A Theory of Direct Legislation (Law and Society) (Law and Society)

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Law and Society Recent Scholarship

Edited by Melvin I. Urofsky

A Series from LFB Scholarly

This page intentionally left blank

A Theory of Direct Legislation

Harel Arnon

LFB Scholarly Publishing LLC New York 2008

Copyright © 2008 by LFB Scholarly Publishing LLC All rights reserved. Library of Congress Cataloging-in-Publication Data (Arnon, Harel, 1972A theory of direct legislation / Harel Arnon. p. cm. -- (Law and society) Includes bibliographical references and index. ISBN 978-1-59332-239-7 (alk. paper) 1. Referendum--United States. 2. Legislation--United States. 3. Representative government and representation--United States. 4. Law-Philosophy. I. Title. KF4881.A96 2007 342.73'041--dc22 2007038018

ISBN 9781593322397 Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

To Tami – my eshet chail, and to Ori, Talya, Yael, Eitan and Amitai with endless love


Table of Contents Acknowledgments ...................................................................................ix Introduction ..............................................................................................1 Chapter 1: Historical Origins in America............................................9 1. A Transformation in American Politics ...................................9 2. The Constitutionality of Initiatives...........................................13 Chapter 2: The Debate over Direct Legislation ...............................17 1. The Initiative Process .................................................................18 2. Process-Oriented Arguments In Favor of Initiatives............21 3. Process-Oriented Arguments Against Initiatives...................26 4. Content-Oriented Arguments In Favor of Initiatives...........31 5. Content-Oriented Arguments Against Initiatives..................32 6. An Interim Observation.............................................................33 Chapter 3: Toward a Legal Theory of Initiatives .............................35 1. Overview ......................................................................................35 2. Political Philosophy: Initiatives and Democracy....................37 3. The Uniqueness of Initiatives ...................................................48 4. Initiatives and Common Intuitions ..........................................53 5. Initiatives: The Case for Qualified Respect ............................55 vii

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Table of Contents

Chapter 4: Qualified Respect and Statutory Interpretation............61 1. The Meaning of Statutory Interpretation and the Role of Canons.......................................................................65 2. Interpreting Initiatives with Qualified Respect ......................72 Chapter 5: Qualified Respect and Judicial Review...........................99 1. Avoiding Post-Election Judicial Review................................105 2. Pre-Election Judicial Review ...................................................114 3. Rational Basis Review...............................................................139 Chapter 6: Qualified Respect in Action...........................................145 1. California’s Proposition 8 or How Hard Cases Make Bad Statutes...........................................................................145 2. Narrow Construction, Retroactive Legislation and Proposition 51 ......................................................................158 Chapter 7: Conclusions and Future Directions..............................167 Appendix: Contextualizing Qualified Respect................................171 1. Qualified Respect in Context: Interpretation .......................172 2. Qualified Respect in Context: Judicial Review .....................182 3. In Defense of Qualified Respect: Some Assessments ........189 Endnotes................................................................................................195 Bibliography ..........................................................................................275 Index.......................................................................................................287

ACKNOWLEDGMENTS

This book has benefited greatly from many individuals. I am particularly grateful to Richard D. Parker, Lewis D. Sargentich and Frederick Schauer of Harvard Law School who have read previous drafts and made invaluable comments. Damian Bona, Matthew Buchwald and Andrew LaCroix had carefully proofed the manuscript and improved it significantly. Notwithstanding, all errors remain, of course, mine. I also want to thank Harvard Law School staff members and in particular, Jeanne Tai and Nancy Pinn, whose help in so many ways was more than I have ever wished for.

ix


INTRODUCTION

In June of 1982, Californians adopted the Victims’ Bill of Rights, Initiative Measure Proposition 8, which was generally aimed at limiting the rights of criminal defendants. Among other things, it intended to change the insanity defense standard by granting it only to those who are “incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (emphasis added.) Several years after the passage of the measure, the Supreme Court of California faced a challenging interpretive dilemma related to Proposition 8. In People v. Skinner, the defendant appealed a conviction of the second degree murder of his wife for which he pleaded not guilty by reason of insanity. Both the trial court and the court of appeals found the defendant to be both sane and guilty, concluding that he failed to meet the standard since he fully understood the nature of his acts, notwithstanding the fact that he could not distinguish right from wrong. The Supreme Court now faced the question of how to read the initiative: it could interpret it literally and require Skinner to prove that he met both prongs of the insanity defense, that is, incapacity to understand the nature of his acts and inability to distinguish right from wrong; or it could choose to replace the word “and” by “or,” thus availing the defense to Skinner even if he could only prove one prong of the insanity standard, namely, inability to distinguish right from wrong. This latter reading clearly deviates from the plain text of the initiative but was more in line with the traditional insanity defense which was in place long before Proposition 8 and before Californians began feeling that rights of criminal defendants were being unjustly enlarged. 1

2

Introduction

The court chose the second alternative. It asserted that the conjunctive language in the initiative was a draftsman’s error and rectifying it was thus justifiable. Yet absent from the court’s reasoning was a consideration of if and how interpretation of initiatives differs from that of ordinary statutes. Moreover, asserting that the people voted on statutory language which did not reflect their true intention is different from proving that an error occurred in the drafting of an ordinary statute. Different evidential sources call for different legal doctrines. Yet the court did not seem to ponder these points. Instead, it treated Proposition 8 as if it were an ordinary statue and applied ordinary legal interpretive doctrines. We must reiterate what is at stake here and why I believe the Supreme Court of California in People v. Skinner, as well as most other courts in the country, erred in failing to distinguish between initiatives and ordinary statutes. Direct legislation is a tool that enables the people to legislate on their own, to become a “Fourth Branch of Government.”1 Thus, at a given moment we have a closed set of statutes that are not the product of the elected representatives. These statutes are unique in so many ways. First, they are, or at least they are perceived to be, a better approximation of the will of the people.2 As such, they arguably enjoy more authority and political legitimacy than statutes produced by elected representatives. Second, the process that produces them is invariably different than ordinary legislative process. There are no floor debates, committee reports, drafting sessions, competing versions or other features of the regular legislative process. Theories of statutory interpretation and judicial review often rely on assumptions about the legislative process that may not be true in the direct legislation context and, thus, such theories need to be reexamined. Third, since direct legislation constitutes a unique legislative norm and is an institution of great importance to our hybrid democracy,3 the law in general, and judicial treatment in particular, simply cannot afford to treat direct legislation as if it were ordinary legislation. The law must reflect the uniqueness of direct legislation, both as a political institution and as a source of legal norms. Failing to address the unique features of direct legislation is likely to create significant difficulties. What does it

Introduction

3

mean to speak of a “legislature” when interpreting initiatives? Or of “legislative intent“? Can canons of interpretation be applied to initiatives as if they were ordinary statutes? How should a statutory conflict between an initiative and an ordinary statute be resolved? Should courts exercise more restraint when they review initiatives? What should be the balance of powers between the judiciary and initiatives which represent the popular will? These are some of the questions and difficulties that we face when we realize that an initiative is not simply another statute. Yet if courts fail, as they often may, to develop a coherent theory of direct legislation, it will be hard to provide consistent answers to these doctrinal difficulties. As a result, legal values such as predictability and consistency are damaged. To complicate things, oftentimes courts do use rhetoric that suggests that initiatives are different and unique. But this rhetoric is almost never reflected in doctrine and normative bite. The purpose of this book is to present a coherent legal theory of direct legislation. A theory that attempts primarily to enhance the judiciary with legal tools that are premised on a coherent and well-justified conceptualization of direct legislation; a theory that is based on recasting the initiative institution and conceptualizing it as a unique legislative tool. I offer a conceptualization of direct legislation that makes better sense of existing legal doctrines and in light of democratic justifications but also molds direct legislation and improves it. It is both descriptive and prescriptive. It is descriptive by attempting to better fit and justify existing legal mechanisms and prevailing intuitions regarding initiatives, but it is also prescriptive by offering a critique of existing legal doctrines as well as making innovative normative suggestions. The main argument of this book is that initiatives are, or at least should be, perceived as a political tool for expressing the intense, yet concrete and specific, political will of the people. Initiatives are a legislative tool for regulating political issues that are a source for significant political dissatisfaction. They are a tool designed to address specific hot political topics that are either unhandled or mishandled by elected legislators and are not designed for overhauling legislative reforms. Based on this conception of direct legislation I propose a legal theory that I call

4

Introduction

Qualified Respect. Under this theory, initiatives should receive higher normative status within a minimized legal domain. That is, initiatives should be interpreted narrowly under an intentionalist approach to meet the minimum requirements of the people’s intent. However, within that limited scope, initiatives should enjoy greater normative force than ordinary legislation. This is my new conception of initiatives: to give them more weight within a specified, definite, statutory domain, which should more meaningfully reflect the underlying impulses of the initiative. I also offer concrete legal doctrines that advance this theory and I demonstrate their application in real cases. In short, I argue that the theory of Qualified Respect reflects respect for the people as the ultimate sovereign and treats initiatives in accordance with what they are best designed to accomplish, that is, the expression of the sovereign’s intense, noncomplex and well-targeted political will. Had the court in People v. Skinner approached the interpretive dilemma it faced equipped with a well grounded legal theory of initiatives, such as the theory of Qualified Respect, it might have carried out its interpretive investigation and reasoning differently. No doubt, it is hard to assess today what the voters intended in 1982. It is clear that Proposition 8 was intended to counter balance against what the people perceived as a lenient judiciary in the criminal context. Just how much tougher the voters intended the insanity test to be, however, is hard to ascertain. The court explored the ballot pamphlet, which was definitely an appropriate starting point, but to what extent the ballot pamphlet actually reflected the voters’ intent is unclear. The pamphlet was a relevant interpretive source but it should not have been the only one considered. The court should have looked into additional informal materials such as those related to the media campaign, polls, and statements from supporters and opponents of the proposition which could have provided greater guidance. When interpreting initiatives, where I argue voters’ intent should be the guiding star, resort to any helpful evidence should be welcomed. Moreover, if after analysis of all available sources of information, the court had still been in doubt with regard to the people’s true intent, it could have used the narrow construction rule of thumb. The argument directly flowing from the theory of

Introduction

5

Qualified Respect would have taken the following form: prior to Proposition 8 there existed a non-statutory insanity defense and the people clearly desired to eliminate part of the defense and decrease its scope. Proposition 8 attempted to do that, but to what extent was unclear. Qualified Respect suggests that in cases of real doubt narrow construction should be the rule. A reading of the statute that replaces the conjunction with the disjunction limits the proposition's scope and is therefore desirable. Had the court justified its resolution on these grounds the decision would have at least appeared more sound. Instead of finding clear voter intent where none existed, the court could have grounded its decision on a neutral interpretive canon which is more appropriate in the initiative context. The court, it seems, was more preoccupied with making sure Proposition 8 did not turn into a statutory monster than with reaching its resolution through appropriate reasoning. The initiative is one of several forms of direct democracy in the United States, along with the recall and the popular referendum. The initiative is the process by which the people introduce a proposition and vote on it at the ballot.4 The popular referendum is the procedure that allows the people to refer acts of their legislature for a vote.5 The recall is the procedure by which elected officials are removed from office before their terms expire.6 There are two kinds of initiative, direct and indirect.7 Direct initiatives are proposed by citizens and, once they meet certain legal requirements, are submitted to the people for their approval. Indirect initiatives are proposed by the people but are submitted to the legislature for review. The legislature can adopt a proposition and route it into its own legislative channels or it can reject it. In the latter case, the proposition may then be sent to the ballot for a popular vote.8 Initiatives can be used to enact statutes as well pass constitutional amendments. All, or some, of these processes are available in some of the states but none are available at the federal level. Initiatives, along with the recall and the referendum, have been around for over a century. Between 1898 and 1918, over 20 states have adopted some form of direct legislation and five other states have done so between 1956 and 1992.9 These legislative reforms had immediate political impact as the early years following the

