Direct Democracy, Courts, and Majority Will
Election Law Journal
UVA Law Faculty Affiliations
This paper reviews Direct Democracy and the Courts by Ken Miller.
Voters in many states use ballot propositions to enact laws on everything from term limits and abortion to taxes and same-sex marriage. Many of these propositions test the boundaries of federal and state constitutional law. This pits the people, who support the propositions and who are sovereign, against the parchment, which derives authority from ratification by people who came before. Judges, some elected, mediate this conflict by interpreting vague constitutional language. These ingredients make judicial review of propositions explosive. The practice exposes fundamental tensions in American law, including conflicts over when minority rights should yield to majorities, the reach of judicial review, and the optimal level of judicial independence.
In Direct Democracy and the Courts, Ken Miller, a political scientist and lawyer at Claremont McKenna College, makes an important and impressive contribution to scholarship in this field. The book blends history, institutional analysis, case law, and comprehensive data to tell the story of propositions, courts, and the constitutions that bind them. Miller does not advance a theory but instead explores a theme: the relationship between the initiative process and the judiciary. Sometimes that relationship has been contentious, manifesting the conflict between popular sovereignty and the judiciary that has simmered since the founding. Other times the relationship has been harmonious. Miller describes the times, places, and manners in which that relationship has developed.
Michael D. Gilbert, Direct Democracy, Courts, and Majority Will (reviewing Kenneth P. Miller, Direct Democracy and the Courts) 9 Election Law Journal 211–214 (2010).