Standing Up for Direct Democracy: Who Can Be Empowered Under Article III to Defend Initiatives in Federal Court?
32 Pages Posted: 9 May 2013 Last revised: 7 Mar 2022
Date Written: April 1, 2013
Abstract
This article analyzes whether and under what circumstances private citizens, especially those who qualify initiatives for the ballot by drafting the measures and gathering and presenting the requisite signatures (initiative proponents), should be permitted to defend those initiative in federal court, consistent with Article III of the federal Constitution, when elected representatives ordinarily to be relied upon to defend state laws decline to defend. Professor Amar’s analysis seeks to balance the legitimate instinct of federal courts to keep their assertions of jurisdiction within constitutional bounds, on the one hand, and the need for the people of states that want to make use of initiatives to find ways to prevent elected officials (a distrust of whom is often part of the motivation behind an initiative) from effectively killing initiatives by failing to defend in federal court, on the other. Drawing on the essential rationale underlying the initiative device and theoretical and pragmatic foundations of federal constitutional standing doctrine, Professor Amar argues that the key question in cases involving standing by initiative proponents is not, as the Supreme Court suggested in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), whether the people of a state have “control” over the proponents, but rather whether the people can be said to have “assented” to the proponents as representatives of the electorate. He thus concludes that the Supreme Court reached the right results in the Hollingsworth dispute, but for the wrong reasons.
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