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Introduction

introduction of initiatives witnessed the submission to ballot of a great number of initiatives. In the second decade of the 20th century, 293 initiatives were submitted to ballot throughout the country, a record high not broken until the 1990’s.10 However, World War I marked a decline in the popularity of the new legislative tool. Indeed, during the 1940’s, there were less than 200 initiatives nationwide, during the 1950’s 114, and in the 1960’s only 87. But during the late 1970’s, the use of initiatives revived. This trend intensified in the 1980’s and in the last decade of the 20th century, America was flooded with 379 initiatives nationwide, an all-time record high.11 With political disenchantment and cynicism growing in the U.S., it seems unlikely that this trend will be reversed any time soon.12 Clearly, the political phenomenon of direct legislation calls for academic investigation. Scholars in the first two decades of the 20th century devoted some resources to investigate and research various aspects of this novel political tool. Later, as the popularity of direct democracy declined so did academic interest. Recently, however, with the rising popularity of initiatives more scholars have taken an interest in direct democracy. Several recent scholarly researches and books have focused on the various aspects of direct democracy in general and on the initiative process in particular. Notably, a lively debate over the merits of direct legislation has captured significant attention in academic literature as well as in the popular media, which, together with the number of recent books devoted to this debate, serves as evidence of a growing interest in direct legislation.13 Generally, legal scholars who address direct legislation can be divided into two schools. The majority of scholars argue that initiatives should be given unique legal treatment. However, this position is almost always derived from a sense of pessimism regarding direct legislation. Direct legislation is seen as a necessary evil: necessary, because the majority of Americans desire it and because many state constitutions offer it; evil, because it poses a threat to certain democratic values and ideals. Consequently, these scholars usually call for harsher judicial review standards in the treatment of initiatives. Other scholars who hold a more favorable view of direct legislation call for non-differential treatment of direct

Introduction

7

legislation. Their attitude is usually premised on the argument that, although imperfect, direct legislation's shares flaws are similar to those of ordinary legislation. I argue that both approaches either miss the point or are incomplete. They overlook the fact that initiatives are a central and unique institution to America’s democracy and that, despite the fact that initiatives suffer from some flaws, they also provide substantial benefits. However, they are also narrow in their application, because they are usually focused on specific or localized issues and are not grounded, at least not explicitly, on a comprehensive legal theory of initiatives that prescribes normative standards which could resolve a wide array of thorny difficulties. What seems to be missing is a tight legal theory premised on a conceptualization of initiatives, as such, that can organize the area of initiative law and offer normative prescriptions; a theory that would justify some of the existing practices, reject others, and create new ones. This book attempts to fill that gap. In Chapters 1 and 2, I offer an historical account of initiatives in the United States and present the scholarly debate over the merits of initiatives. This historical account is intended to familiarize the reader with the sociological roots of initiatives. The lively debate over initiatives has usually been among political scientists who have traditionally devoted substantial scholarly resources to the analysis and research of the initiative institution. Yet, their conclusions differ and are sometimes incompatible. The purpose of presenting this debate is to throw the initiative process into relief through a close examination of the opposing and various arguments. This presentation will also serve as a springboard for the case for my theory of initiatives. In Chapter 3, I present a legal theory of initiatives in the form of a step-by-step analysis that culminates in the presentation of a concept that I call “Qualified Respect.” This theory is based on a specific conceptualization of initiatives that I develop by grounding the theory in democratic justifications, in existing legal practices and in prevailing intuitions and perceptions. I argue further that the theory puts direct legislation into a coherent framework that best fits the legal topography of direct legislation.

8

Introduction

Chapters 4 and 5 present the ramifications of the theory with regard to various legal doctrines. In Chapter 4, I focus on statutory interpretation and in Chapter 5 I target judicial review. Chapter 6 promotes examples of the real life application of the theory and it offers a critical analysis of case law. In the final chapter of this book, I will draw some conclusions and offer further insights and possible directions for future work on initiatives. Finally, in an appendix I contrast the theory of Qualified Respect with existing academic attempts to address initiatives, as such, in order to underscore the strengths of the theory of Qualified Respect. Throughout this work I use the terms “initiatives,” “direct legislation” or “popular lawmaking” interchangeably and they all refer to legislation enacted entirely by the people. “Ordinary legislation,” “indirect legislation” or “representative legislation” will refer to legislation carried out by state legislatures. When I use the term “proposition,” I refer to an initiative draft prior to elections, while the term “initiative” refers to a proposition that has already been approved by ballot.

CHAPTER 1:

HISTORICAL ORIGINS IN AMERICA

1.

A TRANSFORMATION IN AMERICAN POLITICS 1

While the roots of direct democracy in America go back to the 17th century, as exemplified by town meetings in the early New England Colonies, the manifestations of direct democracy as we know them today (that is, specifically, the initiative, referendum and recall), are the result of political reforms during the Progressive Era that span the end of the 19th to the beginning of the 20th centuries. The alteration of modern direct democracy and its adaptation into American state politics was primarily a result of social change. This reformation was the outcome of political dissatisfaction driven by rapid social and economic change.2 American society was rapidly transforming. It was changing from a simple economy based on agriculture to an economy of complex structure, involving large and ever growing industrial corporations. The industrial age in the United States redefined American society almost completely. The growth of industrial giants and business trusts replaced the old agricultural and rural order with a new urban/industrial order in which the conditions of economic existence became ever more complex and difficult, especially for farmers. This complex economic growth served to increase economic disparity, which in turn created political inequality.3 These changes contributed to the formation of a coalition of various social and political groups characterized by suspicion of the 9

10


changing social order and the fear that that the new industrial interests posed an immediate threat to the ordinary citizen. The democratic American political system provided a natural outlet to disenfranchised farmers to petition the government for their grievances while enmeshed in this desperate struggle for survival. Unfortunately, the traditional legislature had long since been subsumed in the confines of corporate hegemony: the very element that had stripped the farmers of their livelihoods and dignity sat with hands comfortably resting on the reins of power turning a deaf ear to the farmers’ plight. Thus, having been ground under by political stagnancy and direct opposition, these soil-tillers were forced to band together in order to create a new political machine, a new party that reflected their genuine interests and concerns, and one that would not unilaterally bow to the whims of industrialists or carpetbaggers. 4 Essentially, the end of the 19th century marked the awakening of the American citizenry to the evident flaws and widespread corruption in the representative system. The narrow-minded, power-hungry interest groups, the irresponsible manner in which pork laden bills were passed, either in the last minute of legislative session or without substantial consideration and deliberation, and the powerful party bosses who controlled their party members’ voting patterns all played a crucial role in the political dissatisfaction of the time.5 Around 1885, Father R. W. Haire, a South Dakota priest and labor activist, proposed a political reform in his state that would move it toward a more direct form of democratic government. Though his proposal failed, it marks the early rise of America’s interest in direct democracy. Five years later, in 1892, J. W. Sullivan, a political activist from New York, published a book titled: “Direct Legislation by the Citizenship through the Initiative and Referendum.” This book was the result of a visit to Switzerland during which he observed and studied the mechanisms of direct legislation up close. In Sullivan’s eyes, democracy was nothing if it was not direct democracy.6 He doubted the legitimacy of democracy in the United States: representative government was merely a form of “quasi-oligarchies,” if not worse.7 Pure democracy, he claimed,

Historical Origins in America

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could only be achieved through initiatives and referendums.8 From this basis he called for a radical reform that he called a “peaceful revolution” which called for representative government to be completely abolished and replaced by direct democracy.9 The book, published by Sullivan himself, sold between 10,000 and 15,000 copies each year between 1892 and 1895, and was, perhaps, the most influential literary work advocating direct democracy in the United States at that time.10 In 1894, Sullivan began publishing a periodical, titled “Direct Legislation Record,” that advocated direct legislation.11 The objective was to raise nationwide interest in direct democracy. Sullivan’s book and his other efforts captured the interest of activists all over the nation, and followers in various states began to actively promote the idea of initiatives and referendums in their respective states.12 In that year and the following one, groups promoting direct legislation were formed in South Dakota, Oregon, Kansas, Michigan, Nebraska, Washington and Colorado.13 It should be noted, however, that, unlike Sullivan, most political activists and later progressives, did not view initiatives and referendums as a replacement for the contemporary representative system. Instead, they viewed them as a supplement that would be needed in order to overcome some of the flaws within the system of representative government.14 It is also fair to assume that many of them had other, perhaps selfish, interests in promoting direct democracy. Nevertheless, even if these political activists were no angels, and even if they sometimes tended to over-exaggerate the flaws of current politics, there is no doubt that they were also motivated by a genuine will to improve the political system.15 In 1898, South Dakota was the first state to incorporate initiatives and referendums as part of its constitution.16 Oregon was the third state to adopt initiatives and referendums in 1902.17 The people of Oregon made history when they passed the first two initiatives in America in 1904, only two years after the adoption of the initiative process into their state constitution.18 The apparent success of the process in Oregon opened the door for other states which became convinced that direct democracy could work for them as well. Within 14 years, 17 states had adopted the initiative process, while several others only

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permitted referendums.19 The introduction of this new legislative mechanism was met with some hesitation at first, with only 56 initiatives being sent to ballot in the first decade of the 20th century.20 But, despite this slow start, it did not take long before direct democracy caught on. Between 1910 and 1920, 293 initiatives were sent to ballot nationwide, 90 of them in 1914 alone.21 Some of these initiatives led to tremendous political reforms such as presidential primaries, direct election of United States senators, and recall procedures. Indeed, the Progressive Party gained substantial political power which it used to champion direct democracy across the nation.22 Use of initiatives became quite popular in the first two decades of the 20th century until World War I, which naturally diminished the impetus popularly felt for internal political change, as a result of which the use of initiatives drastically declined. Following the Great War, the use of initiatives rose again and resulted in 172 initiatives in the 1920’s nationwide. Up until World War II there was a gradual increase in the use of initiatives, with 269 initiatives sent to ballot nationwide in the 1930’s.23 But World War II marked a turning point in the use of initiatives with only 159 initiatives nationwide during the 1940’s, a substantial decrease, 127 in the 1950’s and a grand total of 98 initiatives for the entire decade of the 1960’s.24 It was the 1970’s that marked the second rise in popularity of the initiative. Over 170 initiatives were sent to ballot in the 1970’s, over 240 in the 1980’s, and a record high of 379 in the 1990’s.25 Two events, both occurring in California, are deemed by scholars to be important milestones in the revival of direct democracy in general and initiatives in particular. These were the failed “Recall Reagan” campaign of 1968 and the approval of Proposition 13 in 1978, the California initiative that proposed cutting property tax by more than half.26 Also, some argue that the Vietnam War and the Watergate scandal greatly contributed to public distrust of elected representatives, which, in turn, made direct democracy seem more appealing to the average voter.27 Between 1976 and 1992 some 495 initiatives appeared on state ballots nationwide.28 (For the sake of comparison, in the 17 years following the first initiatives in Oregon in 1904, only 357 initiatives were voted on.29) It is reasonable to


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conclude that we are witnessing the rise of an era for popular democracy.30 The issue of direct legislation at the state level is often raised during the election campaigns of state politicians and some states that do not currently have direct democracy have recently considered measures for its adoption.31 In 1977, a joint resolution for a national initiative was introduced before the Senate.32 It faced strong opposition and was not enacted, nor was it even close to being enacted; it is unlikely that a national initiative or referendum procedures will be adopted in the foreseeable future.33 Nevertheless, the fact that there are proposals for national initiatives on the Congress’s legislative agenda (there has been a slow but steady flow of national initiative resolutions to Congress) reflects best, I think, the status that direct democracy has been able to maintain in its 100 years of existence in American politics.34

2.

THE CONSTITUTIONALITY OF INITIATIVES

The first state supreme court to consider the constitutionality of direct legislation was the Supreme Court of Oregon in Kadderly v. City of Oregon (“Kadderly”) in 1903.35 The court considered whether the constitutional amendment instituting initiatives and referendums in Oregon, adopted in the previous year, was in conflict with the Guarantee Clause. The court confronted the challenge and concluded that it was not. In the next two decades, as more states adopted direct legislation, and attacks on the new political device were rejected by state courts, Kadderly was often cited and its rationale adopted.36 The U.S. Supreme Court first addressed challenges against initiatives in 1912 in Pacific States Telephone & Telegraph Company v. Oregon37 (“Pacific States”) where the court was called to review a decision of the Oregon Supreme Court.38 Pacific States, an Oregon corporation challenged a tax levied on it, arguing, inter alia, that the statute levying the tax was invalid since it was adopted via initiative, and since state adoption of initiatives and referendums violated the right to a republican form of government, as guaranteed in Section 4, Article 4, of the Constitution (“the Guarantee Clause.”)39 The court clearly posited the potential conflict between the Guarantee

14


Clause and direct legislation, yet refused to decide the case on the merits.40 Justice White considered the implications of accepting the republican challenge against direct legislation and made the assertion that if it were sustained, it would mean the nullity of all legislation of the State of Oregon from the time it instituted direct legislation. Justice White maintained that if direct legislation were indeed non-republican, it would mean that by adopting direct legislation, the state, as a whole, could not maintain its character as a republican form of government and, as such, would cease to exist as legal state within the federation. As a result of this line of thought, none of Oregon’s legislation, from the moment it instituted initiatives onwards, would have been valid which would have led to inconceivable outcomes.41 In the end, however, the court declared the issue to be “political and governmental” and outside its jurisdiction. The court distinguished between “judicial authority over justiciable controversies and legislative power” and “purely political questions.” While the court’s role is to “enforce and uphold the applicable provisions of the constitution as to each and every exercise of governmental power,” it is a legislative duty, not judicial responsibility, to determine “whether a state government republican in form exists.”42 As a result, the tax statute enacted through initiative was not invalidated. Pacific States was taken by many to be decisive in the question of the constitutionality of direct democracy even if it never reached a conclusion as to the question of the constitutionality of initiatives.43 In fact, never has a claim asserting the unconstitutionality of direct democracy or initiatives ever been accepted in any American court.44 Thus, the question of the Guarantee Clause in relation to direct legislation seems to be settled in all state jurisdictions.45 Despite the historical pedigree of direct legislation, political scientists in general do not regard direct democracy as necessarily meritorious, or even desirable. In fact, direct democracy and the tools thereof have from the outset sparked an ongoing debate as to Opponents and their worth and potential ramifications.46 advocates of direct democracy both present sound arguments; it is my belief that, ultimately, evaluating initiatives is a matter of preconceived values and attitudes. That said, in order to better


15

present my theory of initiatives, it is necessary to make the reader better acquainted with the main arguments made in the debate over direct legislation. To do so, it is also necessary to gain a deeper understanding of the mechanics of the process. I will turn to this task in the next chapter.


