The pursuit of 'popular intent': interpretive dilemmas in direct democracy.

• Author: Schacter, Jane S.

CONTENTS

1. INTRODUCTION

   108 II. AN OVERVIEW OF POPULAR LAWMAKING IN THE STATES

   112 III. JUDICIAL INTERPRETATION OF INITIATIVE STATUTES:

   AN ANALYSIS OF THE DECISIONS

   114

   1. Profile of the Decisions Studied

      114

      1. Search Criteria

         114

      2. Geographic Composition of the Decisions

         115

   2. The Interpretive Methodology Used by the Courts

      117

      1. The Primacy of Popular Intent

         117

      2. The Sources of Popular Intent: The Dominance of

         Formal Legal Sources

         119

         a. A Taxonomy of Sources

         119

         i. Formal Sources

         120

         ii. Informal Sources

         121

         b. The Frequency of Sources

         121 IV. READING THE MASS ELECTORATE: THE INTRACTABLE SEARCH FOR

         POPULAR INTENT

         123

   1. Introduction: Some Characteristic Problems of Intentionalism

      123

   2. The Boundaries of Popular Foresight

      126

   3. Drafter Intent and Phantom Popular Intent

      128

   4. The Paradox of the Inverted Informational Hierarchy:

      Mass Politics and Formal Law

      130

      1. Voters and the Media

         131

      2. Voters and Formal Interpretive Sources

         139

         a. Statutory Language

         139

         b. Formal Legal Texts

         140

         c. Official Ballot Pamphlets

         141

      3. The Unbridgeable Gap?

         144 V. BEYOND POPULAR INTENT

         147

   1. The Dilemma of Clashing Conceptions of Law

      147

   2. The Failure of Formalist Responses

      149

      1. The Strong Textualist Response: Forsaking Intentionalism?

         149

      2. The Rhetorical Formalist Response: The Virtues of

         the Judicial Wink?

         150

   3. A Different Approach: Courts, Candor, and Democracy

      152

      1. Informational Deficits: Interpretation and Deliberation

         155

      2. Informational Pathologies: Interpretation and Abuse of

         the Initiative Process

         156

      3. The New Interpretive Rules in Action: Problems and Prospects 159 VI. CONCLUSION: THE BROADER IMPLICATIONS OF THE STUDY

         164

         APPENDIX A: THE STATUTORY INITIATIVE IN THE STATES AND THE

         DISTRICT OF COLUMBIA

         168 APPENDIX B: THE DECISIONS STUDIED

         169

1. INTRODUCTION

   Direct democracy is on the rise.(1) While there is no federal initiative or referendum,(2) a majority of states allow at least some version of direct democracy.(3) Many state and local ballot measures have spawned divisive, high-profile campaigns about issues as volatile as gambling, gay rights, and gun control. The controversy surrounding ballot measures seems unlikely to abate with the prospect of a 1996 initiative in California that would eliminate affirmative action.(4)

   Many controversial, highly visible ballot measures have posed serious constitutional problems.(5) Perhaps for that reason, legal scholars concerned with the rise of direct democracy have focused almost exclusively on the constitutional questions surrounding popular lawmaking.(6) They have left largely unexamined the judicial interpretation of popularly enacted laws: how courts construe direct legislation when litigants contest statutory meaning rather than constitutionality.(7)

   This gap in the literature about direct legislation is both lamentable and surprising. It is lamentable because many popular ballot measures are found to be constitutional or are never challenged as unconstitutional. As these measures are applied and interpreted, they raise the same problems of ambiguity and prompt the same kinds of litigation over interpretation that are so familiar in the context of legislative law. This gap in the literature is surprising given that the last decade has produced so much new scholarship about statutory interpretation.(8) Scholars have called into question basic premises about traditional approaches to statutory interpretation and have proposed and debated many new approaches.9 None of this work has addressed the special--and increasingly significant--context of direct democracy.

   Direct democracy, moreover, can provide a revealing window on the study of statutory interpretation more generally. The search for a controlling legislative intent has traditionally framed the judicial interpretation of statutes. The viability of such "intentionalism"(10) has long been discredited by scholars and is sharply undermined by widespread contemporary skepticism about objective theories of meaning and about the pluralist political process from which statutes emerge.(11) Nevertheless, judges continue to deploy the language of legislative intent when they interpret statutory law--perhaps because they believe in the idea of intent, perhaps because they believe their legitimacy depends upon the appearance that they are vindicating the legislature's policy preferences and not their own.

