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

See all articles by Vikram D. Amar

Vikram D. Amar

University of California, Davis - School of Law; University of Illinois College of Law

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.

Suggested Citation

Amar, Vikram D., Standing Up for Direct Democracy: Who Can Be Empowered Under Article III to Defend Initiatives in Federal Court? (April 1, 2013). UC Davis Legal Studies Research Paper No. 337, Available at SSRN: https://ssrn.com/abstract=2261893 or http://dx.doi.org/10.2139/ssrn.2261893

Vikram D. Amar (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

University of Illinois College of Law

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
81
Abstract Views
1,150
Rank
545,002
PlumX Metrics