CHAPTER 2:

THE DEBATE OVER DIRECT LEGISLATION

In developing a legal theory of direct legislation, it is necessary to build on the work of political theorists in order to make a broader assessment of the initiative process, a difficult task for a jurist, as political scientists are in disagreement regarding the worth of direct legislation. My task is to develop a coherent legal theory that takes into account the doubts and questions raised in scholarly works while at the same time addressing the advantages of the institution. In a way, my goal is to offer a theory that is not grounded in any one-sided view of direct legislation, but is instead a synthesis of the prevailing perceptions of initiatives. In order to do that I must first present the existing academic debate over direct legislation, which will enhance our understanding of the initiative process and will allow us to better grasp what is at stake. From the emergence of popular lawmaking in the United States up until today, the debate over the merits and demerits of direct democracy in general and popular lawmaking in particular has not faded. Recent years have witnessed an increase in the amount of literature devoted to the analysis and evaluation of direct democracy and direct legislation.1 The result of this is that the fundamentals of this debate have already been spun in their various permutations. Thus, my purpose here is to examine the intricacies and deficiencies inherent in these arguments and their counter-arguments and in doing so provide a cogent evaluation of 17


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their representations and assumptions concerning direct legislation. However, before we outline the debate, a brief description of the initiative process and its mechanisms is necessary.

1.

THE INITIATIVE PROCESS2

14 states and the District of Columbia allow for direct initiatives, that is, submission of proposed statutes to the ballot for a popular vote without any intervention of the state legislature.3 Seven states allow for indirect initiatives only, that is, initiatives that must be submitted to the state legislature for consideration before they can be placed on the ballot for a vote.4 In these states, if the legislature rejects the propositions, they must be placed on the ballot for a vote. Thus, in 22 United States jurisdictions the people can enact statutes without substantial interference by their elected officials.5 Even if the process among the several states is somewhat different, the overall scheme is quite the same.6 The first step in the initiative process is to file a draft of an initiative, a proposition, for the review of the state’s designated officer.7 In most cases it is the state’s Attorney General, Lieutenant Governor or Secretary of State.8 The reviewing capacity of the officer differs from state to state, and is defined by the state’s constitution or concerning statutes. The application should be signed by a quorum of citizens ranging from five in Montana to one hundred in Wyoming. Several states also require a submission of deposit money (the most being 500 dollars in Wyoming and Mississippi). This review is either for proper form, language, content or constitutionality.9 In Washington, D.C., for example, the review powers are granted to the Board of Election and Ethics that, in addition to its role of technical review, is charged with determining whether the proposition complies with the District’s Charter or the Human Rights Act.10 In Massachusetts, the state’s law limits the subject matter of any proposed initiative and grants the Attorney General the power to block the circulation of a proposition that seeks to regulate excluded subject matter.11 In most other states, though, this hurdle is quite technical and the officers’ reviewing authority is more limited.12 In fact, in all but four jurisdictions, the review is advisory only and the initiative cannot actually be blocked.13

The Debate over Direct Legislation

19

In some states, there are statutes providing for conferences between the proposition’s initiators and state officers in order to review the proposal and evaluate problems in drafting. Some states also require proposal sponsors to prepare cost estimates of their proposition, in some instances together with an identified budgetary source.14 In addition to its reviewing capacity, the state officer, in most cases, names the proposition and prepares a summary of the proposal and, in any event, must approve it. The title and summary are circulated along with the proposal for signature collection, and as a result have significant effects on the success of the initiative as they help shape public perception of the proposition. In some cases, these are the official title and summary the initiative will ultimately carry to the ballot. In other cases, an official title and summary are authored after the signature collection process has ended and the initiative is ready to be placed on the ballot. This is the only point in the initiative process where a proposition is supplemented with formal state material. Since a state official authors a proposal’s title and summary, or at least directly approves it, scholars tend to treat these documents as the primary interpretive sources of initiative laws, since they are seen as authentic pieces of legislative history, somewhat resembling “committee reports” in the context of ordinary lawmaking.15 Once the reviewing officer approves the proposal it is printed and its sponsors begin circulating it and collecting signatures.16 In order for a proposition to be actually placed on the ballot, a specified number of signatures must be collected, with the exact number of signatures required for an initiative to qualify varying from state to state, but equal to a predetermined percentage of the respective state’s electorate. This number ranges between two percent of the residents (North Dakota) to 15 percent of the qualified voters in the last general election (Wyoming).17 Some states also require some geographic distribution of the signatures.18 The process of signature collection is often time constrained, usually between 90 days to two years.19 At the end of the circulation process, the signed petitions are submitted to the state’s designated officer for review and verification, which also must be concluded within a specified time.20 An important feature of the

20


process is a ban on amending the proposition once it is in circulation. To amend it, in most states, its proponents must restart the entire process with the amended proposition.21 Once a measure qualifies for the ballot it is voted on in the next general election held in the respective state or in some cases in a special election called exclusively for the particular initiative.22 Most states distribute an information pamphlet describing the proposed initiatives, in varying degrees of elaboration. Several jurisdictions disseminate initiatives information via other means, such as through the popular media. A typical voter pamphlet will include the full text of the initiative, its title and summary, a purportedly impartial analysis prepared by state officials as well as arguments for and against the initiative.23 In almost all jurisdictions, a simple majority is enough to get the initiative approved.24 In some jurisdictions, however, a simple majority is sufficient only if the votes cast on the initiative are equal to a specified percentage of the votes cast in the elections concurrently held. Some states also require a special majority for initiatives dealing with specific issues such as gambling and the taking of wildlife.25 State governors have no veto power over affirmed initiatives.26 Depending on the state, affirmed initiatives may come into effect on various dates. Some states allow this question to be settled by the initiative itself; in others, the effective date ranges from immediately upon approval to 90 days after the date of the ballot.27 There are various restrictions regarding the initiative process. The single-subject rule, in place in most jurisdictions, bans initiatives that deal with more than one issue.28 Many jurisdictions ban initiatives that attempt to regulate what the legislature itself could not have legislated.29 Almost all states have some subject matter restrictions on the contents of an initiative.30 Thus, there are jurisdictions banning specific changes to the judicial system, others ban changes to the initiative process itself, while some restrict legislation affecting several basic freedoms and others restrict tax legislation.31 The obvious differences between the initiative process and ordinary legislation provide the grounds for various arguments regarding direct legislation. In the presentation below, I will


21

condense the different variants and versions of what I find to be essentially the same or closely related arguments.32 I will also summarize the various responses and counter-arguments. This discussion draws on the works of leading scholars on the topic and merely attempts to organize the arguments in a convenient way. Accordingly, arguments for and against initiatives can be divided into two categories. There are arguments that are process-oriented in the sense that they target the procedures of the initiative process. There are also content-oriented arguments that focus on the product of the initiative rather than on the legislative process that delivered it. It is important to keep this distinction in mind because, as I will argue when I develop my own theory, I believe that only process-oriented arguments should be considered in making the case for or against direct legislation. I shall start with arguments favoring initiatives first.

2.

PROCESS-ORIENTED ARGUMENTS IN FAVOR OF INITIATIVES

Process-oriented arguments in favor of initiatives highlight the inherent advantages of the initiative process rather than its product. Accordingly, they are less concerned with the subject matter of different initiatives, but instead the value inherent in procedural features of direct legislation, as such. Direct Legislation Increases Self Rule - Direct legislation allows the people to best exercise their sovereign autonomy, or self rule, the most fundamental principle of democracy. Self governance in a polity means decision-making based on majority rule, thus, had it been technically possible, all policies would have been decided and shaped by the people directly by ballot. However, the size and structure of modern democracy does not allow for direct self governance, hence the need for representative government. Even where the validity of representative institutions is not called into question, the claim that the main responsibility of representative government is to represent, that is, always to act in the interests of the people, still persists.33 Elected representatives may sometimes fail to accomplish their duty of acting in the interests of their constituents, hence the need for a mechanism that serves as a

22


balance to their power. Such a mechanism must allow the people to sound their voices clearly and to shape public policies. This is what direct democracy in general and direct legislation in particular is all about. It enables the people to voice their concerns more clearly, to enhance their political satisfaction and to balance their own power against that of a minority of citizens who are their elected representatives.34 Under this argument, direct legislation is not a substitute for ordinary legislation.35 It is impossible, and many argue undesired, to dismantle representative democracy altogether and to have the people legislate all issues directly. But the idea of having an additional political tool, one that will not be exercised in lieu of ordinary legislation, is widely considered to be desirable. Direct legislation contributes to the political satisfaction of the people since it allows them to make change to the laws that are in accordance with their authentic political preferences. It diminishes the power of political parties which often serve as an obstacle in the implementation the people’s will. Whether self rule is desired as such, or whether it is seen as a means for achieving political satisfaction and stability, the main idea is that direct legislation simply allows the people to have more control over their lives as citizens and human beings.36 In the next section, I criticize numerous arguments against direct legislation which target voters’ competence and their ability to legislate rationally. I believe these arguments underestimate voters’ ability to make intelligent choices. While it is true that legislators have more time and resources to devote to legislation than most citizens, that not all citizens are well educated and that not everyone casts his or her ballot rationally, the fact remains that the people are sovereign and they should be the ones to make all political decisions. The right to self government is the fundamentally most important tenet of democracy; the same principle that supports the right of the people to elect their own representatives supports the right of the people to legislate directly by initiative.37 Legislators do not always make rational decisions. They are not always familiar with the bills they pass and they often count on party leaders to make their choices for them. All by itself, that does not render representative institutions illegitimate. In a


23

similar vein, it is likely that some voters will not make the best educated and rational decisions when voting on an initiative. It is likely that some voters will evaluate propositions by mediating their decision-making through the media, public officials or political parties.38 Hence, voters are likely to vote on an initiative even without careful analysis since they will count on proxies to do the thinking for them. But this tendency is prevalent in indirect legislation too. It should not be used as a criticism against direct legislation, but instead be seen as an inescapable phenomenon of modern legislation, whatever form it takes.39 Even if we accept the claim that representative democracy is not a compromise with true democracy and even if we concede that modern legislation requires full-time, fully devoted professionals, i.e., elected legislators, there are still some political issues that the people may better decide for themselves. Not all legislation is technical and complex and not all legislation demands expertise and vast resources. Many issues involve policy preferences regarding values and morality and in such a case it is unjustified to assume that elected representatives are in any better position to make choices than the people themselves.40 Some areas in political decision-making are not governed by complex statutes and technical concepts: they are governed by moral principles and value preferences. On democratic grounds, it is not easy to justify barring the people from legislating affirmative action, abortion rights and bilingual issues. In these areas, direct legislation may be more appropriate than elsewhere.41 Another response to those arguments that say the people are incompetent to make their own political decisions has to do with the fact that initiatives are usually drafted by hired professionals and not by inexperienced people. Moreover, the fact that once an initiative has been circulated it cannot be amended without restarting the qualification process all over again guarantees that initiative sponsors will circulate a carefully drafted product. The implications of a sloppy initiative are too significant to be disregarded by an initiative’s sponsors. A sloppy initiative could undermine the purpose of the initiative altogether, it could confuse voters, it could attract criticism and it could be litigated and invalidated by the judiciary. In fact, this incentive against sloppy