   The case of direct democracy tests the limits of judicial willingness to deploy intentionalist methodology. There are reasons to suspect that a search for "popular intent" will be even more problematic than the traditional search for legislative intent. Consider, for example, the mass size of the electorate; the absence of legislative hearings, committee reports, or other recorded legislative history; and the inability of citizen lawmakers to deliberate about, or to amend, proposed ballot measures. In addition, voters are not professional lawmakers, so it is problematic to impute to the electorate the same knowledge about law, legal terminology, and legislative context that courts routinely ascribe--if sometimes only as aspiration--to legislators. These structural dynamics of the direct lawmaking process should further burden what is in any circumstance a problematic quest for the single intent underlying a law.

   In this Article, I explore the interpretive methodology used by courts in construing statutory law enacted through the initiative process. My point of departure is a set of fifty-three decisions I have collected that represents ten years of published decisions by the highest courts in the jurisdictions that permit voters to enact statutory law through the initiative. I use these decisions to explore empirical and normative questions about the interpretation of initiative laws.

   The decisions point to two empirical conclusions, one about the interpretive approach courts use and the other about the interpretive sources courts consult. In terms of approach, the courts studied widely invoke the same intentionalist principles that dominate conventional statutory construction, replacing the familiar search for legislative intent with an asserted search for the controlling popular intent. In terms of sources, the decisions reflect that courts rely heavily on formal interpretive sources, such as statutory text, language in related legislation, judicial opinions, canons, and, on occasion, ballot pamphlets or voter guides (used in lieu of legislative history). Conversely, courts widely ignore media and advertising as sources of popular intent even though, as I will explore in depth, social science research about voter behavior in ballot campaigns suggests that voters most regularly consult and seek guidance from these sources.

   These empirical findings provide the basis for the normative analysis that follows. I draw three principal conclusions. First, the popular intent behind an initiative statute is largely illusory and provides an unstable anchor for judicial interpretation. The popular-intent approach reproduces--and sometimes aggravates--many of the problems posed by the legislative-intent approach, and then raises significant new problems of its own. I explore, in particular, the ways in which the popular-intent approach fails to account for problems of severely limited popular foresight and for the ways in which the direct lawmaking process gives powerful leverage to initiative drafters, who are situated to construct a phantom popular intent through strategic drafting. Moreover, the decisions analyzed here, when read against the social science work about initiative campaigns, point to an interesting paradox that further suggests that popular intent cannot be ascertained: The hierarchy of interpretive sources courts employ inverts the informational hierarchy voters use in determining how to vote. This problem eludes easy solution because courts would create formidable new problems if, in the service of popular intent, they inverted their own interpretive hierarchy in order to track voter practices. All of this suggests that the pursuit of popular intent is doomed to fail.

   Second, the problems of popular intent suggest a deeper underlying issue, one that should frame attempts to rethink the interpretation of direct legislation. I argue that the interpretive dilemmas explored reflect a striking disjunction between two competing conceptions of law--one that I call "positivist" and one "popular." The tension between the two supplies a larger conceptual context in which to understand the problems of popular intent; it also helps to point toward a different approach to interpretation of direct legislation.

   More specifically, I argue that, rather than remaining wedded to intentionalist methodology, courts construing direct legislation should concede the limits of popular intent and develop alternative interpretive rules framed in light of some of the problems that characterize the direct lawmaking process. In calling for new interpretive principles of this kind, I apply and build upon what I have called in previous work a "metademocratic" approach to statutory construction.(12) The metademocratic approach acknowledges the inevitability of interpretive discretion and the centrality of the rules used to resolve ambiguity, focuses upon choosing interpretive rules that are self-consciously designed to address identified problems in the democratic process, and links democratic legitimacy not to a mythic brand of interpretive "restraint" but to the use of default principles designed to further a larger vision of democracy.(13) I argue that metademocratic rules applied in the context of popularly enacted laws can help to generate a less idealized picture of the direct lawmaking process than judicial rhetoric now suggests, can respond to some of the characteristic problems courts confront when trying to "read" the mass electorate, and can encourage other institutions to reform the initiative process.

   Third...