered in Philadelphia for the Constitutional Convention they were not very fond of "the people." (3) They thought of the people as an unruly mob, incapable of being corralled to attain the larger public good. (4)

   The Convention was not only not a populist movement, it was also deeply suspicious of the capacities of the people to even elect public leaders, let alone decide matters of public policy. Roger Sherman of Connecticut, for example, stated that "[t]he people ... [immediately] should have as little to do as may be about the Government." (5) Sherman insisted that Congress should be elected by the state legislatures and opposed election by the people on the grounds that their lack of information made them easily susceptible to deception. (6) Elbridge Gerry of Massachusetts added: "The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots." (7) Colonel George Mason of Virginia rejected direct election of the President as follows: "The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates." (8)

   The Framers sought a way to repair the republican form of democracy that had been codified by the Articles of Confederation and that had failed so spectacularly. This, our first constitution, was an abject failure. (9) Our second constitution--the one we employ today--was decidedly more successful, and that success is due in part to the Framers" tinkering not with populism or direct democracy, but with representative democracy. The Articles were seen as a failure because they had not yielded high-minded representatives or legislatures that operated to serve the public good. Instead, state legislatures had become bastions of corruption. (10)

2. CAN DIRECT DEMOCRACY AND REPRESENTATIVE DEMOCRACY COOPERATE TO ACHIEVE A COMMON PURPOSE?

   For the Framers, representative democracy was intended to filter faction--what today we would call interest groups--because when narrowly focused groups act unilaterally, they can undermine the public good. (11) The Framers wanted to create a system that would enable representatives to operate as independent decision makers who would take interests and factions into account as they looked toward the larger public good. (12)

   If we agree that the representative constitutional order is intended to move decision making away from factional-centered goals toward objectives that take into account the larger good, the question for direct democracy is whether it can perform the same horizon-altering function. In other words, however popular decision making happens--whether through town hall meetings, referenda, or initiatives--the question is whether the process is capable of framing factional interest in a way that moves public decision making beyond the view of the narrow group.

   The short answer is that we have not yet studied direct democracy processes sufficiently to pose a certain, or near certain, answer to the question. Although direct democracy has existed in the United States since the late nineteenth century, (13) it is mostly a creature of our Western states and today remains largely under-examined. (14)

3. PROBLEMS POSED BY THE DIRECT DEMOCRACY PROCESS

   The notion of direct democratic decision making as "the people" making public policy is a romantic ruse for what is actually a much more complicated process. In many circumstances, the people do not have a meaningfully more significant role in direct democracy processes than they do in the representative process. (15)

   Their role in both boils down to pulling a lever in the voting booth. Yet there is also a radical difference between the two situations. In the representative process, the voter is choosing an individual who will be held accountable for public policy decisions in many policy areas. The voter delegates decision-making authority based on the premise that the representative will serve the larger good. (16) In the direct process, the voter is choosing a public policy itself without having to account to others for those choices. This immediately raises the specter of self-interested decision making on the part of the individual who can cast a secret ballot without ever having to disclose the content of the vote or the reasons for it. This is not to say that representatives do not act out of self-interest; obviously, they do. The point, rather, is that the danger of self-interested voting is simply higher with individuals than with publicly scrutinized representatives. (17)

   Furthermore, direct democracy does not wash interest groups or factions out of the process. Thus, bringing more people into the decision-making process does not necessarily lead to the conclusion that the larger public good is being served. Interest groups play a rather significant role in both choosing what will be an initiative or a referendum and deciding how it will be framed. (18) They also frequently determine how the proposal will be explained to the public. (19) Unlike an election to choose a representative-which revolves around a candidate's character and stance on a variety of issues--the direct democracy process singles out one issue, which is introduced and sold to individual voters by interest groups, political parties, or both. (20)

   What is more, individual voters are poorly positioned to coordinate taxation and spending when they vote on issues one at a time and ultimately are not responsible for balancing the state budget. Initiatives tend to decrease state spending by shifting costs to local government. (21) And although some initiatives decrease taxes, initiatives are more likely to increase taxes and initiate more public services. (22)

   In sum, there are three principal concerns about the direct democracy process itself. The first concern is the...