24


drafting is absent in the ordinary legislative process where no personal funds are involved and where possible subsequent amendments create a greater risk of careless drafting on the part of a bill’s proponents.42 Direct Legislation Strengthens Democracy and Representative Institutions – Some proponents of direct democracy claim that it strengthens representative institutions, contributes to the stability of democracy and promotes equality. Where political dissatisfaction finds effective political means for self expression, where political frustration can be harnessed to political action that can effectively be taken by anyone, there is a greater potential for maintaining political faith in democracy as a whole. The ability of voters to act instead of complain, their ability to bring about change rather than suffer political harm, may serve as a safety valve which is likely to produce more tolerance and less alienation among voters toward the shortcomings and impotency of their elected representatives.43 Direct Legislation Overcomes Some of the Inherent Flaws of Ordinary Legislation - The legislative process is often performed by the few and is thus prone to several deficiencies. One or two legislators proposing a bill, a committee that holds hearings attended by only a fraction of the house members, floor voting in accordance with the party line and rushed legislation during closing sessions are all common characteristics of modern legislation. Legislation is rarely given the amount of open vibrant deliberation we would like to think it ideally enjoys. In contrast, direct legislation affords the public greater awareness of the proposed legislation, endless avenues for political and public discourse, and evaluation and voting by many. Moreover, the initiative process, despite its usual time constraints can never be initiated and completed within several days. There is no risk of passing a quick unnoticed proposition. The process is inherently open and time consuming. Thus, direct legislation is closer to the ideal image of legislation as we would like it to be.44 In addition, because ordinary legislation is often controlled by very few legislators, the process is made more prone to improper outside influence. Where the passing, or the blocking, of a bill is dependent upon just a few politically powerful individuals and where the process offers numerous vetogates, the ability of outside


25

special interest groups, wealthy individuals or corporations to influence the legislative process is greater. In ordinary legislation, all that is needed in order to block a bill is a single committee chairman who is willing to bury a bill at the bottom of his committee’s agenda, on the theory that such a tactic is of greater use than direct confrontation with the bill on its merits. In direct legislation, there are fewer weak links likely to become the target of improper influence. The initiative process is always public and any attempts to unduly influence the outcome require greater political energy and resources. Thus, it is less likely that special interest groups or powerful individuals and groups will employ corrupt means to unduly influence a direct legislative outcome.45 Direct Legislation Increases Democratic Participation in General Assuming that initiatives that are placed on the ballot are typically on issues the voters intensely care about, it is likely that more voters who did not originally plan on showing up to cast their vote in a regular election will now have an additional incentive to do so. Since initiatives are almost never placed on the ballot alone, it is likely that they will lead to a higher voter turnout than would have been the case if a general election did not involve any initiatives.46 Initiatives on the ballot draw more voters to vote which means more voters voting in the general elections as well. Indeed, one of the several explanations given to the high voter turnout in the 2004 presidential elections was the fact that some hotly debated initiatives were placed on the ballots of states all across the country.47 Higher voter turnout in general elections mean a stronger and more stable democracy.48 Direct Legislation Helps Put Legislators Back in Focus - By initiating direct legislation the voters can signal their political representatives and institutions of their political preferences and priorities. Legislators often have the option of endorsing an initiative or of transforming it into a regular bill thereby making the rest of the initiative campaign unnecessary altogether. In this connection, even if the people try and fail to place a measure on the ballot, or even if they reject it on election day, they still send their representatives a strong message, simply by mobilizing political action. Whatever the legislature’s reaction may be, whether or not it decides to transform an initiative into a bill of its own, the

26


opportunity for the electorate to engage in political discourse with the representatives is much to be desired.49 Direct Legislation Enhances Civic Participation and Education – Direct legislation forces the citizenry to become politically engaged. Simply put, the initiative process forces the voters to confront issues that they would not otherwise have confronted. Placing the responsibility for legislation upon the voters requires the people to invest thought and effort when considering the various political issues related to a given proposition. The process demands that they learn to pay attention to explicit, as well as implicit, details and intricacies inherent to legislation. They not only need to consider the immediate effects of the proposed initiative but its long term impact as well. The result should be a more educated and politically participative citizenry.50 Direct Legislation Finalizes Political Controversies – When political issues occupy legislatures for too long, direct legislation allows the people to step in and have their say, making it more likely the political controversy will be settled.51 In some states, for example, the legislature cannot immediately amend or repeal an approved initiative.52 Additionally, in some states, a failed proposition cannot be resubmitted immediately for ballot – there is a mandatory cooling off period before it can be introduced to the public again.53 Thus, to a certain extent, the submission of a proposition to the general electorate serves as the final word in a political controversy.

3.

PROCESS-ORIENTED ARGUMENTS AGAINST INITIATIVES

There are strong arguments against initiatives that focus on the procedural drawbacks of direct legislation. The proponents of representative government claim it is not a compromise with democracy and is not inferior to the classic, romantic, town-hall conception of government. Representative institutions are valued in and of themselves, not merely out of practical necessity, because it is impractical to assess the people’s will when it comes to any given matter. From this point of view, democracy is about delegation of the people’s sovereign powers to an elected few, at least as much as it is about direct self-government. This is so, it is


27

claimed, because there are inherent features of the representative legislative process that make it the preferred legislative model for a modern democracy.54 Legislation Requires Fully Devoted and Expert Legislators – Modern legislation is very complex and it demands certain skills, careful draftsmanship, significant amounts of expertise and experience, technical competence, etc. In short, modern legislation requires tremendous resources and effort, needs which are best answered by a professional, fully engaged legislative body. Professional legislators possess, or can at least efficiently gather, the information necessary to legislate prudently. Legislators have research aides and professional staff who are all part of the experienced legislative team. Many of them are repeat players in the legislative arena who are likely to produce better legislation than ordinary people who, by contrast, are too busy with their own lives and are less capable of devoting serious and careful consideration to proposed legislation. Thus, it is argued, it would not be desirable to substitute for the professional skills of the few the mediocrity of the many.55 Further to this argument, even if, as is probably the case with most legislatures, modern political representatives do not fulfill their task optimally, they are still more fit for the legislative task than ordinary people and it is plausible to assume that elected legislators, notwithstanding their obvious shortcomings, are likely to expend more in resources and effort upon legislation than ordinary voters.56 Ordinary Legislation is a Product of Deliberation – The legislative context allows for real, face-to-face deliberation that is absent in the initiative context. Ordinary legislation normally is conducted in the halls of government where legislators have the opportunity to personally meet and discuss the bills. In contrast, direct legislation does not usually allow for such in person deliberation. When legislators meet on a regular basis, when they exchange ideas and observations there is likelihood that they will thereby produce better legislation. First, they are more likely to minimize legislative errors and flaws. By mutual engagement and ongoing discourse, by hearing experts and different legislative opinions, the legislators have enhanced opportunities of producing better legislation.57 Second, they have the enhanced opportunity to change and perfect

28


the bill before it is actually sent to the floor for a vote. In fact, almost never is a statute identical to the initial bill that it originated from. The amendment process in committee hearings and floor debates contributes to perfecting the end result. It allows legislators to correct themselves and make sure that the final bill is the best product they can produce. Such a focused deliberative process is impossible in direct legislation. Once a petition is circulated for signatures it cannot be amended, even if obvious errors are discovered. The only way for the sponsors of an initiative to amend the petition is to resubmit it for qualification with the state’s reviewing officer while collecting signatures all over again. As a result, initiative sponsors who recognize flaws or other undesired legal implications flowing from their currently circulating proposition are faced with a difficult dilemma: either resubmit the initiative and recognize serious financial losses, or continue with the current legislative attempt, notwithstanding the apparent flaws and errors. It is entirely unclear that they will choose the former. The inability to amend a proposal once the process has begun creates a serious risk of imperfect legislation.58 Third, the fact that legislators are repeat players, representing different political interests and parties, combined with their awareness of the need to work together on the current bill but also, and perhaps even more importantly, on future bills, fosters an atmosphere of political giveand-take and compromise. Enactment of most bills entails the creation of political coalitions, as a result of which a bill is always a reflection of the political compromise and political equilibrium that only the face-to-face deliberative process can foster. In the context of direct democracy, where there is no ongoing political bargaining, where the sponsors of today’s initiative are unmindful of tomorrow’s initiatives, it is much more likely that an initiative will not be the product of a process of political compromise, but rather a one-sided political expression unaccommodating of other political wills.59 Direct Legislation Creates the Potential for Voter Abuse Contemporary legislation is quite technical and the unique character of direct legislation makes it more prone to voter abuse. Modern legislation is often complex and laden with technical jargon that requires expertise which it is unreasonable to expect


29

average citizens to possess. This is one of the more unique aspects of the initiative process. Unlike ordinary legislation – only a few people draft the proposal, which is later presented to the voters “as is.” In contrast, ordinary legislation is drafted and voted on by the same body. Even though not all legislative members participate in the actual drafting, they can all, at least potentially, do so. In direct legislation, a relatively small group of interested parties drafts the proposal, the people - who are excluded from the drafting process vote on it, and subsequently various administrative and judicial authorities implement it. In this scenario, the people are placed at a substantial disadvantage in comparison to the proposal’s sponsors and the state agencies that are in charge of its final implementation. Aside from voting, the people do not participate in the legislative process. As a result, there is the possibility that communication between initiative sponsors and state agencies will be private and privileged, by virtue of the use of technical language and laden legal concepts, creating the risk that an initiative’s sponsors will mislead the public knowing full well that their bill’s real meaning and actual implementation by state agencies will differ from the significance touted to the voting public. Simply put, the combination of technical and complex legislation along with the breakdown of the legislative process is a recipe for the bypassing by special interests of the people’s real intent and actual political preferences.60 Similarly, initiative sponsors may create legislative “Trojan horses” by intentionally burying the bill’s real implications in misleading language, hoping that it will pass unnoticed. A stark example of an intentional Trojan horse is California’s Proposition 36, placed on the 1984 presidential ballot. Proposition 36 was an initiative sponsored by a lottery company. The initiative called for establishing a state lottery whose earnings would help fund education. Obviously, marketing the bill as a means of promoting education did not harm its popular appeal. But what the drafters were able to conceal in an innocent looking provision was the fact that the initiative not only called for establishing a state lottery but it also aimed at creating a monopoly with one main beneficiary, the sponsoring corporation. Indeed, the first three contracts the corporation signed following the initiative’s approval summed up

30


to 61.7 million dollars. It is doubtful the voters ever anticipated such an outcome.61 Direct Legislation Does Not Reflect Popular Will - The idea that direct legislation better reflects the people’s will is overly optimistic. First, the issues brought to the ballot are not necessarily either reflective of the popular will or the common good. After all, only those with substantial financial resources actually have the wherewithal to get an initiative going. They set the agenda but their concerns may not be identical to those of the common people.62 In reality, it is not the people, in the broadest sense, who vote for an initiative -- usually there is low voter turnout, and only the more affluent voters deign to participate in the process. The same voters who are better equipped to fully grasp and comprehend the proposed legislation are also more likely to go to the polls and vote, which often may mean that direct legislation represents not the people but rather elite groups.63 Ordinary legislation, on the other hand, may better reflect the will of the people since legislatures represent a wider variety of social and economic interests. Paradoxically, even though the people are not directly involved in ordinary legislation, their interests may be better represented. Moreover, the increasing number of initiatives submitted to ballot contributes to “ballot clutter” and diminishes the voters’ ability to express their political preferences clearly and rationally. Voters are asked, in addition to casting their votes in the regular elections, to read through a measure list, sometimes very long, which may diminish their ability to exercise their civic duty properly. In fact, some claim that the location of an initiative in the ballot list is crucial to its approval chances since voters suffer from voting fatigue. The further down a measure’s list an initiative is, the more likely the voters are to ignore it, which, de facto, amounts to a “no” vote. Overburdening the voters on election day is likely to diminish rational decision-making, not strengthen it.64 Money Plays a Greater Role in Direct Legislation - The power of money is too influential in the initiative context.65 As the popularity of initiatives increases, an initiative industry seems to be growing up around it. Professional signature collectors and strategic media campaigns are becoming essential components of


31

the initiative process. As a result, only those who can afford the costs and related expenses of an initiative are able to put one on the ballot. What was initially intended to make the legislative process more democratic to average voters has become a luxury of the wealthy. Some political scientists even claim that money plays a fundamental role in the passing of a proposition.66 Others claim that even if buying an initiative is not always possible, preventing its passage is a question of financial resources.67 Still another argument maintains that since sponsoring an initiative is expensive and difficult and since there is a prevailing bias in favor of the status quo, opponents can spend smaller amounts of money in a negative campaign and beat it at the ballot. In any event, the question of what bills will be enacted by the people becomes primarily a question of money.68 Furthermore, the money in the initiative context may favor the interests of extremists, since extremist groups seem to fare better when it comes to channeling efforts and resources or gathering money.69 Another argument against initiatives focuses on the possibility of manipulating initiatives for personal political gain by individuals trying to gain publicity or political attention. Because initiatives may be an efficient way of attracting public attention, wealthy individuals may attempt to capture public attention by sponsoring initiatives without being motivated by the common good.70 Direct Legislation Does Not Contribute to Civic Education - Direct legislation does not really educate the people since most people base their opinions on aggressive media campaigns and not on careful analysis of the propositions. The people will not take the time and energy to actually study the issues at hand and will therefore be easily influenced by resourceful campaigns and strategic marketing, not by arguments of content and substance.71

4.

