Taking State Constitutions Seriously

Abstract

Section I of this article briefly describes both the theoretical and historical origins of American direct democracy. Next, it completely categorizes the set of processes that together comprise the domain of direct democratic law making vehicles. These include both direct and indirect methods as well as mechanisms that provide for the modification of both statutory and constitutional law. Next, this section uses these classifications to describe current trends in citizen involved law-making.

Prior research demonstrates an overall increase in use of direct democratic processes. This article, however, breaks new ground as it uses nearly three decades of empirical data, collected specifically for this article, to demonstrate that where available, the Direct Constitutional Initiative (DCI) is rapidly becoming the process of choice for the participants in direct democracy. In other words, at least within the sixteen DCI states the direct democracy phenomenon should be best understood as constitutional in dimension.

To better understand the micro-foundations of this important empirical finding, Section II of the article reviews institutional rules of the relevant jurisdictions, comparatively considering the requirements for the proposal and ratification of direct constitutional and statutory changes. It finds that the institutional rules displayed in Direct Constitutional Initiative jurisdictions incentivize individuals and groups seeking a substantive policy change to select that approach.

Both the empirical findings and the analysis of the incentive structure motivate Section III where the article evaluates the increased use of the Direct Constitutional Initiative. The section begins by reviewing the legal literature that considers the judicial review of direct democracy. This literature finds that judicial officials may be unwilling or unable to police direct democracy and in particular constitutional direct democracy. Drawing upon a host of interdisciplinary scholarship, Section III then presents critiques of not only direct democracy but also its role in constitutional change. Namely, this extant literature cautions against unnecessary constitutional change and cementing temporal proposals.

Applying these lessons, this article does not directly consider substantive outputs of constitutional direct democracy. Instead, it focuses upon a set of procedural elements that would, at a minimum, both clearly demarcate constitutional and statutory change and help the Direct Constitutional Initiative embrace robustly supported institutional proposals. To do this, it surveys the nation for a set of best direct democratic practices that together may yield an optimal method of constitutional modification. In all, it seeks a process that takes state constitutions seriously and treats them as the supreme level of American state law.

Keywords: Direct Democracy, State Constitutions, Constitutional Economics, New Institutionalism, Election Law, Initiative, Federalism, Referenda, Judicial Review