CONTENT-ORIENTED ARGUMENTS IN FAVOR OF INITIATIVES

Many of the critics of the initiative process claim that, at the end, initiatives make bad law. That is, content wise, initiatives are unreasonable statutes. The main defense of supporters of direct

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legislation is that the negative ramifications of initiatives are generally exaggerated and these are problematic to ordinary legislation as well. The fact is that, ultimately, most initiatives proposed at the ballot are not enacted. Only about forty percent of initiatives qualified for the ballot are approved by voters.72 The people, in general, are cautious and when they are uncertain they tend to vote “no.”73 Thomas Cronin claims that this is because the voters are unwilling to legislate irresponsibly.74 There is no conclusive empirical study that demonstrates unequivocally that initiative statutes tend to be discriminatory or inequitable, however defined.75 The low passage rate of initiatives suggests that voters, in general, are acting responsibly and are trying to make good use of the powerful political tool they possess.76 Defenders of direct legislation also argue that claims of initiatives being inherently conservative are unfounded. As pointed out, there are no conclusive empirical findings that can justify these claims. Cronin points out that even if some initiatives seem to be conservative, it remains to be proven that such initiatives would not have been passed by state legislatures as well.77 This is hard to measure and that is why any empirical findings in this matter are problematic and partial. In the end, it seems that both liberals and conservatives get a fair shake in the initiative process and the claim that the process is inherently biased to either political group is yet unsubstantiated.78

5.

CONTENT-ORIENTED ARGUMENTS AGAINST INITIATIVES

Much of contemporary criticism regarding initiatives is focused on the content of direct legislation. I will not list the different variants of these arguments since they all take similar paths by underlining the dangers of bad statutes enacted by the people. Generally, there are claims that initiatives tend to inappropriately target minorities, be they political or otherwise, and by doing so are likely to produce intolerant legislation and promote bias and prejudice.79 Many of these arguments are based on the inherent nature of direct legislation (lack of compromise and minimal procedural hurdles) and thus are in some sense also process-oriented.80 Others are


33

grounded on the claim that citizens are not committed to constitutional values to the same extent as legislators.81 Claims that initiatives are likely to harm political minorities underscore the inherent absence of real, face-to-face deliberation in direct legislation. In this view, deliberation and the need for political compromise among the repeat players in the legislative arena can better prevent hate-promoting and radical legislation. The lack of representative mechanisms in the initiative process may unleash dormant primal forces of momentary majorities and enable them to overcome the obstacles they would have faced in the normal legislative process. Direct legislation may result in a tyranny of the majority.82

6.

AN INTERIM OBSERVATION

A reader confronting the hot debate regarding initiatives can be easily overwhelmed. At times, arguments from each side seem equally persuasive. How should one proceed to form a reasonable and educated perception of direct legislation? In my mind, a very persuasive argument against initiatives could have been made if it was proven that they were somehow likely to produce more hatepromoting and radical legislation. Yet, this claim is far from being self evident. One would expect that after more than one hundred years of direct legislation, such alleged bias, had it existed, would have been confirmed by a scientific consensus. In the absence of any such consensus I find the claim unpersuasive. Yet, there are some clear differences between the initiative process and ordinary legislation that do not require empirical support and cannot be overlooked. Clearly, the people cannot be expected to devote as many resources to the consideration of new legislation as professional legislators can. The initiative process is also more rigid than ordinary legislation due to time limitations and the inability to amend the proposition on the fly. This might accommodate legislation that is less fine tuned. On the other hand, in some real sense, direct legislation genuinely helps the people voice their concerns. After all, the people are directly voting on the issues and if the people’s will is important to us, one cannot dismiss direct legislation too easily. These differences should lead us to

34


perceive initiatives as a unique legislative tool, one that has some flaws but also some advantages. Many of the writers on the topic appear to be either extremely critical of it on the one hand or very sympathetic to it on the other and tend to underline one facet of the institution at the expense of another. Only a broader perception of initiatives, one that attempts to consider the wider aspects of the process and takes into account the advantages and disadvantages of direct legislation, could serve as a reasonable and persuasive basis for a legal theory of initiatives.

CHAPTER 3:

TOWARD A LEGAL THEORY OF INITIATIVES

1.

OVERVIEW

Initiatives are unique in legislative specie in several fundamental aspects. Primarily, they are different in the identity of their enacting body and in the means by which they are enacted, that is, by popular referendum. My main purpose is to propose a coherent jurisprudential theory that will present a unique legal treatment of initiative laws. As such, I am less interested in contributing to the ongoing debate, primarily between political scientists, about the merits and demerits of direct legislation. Nevertheless, my attempt to develop a legal theory of initiative laws must be based on an a priori evaluation of the initiative process in general. Ultimately, one’s stance on purely legal questions, such as interpretation and judicial review of initiatives must be grounded on a general institutional assessment of initiatives, be it hostile or friendly. But, in light of the exposition in the previous chapter, how can one make sense of the seemingly open ended debate over the merits and demerits of initiatives? It seems that every argument regarding initiatives is presented with an equally persuasive counterargument. The vast literature offers a variety of conflicting, often partial, empirical claims that render making a well educated decision very difficult. It seems, there are no clear-cut empirical 35

36


findings as to the merits or demerits of direct legislation. In spite of the pressing need for a definite empirical conclusion on this issue there exists no one right answer to the question of whether initiatives, in particular, make law that is counter to the common good. Nor is it proven that initiatives are inherently biased toward a specific political agenda.1 Because of the lack of such findings and in light of the claims and counterclaims made by the various scholars on the subject, I am inclined to assume that initiatives, as such, do not create bad laws any more than do ordinary statutes.2 As a result, I tend to reject arguments that criticize initiatives for their likelihood of oppressing minorities or producing irresponsible law.3 I am assuming that the value of initiatives, in terms of their actual content, should be judged on a case-by-case basis and that no content-based blanket claim about initiatives is persuasive. True, there is no guarantee that the people will make good law. But neither do I find persuasive the claim that they are in any worse position than that of the legislature to create good policy. It seems that, content wise, both legislative methods can lead to the creation of good, as well as bad, laws. A model for treating initiatives must be justified on their unique character. What we need is an analysis of the initiative institution as such. We need an analysis that focuses on the inherent procedural features of direct legislation and not their substance. We need a model that is based on principle and not on outcome.4 Such a model will be applicable to all initiatives, regardless of their content. Hence, I find arguments targeting the process of initiative lawmaking to be the most productive. No empirical findings are necessary in order to arrive at the conclusion that since initiatives cannot be amended during the process and since the entire process is time constrained, the institution’s ability to produce intricate statutes suffers, regardless of subject matter. Notwithstanding the professionalism of most initiative sponsors and drafters, the fact that a legislative proposal cannot be altered during the process of its enactment cannot be said to contribute to the flexibility required in accommodating different interests and positions. Additionally, no extensive research is required to conclude that most voters are likely to shape their opinions on any given initiative primarily on how it is presented to them in the

Toward a Legal Theory of Initiatives

37

media and not on what its fine print says. These seem to me to be intuitive, self evident, assumptions. In the same fashion, it is also clear that the idea of bringing policymaking to the people is in line with some of our most primal intuitions about democracy. It seems fair to assume that giving the people more political power is likely to enhance political participation and not diminish it. The value of these assumptions lies in their ability to elucidate the uniqueness of initiative lawmaking as such and to justify a unique legal treatment of direct legislation without being dependent on empirical findings. We need to gain a conception of direct legislation that provides a coherent meaning and context. A comprehensive view of initiatives will get us closer to capturing its essence and give us a better understanding of it. In order to capture the essence of initiatives, I suggest we consider direct legislation in three divergent aspects. First, we need to analyze direct legislation against the foundations of democracy and its justifications. This is an inquiry into political philosophy. Second, we must consider the distinct procedural and institutional features of direct legislation vis-à-vis ordinary legislation. And finally, we must attempt to understand how direct legislation is perceived in the wider context of social and legal communities. This last step is necessary since it is my belief that any good theory, be it legal, moral or political, should, if it wants to be persuasive, account for prevailing universal perceptions and understandings. Considering these three aspects, I hope, will help us reconceptualize the initiative institution, better capture the essence of initiatives and offer a plausible and coherent reading of the initiative institution. Let us begin our inquiry by analyzing initiatives against democracy.

2.

POLITICAL PHILOSOPHY: INITIATIVES AND DEMOCRACY

By exposing underlying justifications to democracy we will be better situated to evaluate direct legislation. Many theorists have attempted to offer grounds for justifying democracy and the writing on this topic is extensive.5 Thus I will not attempt to survey them all or to offer any of my own. Yet, it seems that the

38


vast majority of these different justifications can be grouped together into two basic archetypes.6 We can distinguish between process-oriented and result-oriented arguments in favor of democracy.7 Process-oriented arguments focus on some inherent features of the democratic process and attempt to justify democracy by reference to these features. Result-oriented arguments focus on the resolutions or outcomes that a democratic government produces. These arguments, even when they acknowledge advantages of some procedural features of democracy, underscore the value of the policies that a democratic process is more likely to yield. Accordingly, in democracy, it is substance and end results that matter, not the process itself. The presentation below will start with procedural arguments and then move on to result-oriented arguments.

I.

Democracy, Fairness and Initiatives

The fairness of the democratic process is a dominant justifying force for democracy. Accordingly, since the democratic process is based on procedures that must in some real sense be fair to all, then a democratic form of government, as a whole, is morally justified. There are a number of variants here. Some arguments highlight the idea that democratic resolutions must enjoy the approval of the majority, and are therefore fair to all.8 Others focus on the notion that in a democracy each person gets one vote, thus treating people equally and with respect.9 Other arguments point to the democratic idea according to which rules governing the political arena should be neutral and unbiased and not endorse any specific concept of the good. Since these features are best manifested in democracy it follows that democracy is the most desired form of government.10 In sum, arguments in favor of democracy on the ground of fairness make the justification of democracy a matter of establishing that the procedural aspect of the democratic process tends to be fair. If one finds this justification for democracy persuasive, one is bound to agree that initiatives pass the fairness test. If a justification for democracy is based on its being a fair regime, that is, giving each person a vote in a system governed by neutral


39

procedural rules, then it can be inferred that direct legislation is therefore justified as well.11 After all, direct democracy is a fair procedural mechanism. Direct legislation is not inherently biased toward any conception of morality and does not discriminate in favor of some individuals over others. Nothing in the mechanisms of direct legislation can be said to be any less fair than any other democratic process that is generally accepted.12 It has been argued against initiatives, however, that direct legislation favors those with relatively more financial resources since sponsoring an initiative requires significant amounts of money and since, in practice, only those who are affluent tend to actually participate in the process of direct legislation. I find these arguments unpersuasive for several reasons. First, a higher rate of political participation among the more affluent can be identified in ordinary elections and in other political activities as well. That is not a sufficient reason for eliminating these processes. The fact that better educated people tend to participate more in general elections does not force us to regard election results as undemocratic. What is important is that people have an equal opportunity to exercise their political wills. While it is regrettable that many choose not to do so, we cannot for that reason alone regard the process as undemocratic altogether. Second, the importance of money in the initiative process is inevitable. Requiring sponsors to cover their own costs has some justification. There has to be some threshold for filtering out frivolous initiatives and someone has to bear the costs of the campaign.13 The ability to raise money for an initiative campaign in itself serves as a signal as to the intensity of support for the cause. A more important consideration, however, is whether the alternative, that is, abolishing direct legislation, would render the political system more democratic. It seems to me that not offering any such political avenue is less democratic than offering it notwithstanding its financial burdens. To sum up, it seems that those who justify democracy on the basis of its inherent fairness must acknowledge that direct legislation is in line with that justification.

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II.


Democracy, Participation and Initiatives

Another line of argument for justifying democracy stresses the notion of participation. Accordingly, what matters most in democracy is not the fairness of the process but rather the idea that people must participate in government in order for it to be democratic. At the crux of this argument lies not the outcome of the democratic process with regard to any contested question, but the idea that the people’s participation in the act of governing is desired in and of itself. Here, too, this argument takes several forms. It could be argued, for instance, that participation in the governing process allows the people to rule themselves and that is, in itself, a sufficient justification for democracy or that, alternatively, participation in government is what justifies democracy, since the act of participation is what creates consent to the government on the part of the citizens.14 A similar argument stresses the virtuous consequences that political participation entails for the citizenry at large. It demands that citizens develop their autonomy and become more pluralistic and tolerant of other world views. These are necessary virtues for individuals in a harmonious society, and since participation is what best contributes to these virtues, it follows that democracy is the most desirable form of government.15 Enhancing the political power of the people with another political tool, i.e., direct legislation, enhances their political participation even if resort to that tool is infrequent and not equally popular along social class lines.16 Thus, even if direct legislation does not contribute to higher voter turnout in general elections, it certainly creates a larger or more varied political arena. In some sense, participation in an initiative campaign or voting for it confers more power on the participant than participation in the election of legislative representatives. Unlike ordinary political participation in which the people serve as mere pawns who are free to act only within a closed set of political choices made for them in advance by their representatives, through direct legislation the people themselves are free to make (almost) any political choice they please. They are free to set the agenda and to define their political horizons, even where they are in the minority.17 The notion of


41

political participation thereby becomes richer and more meaningful. While it is true that participation in direct democracy is not always equitable, similar claims can be made against representative democracy.18 But voting on an initiative should not be the sole factor considered in this context. Direct legislation also has indirect consequences that increase political participation. An initiative campaign is likely to initiate public discourse and increase public awareness. It invites public opinion and media attention. These are also ways in which political participation, in a wider sense, increases. Consequently, justifications for democracy based on its participatory character are, at the minimum, entirely valid in the context of direct democracy.

III.

Democracy, Popular Sovereignty and Initiatives

A third line of argument that attempts to justify democracy is based on an evaluation of the substantive policies adopted by democratic regimes. Accordingly, the argument here highlights the tendency of democratically produced policies to reflect the will of the people. Democracy, the claim goes, is the regime that guarantees best that the actual interests of the citizenry are reflected in governmental policies, whatever they may be.19 But why should taking account of the people’s interests make any difference? It seems that the idea is based on value-based concepts of moral autonomy and freedom. That is, if we perceive moral autonomy as a fundamental value, then a regime that most advances it by granting the people the freedom to rule themselves is desirable. For the people to rule themselves what is needed is a regime that reflects, in some proximity, their actual preferences and values. Democracy is the regime that best does this and therefore, under these moral guidelines, democracy is the most desirable form of government.20 Prima facie, it seems that direct democracy generally, and direct legislation in particular, increases popular sovereignty. It seems that “the whole reason for having a political process for enacting statutes is to determine what the ‘right’ thing is by assuring that, within constitutional bounds, political preferences are reflected in statutory results.”21 Accordingly, the citizens in a democracy act

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within a political system that enhances their political preferences, which is another way of saying they are self governing.22 Now, where the people have their say independently, when they can promulgate their unfiltered preferences, it is only reasonable to conclude that they are more in control over their lives and politically more satisfied. It is no surprise then that the notion of bringing power to the people has always been one of the stronger and more commonly referred to justifications for direct democracy.23 Nevertheless, the characterization of direct legislation as increasing people’s self rule has been fiercely attacked. The notion of “the people” has been deconstructed and demonstrated to be devoid of any real meaning.24 Furthermore, the idea that the people can better express their collective will through direct political tools has also been targeted.25 It has been argued that the role of money, special interest groups and other biased forces render direct legislation illegitimate as an expression of the popular will. The effect of such criticisms is to make one feel that direct democracy does not increase popular sovereignty but may, in fact, diminish it. Their strong analytic appeal aside, I find that most of these arguments miss the point. The main reason I come to this conclusion is that I find most of these arguments to be equally valid in the context of indirect legislation as well. In reality, there is no monolithic creature equivalent to the entity described by the words, “the people.” Yet, this fact alone does not prevent us from attributing adjectives to “the people” quite commonly.26 When the electorate votes for one candidate over another, we normally say that the candidate won the vote of the people. When an elected official performs his duties well, we would say he is genuinely representing the people’s interest. When the Justices of the Supreme Court, in a five-to-four opinion, reverse a federal circuit court opinion, we would say that the Supreme Court has resolved the law. The point is that we do not hesitate to attribute purpose and actions to collectives and institutions, even if these are subject to In fact, our very ability to potential deconstruction.27 communicate, even about the “law” as if it is some single, coherent object, as we most often do, is only possible if we overlook, to


43

some extent, the potential harms of linguistic deconstruction. The same method of deconstruction that targets the notion of the people can be applied to the legislature or to any other representative institution. Yet, despite these well known criticisms, we do not hesitate before we say that in a democracy the people (through various institutions) rule. I am not attempting here to resolve the philosophical and linguistic complexities that these points raise. I am only suggesting that if this line of criticism is accepted in the context of direct democracy, it might be proven to be overwhelming. In fact, it might undermine our most basic intuitions about democracy altogether. But until we are ready to do so, we should not be any the less skeptical about direct legislation as truly representative of the people’s will.28 The same is true regarding arguments charging the influence of money and media in the context of direct democracy. Regardless of the fact that the influence of these factors is not necessarily evil, it has not been conclusively proven that they play less of a factor in the context of representative legislation. Analytically speaking, there are some good arguments for both those who oppose direct legislation and those who defend it.29 Until conclusive empirical evidence is presented, I feel free to assume that these factors do not cause any more harm in direct legislation than they do in indirect legislation. I find unpersuasive the claim that direct measures by the people are less reflective of popular will than acts of their representatives. No matter how one puts it, it is simply counterintuitive to believe the claim that when the people speak more directly it is less reflective of their will than when intermediaries speak for them. Thus, if one justifies democracy on the basis of its ability to reflect the popular will and promote popular sovereignty one should, at a minimum, see the politics of direct democracy as promoting these exact same ideals.30,31

IV.

Democracy, Compromise and Initiatives

Some justifications for democracy focus on its likelihood to promote compromise. Such justifications often assume that individuals reasonably tend to maximize the usefulness of a political process in a manner similar to those commonly preferred

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mechanisms that promote “economic” efficiency according to the rules of the marketplace.32 Accordingly, the political process is perceived as a give and take, business-like endeavor through which all parties try to improve their political situation. Thus, if in the political market everyone is free to “sell” what he considers less valuable and to “buy” in return what is more valuable, we can expect a self-correcting market which at the end of the day will produce a generally accepted equilibrium. In a democracy, substantial political policies are a reflection of these compromises and this ability to produce compromise, in turn, justifies democracy.33 If one justifies democracy on its ability to promote political compromise, it seems, at least at first glance, that representative institutions are more fitted for this task. The specific identity of the legislators, the face-to-face legislative process allows more suitable conditions for potential compromise. Direct democracy lacks these features. Primarily, it lacks the tool necessary to refine a bill once the circulation process has begun. This bars the possibility of political compromise in the final statute. The result could be a non-compromising legislative act, a statute that is less a reflection of equilibrium of interests but more of unadulterated narrow interest contrary to the common good.34 There are several replies to this argument. Conventional wisdom suggests that deliberation promotes mutual understanding, common rationality and consensus. But some empirical evidence suggests that political deliberation does not promote rational and consistent results. In fact, the greater the amount of political deliberation, the more radical and fanatic do the negotiating parties become.35 Instead, it is the aggregation of individual votes that guarantees rationality and consensus (assuming, statistically, that a person is more likely to be right than wrong). The more votes you count the more likely you are to receive a more rational and moderate result.36 In the context of initiatives more votes are counted and less face to face deliberation occurs. Thus, according to this scholarship, initiatives are likely to produce more moderate and unifying results. Furthermore, it is unlikely that an uncompromising measure, representing narrow special interests, is likely to win a majority of


45

the voters. Success would be predicated either on the ability of initiative sponsors to mislead the public as to the contents and implications of a proposition, or on the will of the majority to run roughshod over the wishes of minority groups and individuals. Both of these scenarios are questionable. I am not persuaded of the ability of initiative sponsors to mislead the public into legislative errors. Generally, I think the media could be counted on to disclose and expose any hidden or problematic ramifications of a bill, as well as to uncover any falsehoods or half-truths. While it is true that there should always be fear of tyranny of majority, the question is whether the likelihood of such an occurrence outweighs the potential of, and the gains derived from, direct legislation. Given the absence of evidence to demonstrate that initiatives infringe and marginalize any more than the traditional democratic process, the plausibility of such an outcome seems even less likely.37 In contrast, I find the argument concerning the rigidity of initiatives and their inability to accommodate many interests of substantial weight. Any attempt to objectively address the initiative process must consider this argument and take it into account. As I discuss later on, the theory of initiatives I advance answers these fears and minimizes them.

V.

Democracy, Morality and Initiatives

According to another line of reasoning, democracy, or at least some forms of it, is well placed to promote morality.38 That is the case if we concede that any system of morality must meet certain requirements. First, it seems, a morality should be a set of rules prescribing some acts while prohibiting others.39 Second, morality must “serve as a public system of constraints on actions agreed to by citizens in a well-ordered society.”40 That such a system must serve as common bedrock of principles in a well ordered society is vital to its plausibility. Third, this morality must be one that would be accepted by free and independent persons.41 Fourth, if we want such morality to perform its role as bedrock of principles for the people, it must be stable, respected and not easily modified.42

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Given these prerequisites of morality, it seems democracy is in an excellent position to foster consensus on the substantive rules of morality.43 The open character of the democratic process, the accountability of political officials to the public and the free exercise of the right to participate in the political process all contribute to the establishment of just policies in a democracy. The shared values of morality are used to settle arguments and to justify actions, both one’s own actions and the actions of others. The people want a uniform, overriding system of morality and they genuinely want to abide by it. Democracy promotes this. It allows for the development of shared sets of rules by requiring that political officials publicly justify their actions – the public nature of the process requires that the justification of a political resolution be persuasive and appeal to a large segment of voters. In turn, by appealing to shared values, the justification is reinforced and moral stability is fostered. Obviously, these arguments are only presumptive; democracy does not absolutely guarantee that its policies conform to public morality.44 There are times, even in a primarily just society, when we are permitted, and perhaps even morally required, to disobey immoral or unjust laws.45 Personally, I share the view that if democracy is to be justified, its ability to produce just, or perhaps even moral, policies should be its strongest justification.46 In the initiative context, the question to ask is whether initiatives are likely to promote moral outcomes. My claim is that, at the minimum, they are just as fit to do so as ordinary statues. Direct legislation is more open to the public than ordinary legislation. In contrast to ordinary legislation enacted by the privileged few, from the moment that a proposition is introduced to the public, all deliberation is out in the open. There can be no behind-the-scenes dealing after the proposition is introduced because amendments are banned. The discourse and debate attendant upon presenting an initiative is likely to involve a wider public making it more in line with the features of morality. Thus, if democracy is morally desirable because of its inherent openness, it is also to be preferred because it increases the likelihood of just policies and laws. Direct legislation is most conducive to such


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democratic results and is perhaps a better alternative than ordinary legislation. Moral justifications for democracy are not problem free. Arguably, morality is more than just a matter of shared principles. To the contrary, we sometimes feel that our morality is not shared by others or that the rest of society has a perverse concept of morality. In these cases, democracy, as a process appealing to standards which are not universally shared, cannot be morally justified since we may disagree with the morality of these standards altogether. Yet, my chief concern here is not to justify democracy simply by an appeal to morality but instead to demonstrate that direct legislation, as a political institution, is seamlessly integrated with our views of democracy and promotes all that we value most about democracy. For the purposes of this work, I am taking democracy’s plausibility and justifications for granted, whatever they may be, and my goal is to prove that initiatives are desirable in light of these commonly accepted justifications for democracy. If I succeed, then those who embrace democracy should also embrace direct legislation. And if this is true, then we may also succeed in objectively assessing direct legislation and make further headway in developing a coherent legal theory of direct legislation. Thus, if one maintains that democracy possesses some mystical ability to produce moral policies, I cannot see why direct legislation is unable to do the same. Moreover, there is no conclusive evidence that initiatives tend to produce statutes that are contrary to the public good any more than indirect legislation.47 I, for one, cannot see how or in what way elected officials are in any better position to create moral law.48 In fact, if one is optimistic about human nature,49 and if one has faith in the human spirit and its essential beneficence, then one is justified in assuming that the more public the decision-making process, the more likely the policy is to be morally good.50

VI.

Democracy and Initiatives: An Assessment

Based on the foregoing discussion I argue that initiatives are an important democratic tool that enhances the rationales underlying democracy. Initiatives promote the very same goals for which we

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value democracy. Initiatives are fair and they are conducted under neutral procedural rules. Initiatives enhance political participation by providing an alternative to ordinary legislation, by causing the public to participate directly in the democratic law-making process and by attracting more citizens to the polls. Initiatives better reflect the will of the people, they enhance political satisfaction and give more meaning to the idea of self rule. Finally, initiatives are at least as likely as ordinary legislation to promote morality and justice because of their openness and widespread public approval. Ultimately, on the grounds of fairness, voter participation and self rule, initiatives are more easily justified than representative institutions and, further, do not seem to be inferior to ordinary legislation in their ability to produce moral outcomes. There is one dimension, however, in which initiatives may not fare as well, and that is the ability to reflect the diverse interests of different interest groups.51 Any legal theory should take this potential drawback into account. These claims about initiatives and democracy are not based on empirical grounds nor should they be. They are logical conclusions derived from analysis of our basic conceptions of democracy and if they prove incorrect, then something is wrong with the nature of democracy itself. Until we are ready to abandon democracy altogether, we may not dismiss direct legislation. We shall now move on to our second terrain of inquiry and explore the uniqueness of the initiative process through the distinct legal mechanisms involved in direct legislation.

3.

THE UNIQUENESS OF INITIATIVES

Much has been said about the uniqueness of initiatives and their distinctiveness. In my mind, there are three main aspects of direct legislation that most effectively capture its essence. First, it is enacted by the people who are, when all is said and done, the ultimate sovereign in a democracy. Second, it is only a secondary legislative avenue and is never utilized, or perceived, as the primary means of legislation. Third, some of the related procedural mechanisms prevent direct legislation from being an overhauling legislative tool and from producing dynamic, fine-tuned, statutes


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that reflect a wide array of political interests. I will discuss them one by one.

I.

Initiatives as the Sovereign’s Directive

Perhaps the most distinct feature of direct legislation is the fact that it is enacted by the people. The people are the sovereign and direct legislation is an enactment of the ultimate sovereign. If, in the ordinary course of things, the people express their will through representatives, who are in turn accountable to the people, the initiatives eliminate the middleman by giving a direct voice to the people. The entire process is carried out by self-appointed individuals, ordinary people who initiate the process and then vote for it at the polls. This simple fact has several implications. One cannot overlook that direct approval by the populace carries with it a stronger form of political legitimacy.52 After all, no matter how one justifies democracy, the concept of the sovereign people is always central to its rationale. Since initiatives must appeal to a large political audience for them to be approved they must closely approximate the political preferences of the people. Initiative sponsors must target as many voters as possible and must do their best to approximate popular will. In some sense, the people’s direct enactments are higher law. Indeed, this is already reflected in existing legal mechanisms of direct legislation. For example, unlike ordinary legislation, initiatives in all states do not require a gubernatorial signature in order to go into effect.53 Essentially, a governor loses his vetoing power in the initiative context. In addition, in many jurisdictions there are additional impediments to amendment of initiatives by the legislature. In California, for example, one of the most active states in terms of voter participation and number of propositions, the legislature cannot amend an approved initiative at all.54 Only the people can do so via a subsequent referendum. In some other jurisdictions there are other constraints, such as an initial time period during which the legislature cannot amend the initiatives.55 Some states impose the requirement of a supermajority vote in order to amend an initiative.56 These distinct features of direct legislation resonate

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with the notion that the people’s legislative utterances should be granted more respect than ordinary statutes. These features place initiatives on a higher normative plane than ordinary statutes. Yet, at the same time, it is hard to overlook the fact that the initiative process involves special limits and unique constraints, at least with regard to some issues. Some jurisdictions restrict the subject matter of initiatives.57 That is, some issues are said to be better dealt with by the legislature alone. Almost all jurisdictions impose a single-subject limitation on initiatives. Even if this constraint, as such, is not unique to the initiative context and is also present in ordinary legislation, recent judicial trends tend to apply the single-subject rule more strictly in the initiative context.58 Moreover, some jurisdictions ban resubmission of a failed proposition to the ballot until a specified amount of time has passed.59 Such procedural features reflect some skepticism as to the people’s legislative abilities. Legislation, very often, is an elaborate and complex matter and it may require the skills of fully devoted professionals. We cannot expect the people to devote as many resources as legislators to assessing or evaluating propositions. I do not mean in anyway to overlook the gap between the ideal depiction of elected legislators and reality. No doubt, often times, legislators fail to perform their job adequately. Quite often they are preoccupied with solidifying their own power bases and promoting their own personal goals rather than objectively legislating for the public benefit. Also, as argued previously, both legislators and the people shape their opinions and decisions via proxies. Legislators who vote on a bill often do not read every section of it; neither do the people. Yet, this reality cannot blur the difference in resources available to elected legislators and ordinary people. At least on some issues, fully devoted legislators are better equipped for legislation than the people. Even if legislators sometimes fail to perform their duties appropriately, it is still justifiable to assume that overall, legislators do utilize more resources in contemplating and evaluating legislative proposals. The appeal of the people’s legislative role, thus, is somewhat qualified. Direct legislation, then, carries with it an interesting duality. We cannot ignore the democratic appeal and legitimacy that the


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people’s direct legislation possesses, yet, at the same time we must also realize that the people’s legislative capabilities are somewhat diminished when compared with those of their elected legislators. This dual nature of the initiative process will be reflected in the theory I propose.

II.

Initiatives as a Secondary Legislative Avenue

The second distinctive feature of direct legislation is that it is not suited to be the primary legislative vehicle and it is not intended to replace ordinary legislation.60 No American jurisdiction has instituted direct legislation and abolished its legislature and where direct legislation was instituted it is always as an additional avenue of legislation. Even staunch proponents of direct democracy do not call for abolishing the ordinary form of legislation. Most legislation is carried out by elected representatives. Statutes enacted by initiatives are a very small percentage of the total.61 The hurdles involved in the initiative process are so daunting that it is extremely difficult to legislate via the people.62 Public mobilization is difficult and getting the majority’s approval is not something that can be easily attained.63 Equally discouraging is the fact that abstentions from voting, which are all too common, are tantamount to negative votes and undermine the democratic validity of initiatives which are solely intended to affirm the will of the majority. The resources needed to run an initiative campaign may also be prohibitively expensive. A lobbying firm would most assuredly be better off attempting to persuade a legislator to push their bill than attempt to launch an initiative campaign.64 Thus, direct legislation is only a complementary form of legislation, an institution that is not intended to replace elected legislatures, but rather add a different approach to the making of law and different laws to the body of law.

III.

Initiatives as a Rigid Legislative Tool

The third feature of the initiative process can be characterized by its rigidity. The enactment process of initiatives is less flexible or rigid compared to the dynamic procedure used to enact ordinary

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statutes. This rigidity is reflected in several ways. It is impossible to amend propositions once they are in circulation. The only way to do so is to resubmit the initiatives for re-approval and restart their circulation and signature collection all over again. Where ordinary legislation involves a process in which there are many amendment mechanisms available, the initiative process offers no amendment mechanisms at all.65 In ordinary legislation, a final bill may accommodate a variety of interest groups, any one of which is able, to varying degrees, to influence the final draft. By contrast, with regard to an initiative, because of the prohibition against amendments, the ability of anyone to influence the final outcome is very limited, as is the extent to which an initiative can meet the needs of the various interests groups. The public is presented with a single yes or no choice on a proposition, with all ability to amend the bill cut off from the moment that the proposition campaign has begun and under the pressure of time constraints. As described above, usually, the initiative process cannot last more than several months.66 The proposition, as initially presented to the public, must be put to referendum or discarded within a limited time period. Contrastingly, ordinary legislation may take years, during which amendment after amendment can be proposed, deliberated over, reshaped, rehashed, lost, forgotten, rediscovered and then refined. In addition, in some jurisdictions a rejected proposition cannot be resubmitted to the ballot immediately and a cooling off period is required, usually of between two to five years.67 This ban prevents the people from addressing an issue repeatedly, regardless of whether subsequent attempts might produce better legislation. In short, these unique features of the initiative process make it markedly less dynamic than the ordinary legislative process.68 To summarize the foregoing analysis, direct legislation is unique in several aspects. First, it is enacted by the people who, as I have said, are the ultimate sovereign, which in turn inspires two conflicting attitudes: on the one hand, respect for the people’s political right to represent their own interests directly and, on the other hand, doubts as to the people’s ability to legislate, in terms both of style and substance. Second, initiatives are only a supplemental form of legislation not intended to replace ordinary legislation or to usurp ordinary legislative authority. Finally,


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initiatives are a tool that is largely inflexible.69 The ability to fine tune initiatives or make them reflect delicate political agreements is somewhat limited in comparison to ordinary legislation.

4.

INITIATIVES AND COMMON INTUITIONS

Inarguably, the general American public dearly cherishes the idea of direct legislation. Many Americans feel that the people’s ability to legislate is an indispensable aspect of democracy. Many polls demonstrate that the people overwhelmingly favor direct legislation and will resist any attempt to limit or ban direct legislation.70 Regardless of the contents of a given initiative, it seems that Americans treat statutes enacted by the people with more respect. They tend to see them as the ultimate word of the sovereign. There is a prevailing sense that initiatives respond to the political dissatisfaction and frustrations of the people, changing the social order to make it accommodate their will. An analogy from the 2004 presidential election shows that a total of 11 measures banning same-sex marriages were sent to the polls in 11 different jurisdictions and all 11 were approved.71 Some commentators agree that this overwhelming blow to pro-gay movements was mainly a popular reaction to recent developments, specifically in Massachusetts and California, where the political achievements of pro-gay movements were clouded by political controversy.72 From a social point of view, the blow to pro-gay movements was greater precisely because these measures were enacted directly by the people, as if to say that the people’s enactments make a stronger social statement. My claim is that this is largely due to the fact that many Americans feel that when the people approve a measure it means something more than just another piece of legislation. The people’s direct ban on same-sex marriage is perceived, for good reason, as a greater defeat for the pro-gay movement than if the ban had been approved by the state legislatures. Realizing that the same-sex marriage issue mobilized the American public to come to the polls and express their opposition greatly aggravated the sense of defeat that was felt by the gay movement.73

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The idea that an initiative represents a more profound piece of legislation is shared both by politicians and legislators. This is reflected in the trend among politicians and political parties to champion popular propositions.74 Many of them do not wish to appear to be opposed to popular propositions as if that in some way demonstrates disrespect for the people;75 they also do not want to appear to be out of touch with their constituents. There is a sense that when the people regulate on a controversial issue, their enactment finalizes the debate.76 Even if, ultimately, there are ways to amend or repeal initiatives, such a move is often considered to be politically unwise.77 Finally, courts too tend to perceive initiatives differently. A central component of this work is the claim that the judicial failure to adequately distinguish between initiatives and ordinary statutes is unjustified. But it is nonetheless important to note that while courts fail to give initiatives different legal treatment via specific legal methods and doctrines, their rhetoric nonetheless suggests that they should. There is a gap between how courts speak of initiatives and how they treat them in fact. The courts speak of initiatives as “one of the most precious rights of our democratic process”78 or as reflecting the peoples’ “devotion to democracy”79 and have said that the “right of the initiative is ‘precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.’”80 Yet, these utterances are not translated directly into legal doctrine. This discrepancy, aside from exhibiting judicial incoherence and inconsistency, reflects an underlying judicial intuition that initiatives are different from ordinary statutes. The foregoing analysis suggests that direct legislation as a social institution occupies a special place in the public’s mind. It enjoys more respect, as if laws enacted by the people were more than just ordinary legislation. That the people, politicians and judges should see initiatives as something fundamentally different from ordinary legislation will not surprise us once we realize that initiatives advance some of the more essential democratic values and ideals. The fact that this is not reflected in legal doctrine is what needs to be addressed.


5.

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INITIATIVES: THE CASE FOR QUALIFIED RESPECT

In this section, I will conceptualize initiatives against a backdrop of democratic norms hoping thereby to make sense of the uniqueness of the institution and to give an account of the more commonlyheld beliefs about it. The special place that initiatives enjoy in relation to ordinary legislation suggests that the will of the people ought to be granted greater normative weight. Notwithstanding, the distinct features of the initiative process command that they are somehow constrained and controlled. The theory I want to present is both descriptive and prescriptive. It is descriptive in the sense that it attempts to capture and describe the essence of the initiative institution. The depiction I offer incorporates and harmonizes a relatively wide set of features and trends in direct legislation; it makes better sense of the current state of things and conceptualizes them coherently. Yet, I also want to suggest prescriptive elements that are derived from the specific description I offer. My theory is prescriptive in the sense that it suggests that we treat initiatives in a certain way: it excludes some treatment that undermines the essence of initiatives and affirms prevailing treatment and, in addition, prescribes innovative legal doctrines that better reflect the essence of initiatives. The descriptive suggestion I want to make, based on the foregoing analysis, is that initiatives are a political tool for expressing the intense, yet concrete and specific, political will of the sovereign. Initiatives are a legislative tool for regulating political issues that are a source of significant political dissatisfaction. They are a tool designed to address hot political topics that are either not handled or mishandled by legislatures.81 They are an improvised legislative tool whose purpose is to fix urgent political wrongs. The force most likely to touch off an initiative campaign is serious political dissatisfaction. Initiatives are unlikely to address trivial issues that won’t serve to harness public political energy, while the time constraints many states impose on the initiative process suggest it is a tool tailor-made to capture intense political energy. The initiative is well suited to the making of abrupt legislative utterances; it is not a tool for long, deliberate, decision-making.

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The initiative’s strength lies in its ability to finalize political dispute in a way that ordinary statutes cannot. It is a balancing measure in the hands of the people to be utilized when they feel their representatives are not representing them well, yet initiatives are not suited for regulation of all legislative areas or all political controversies of every type. An initiative’s ability to address a great variety of issues or to offer complex legal reforms is limited. The rigidity of the process suggests that it can best target specific issues. Its strength and uniqueness does not lie in its ability to reflect the delicate, fine tuned balance that ordinary statutes reject. Direct legislation’s ability to produce overhauling legislation that is capable of handling complex circumstances is quite imperfect.82 It’s more like a firebomb than a skill saw. The double impulse conception of the initiative, that is, its intense political message along with its limited ability to address complexities and produce great legislative reforms, is reflected in the distinctive features of the process described above. Americans think of initiatives as being “more” than vanilla statutes even though initiatives are only a small subset of statutes in general and even though they cannot replace legislation altogether, but because they are reserved for special cases and issues. Because initiatives are legislated by the sovereign people, they are not ordinary statutes and they deserve respect. This is affirmed by casting initiatives against a democratic backdrop and also in the immunity of initiatives both to post-enactment amendment by the legislature, and affirmed gubernatorial consent. However, the rigidity of the initiative process creates the risk of undesired legal implications. The diminished ability of initiatives to address complexities and produce extensive legal reforms is evident in the procedural features of the process. The limits on the subject matter of the initiatives that some state constitutions contain, the inability to amend or fine tune the proposition once introduced and the time constraints on the process as a whole diminish an initiative’s ability to address issues as acutely as an ordinary statute can. These limits also lessen the aptness of the initiative process to the production of statutes that are fine tuned and multifaceted, and, in general to reflect a variety of interests meeting a wider set of circumstances. This dual impulse conception of initiatives as expressing the raw


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unadulterated political will of the sovereign, the intense but specific political will of the people is how I suggest initiatives be conceived. I suggest that this conception should serve as an organizing principle for the development of a legal theory of initiatives. To sum up, initiatives, although a more representative voice of the people, contain inherent legislative mechanisms that prevent them from being a dynamic and comprehensive legislative tool. Based on this conception of direct legislation I propose a prescriptive legal theory for initiatives that I call Qualified Respect. Under this definition, initiatives should receive higher normative status within a minimized legal domain, that is, initiatives should be interpreted to be narrow in scope and well delineated in order to live up to the minimum requirements of the peoples’ intent. However, within that limited scope, initiatives should enjoy greater normative force than ordinary legislation. By granting initiatives more weight within a specified, definite, statutory domain, I intend to reflect the conception of initiatives presented above and the underlying impulses of the initiative. In short, the theory has as its premise respect for the people as the ultimate sovereign and thereby treats initiatives in accordance with what they are best designed to accomplish, that is, the expression of the sovereign’s intense, noncomplex and well targeted political will. Seen in this fresh light, the rigidity of the initiative process may seem newly justified. The theory explains some of the constraints involved in the process. The inherent impediments that prevent initiatives from being dynamic fine-tuned legislation are not flaws that we would be better off without. They are a reflection of initiatives in their essence. The initiative is a political tool created to reflect strong and spontaneous, even fleeting, political preferences. The procedural time constraints and the incompatibility of proposition and amendment may be perceived to flow naturally from the fundamental democratic idea underlying direct legislation. It is precisely because these constraints render initiatives resistant to a wide range of complex circumstances and issues that they ensure that the initiative expresses only the specific will of the public, its particular political preference with regard to a specific issue. The initiative is based on an estimate of political preference that is delivered in a somewhat careless or indelicate

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manner. However, any such approximation of the popular will should be given Qualified Respect, a respect that is both justified and qualified. The prescriptive aspects of the theory will be fully developed in the following chapters. In a nutshell, the theory suggests that courts should use legal methods to further serve the values and ideals underlying direct legislation. This should be reflected mainly in the areas of statutory interpretation and judicial review. Accordingly, I suggest that initiatives be given a higher normative status than ordinary statutes, that they be interpreted narrowly using under an intentionalist approach, and that the courts ought to avoid post-election judicial review to the extent possible but embrace substantive pre-election judicial review. The implications of the theory of Qualified Respect are not tantamount to advocacy of minimizing legal change or of making the initiative into a tool of the legal status quo. Had this theory extended only to limitation of statutory scope, that would have probably been the case. Minimizing statutory scope is certainly one method of minimizing legal change. But that is not entirely what I mean by Qualified Respect. Qualified Respect is about minimizing statutory scope and, at the same time, granting more normative weight to the thinned-out statutory norm. It is based on the conceptualization of the nature of initiatives as expressing intense yet local and specific political preferences of the people. Thus, an approach that only attempts to minimize any legal impact of initiatives is not what I had in mind because I do not believe that it is justified. Minimizing statutory scope while granting more normative weight to initiatives may result in substantial legal change. But that is not the issue. The formative ideal behind Qualified Respect is to grant greater normative force to the people’s enactments, but only to what they clearly and explicitly mean by these enactments. Nothing more, nothing less. It is important to note that my theory is not based on the actual intent of the original proponents of direct legislation in the United States. At least not primarily. My theory is an attempt to interpret and affix meaning to the institution of direct legislation, not to ascertain, or imitate, the mindset of its designers. My interpretation of direct legislation definitively takes into account


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how the framers of the process viewed it, but their views are often contradictory. They serve only as a guideline when interpreting the initiative institution as a whole. So while my theory clearly is in accord with the views of the historic figures who championed direct democracy, I am unconcerned that it in some ways deviates from the ways they thought of it. For example, there are reasons to believe that some original proponents of direct legislation viewed it as the best way of governing democratically and they meant for it to replace representative institutions altogether.83 Yet, this view was not incorporated into existing legal mechanisms. Legislative houses were not discharged and the subject matter of direct legislation remains often limited. A theory of direct legislation must take that into account. Although the initiative process is very much in accordance with our democratic values and the people’s political will demands respect, it is not wise to underestimate the limits of the initiative process and its potential to malfunction. To merely point out the superiority of the people’s will and disregard the initiative’s drawbacks is to miss the point. Notwithstanding the flaws of representational legislation, and despite the attractiveness of the notion of the people’s will, one should not be misled to idealize the initiative process and debase the representational legislative process. Similarly, to focus on the drawbacks of the initiative process and characterize it as a political evil or as counterdemocratic is equally unjustified. So negative a view of direct legislation runs counter is to our most heartfelt political intuitions and traditions and will does not withstand the test of theoretical analysis. Developing a legal theory on these fragmented conceptions of the initiative will prove to be inadequate since it will fail to capture the essence of the initiative process in its entirety and complexity. Most scholarly attempts to address initiatives have failed in the ways discussed above: they have either idealized initiatives or devaluated them while failing to appreciate fully their essential nature. Those critical of direct legislation focus on its faults and as a result demand that the process be discarded, amended or critically dissected. Initiatives, they argue, are to be regarded as second class statutes. In contrast, those favoring initiatives tend to focus on the flaws of ordinary legislation and

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usually complain that legislation in general suffers from inherent faults as well. Paradoxically, their defense of initiatives is grounded in the claim that they are “more of the same.” As a result, they usually argue that initiative statutes should be treated like any other statutes, whether for better or for worse.84 In my view, both sides of the spectrum fail to address the initiative process properly by focusing on limited aspects of this political institution. In the end, initiatives should be taken for what they are. The idea of Qualified Respect aims at exactly that. Qualified Respect has several implications. It offers a recasting of the initiative institution as well as a new legal theory and methods. The governing principles I describe can also help resolve a host of begging questions, some of which have been addressed sporadically, or only peripherally, by scholars. The prescriptive aspects of my theory are a result of what I find to be of the essence with regard to the initiatives institution. As such, the implications of my theory, presumptively, may apply to all initiatives regardless of their content. Thus, under my theory, two identical statutes arising from different legislative sources, one enacted by the people and one enacted by their representatives, with everything else being equal, should be treated differently.

CHAPTER 4:

QUALIFIED RESPECT AND STATUTORY INTERPRETATION

It is a well grounded idea that the authorship of a legal text, the process by which the text was created together with the aim of the text creates a context which affects legal doctrine.1 There are various examples to illustrate this point.2 Different kinds of contracts are subject to different standards of interpretation.3 Adhesion contracts are subject to different rules of construction than those that apply to ordinary contracts.4 This is also true to some extent with insurance contracts.5 Different underlying assumptions and rationales justify different interpretive rules. A will is interpreted differently than an ordinary contract.6 They are both legal documents with specific intent, yet the circumstances of their authorship, the purpose they aim to serve, in the specific case as well as in a larger social context, are different. These differences play a part in the way these legal documents are interpreted and perceived. Each legal text is governed by a different doctrinal regime.7 The idea that context makes a difference is not alien even to the realm of legislation. In-depth understanding of the legislative process has received growing academic interest.8 It is only natural that the various approaches to the subject should help shape the various legal methods and theoretical models.9 It is hard to overestimate the impact of public choice theories, for example, on our understanding of legislation. Insights about the legislative 61

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process from public choice theorists have illuminated our understanding and changed the way we think of, and deal with statutes.10 The breakdown of the amorphous concept of the legislature as a single coherent author and the shift of the focus to legislative key players is one example of such change. Here, the change in our perception of the identity of the legislature has changed how we interpret statutes as well as a range of interpretive sources we may find admissible. We also distinguish between constitutional norms and statutory norms and we approach them differently.11 Evidently, there are good reasons for doing so, even though both kinds of norms aim at shaping social behavior and both are sometimes authored by the Yet, we know that these legal texts are same people.12 fundamentally different because of their distinct role in a given legal regime. As a result we have developed two distinct legal fields, constitutional and statutory interpretation, which are governed by different doctrines and legal theories. But statutes are not the only normative source of regulation. The judiciary, through case law, creates another fundamental source of legal norms. Yet, norms originated in case law are treated differently from norms that originated in the legislative house. This, of course, might look obvious and self-justificatory. After all, how can norms created by courts, whose primary role is to resolve conflicts, be compared to norms legislated by an institution whose designated role is to legislate? We commonly perceive norms originating in the courts, usually implicit in cases, as of a completely different nature from statutes. The distinctions between norms set by the courts and norms set by the legislature are so fundamental that it is almost impossible for us to think otherwise. At first inspection, the comparison looks absurd, but upon further reflection it might not seem so odd. First, the assumption that legislators are busy legislating and courts are focused on resolving conflicts is inaccurate. While this might be true to some extent it obfuscates the fact the legislators are usually busy being reelected while judges are usually busy adjudicating. Not all opinions make law, but those that do are the ones on which judges invest the most resources and attention. The consideration given by judges to opinions, especially ones they know which will

Qualified Respect and Statutory Interpretation

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have binding legal force, is at least as careful and intense as the attention paid by legislators to their bills. Second, ambiguity and vagueness in statutes are quite common while judicial opinions strive for clarity and accuracy. This is not to say that statutes are not, on the whole, more easily accessible than legal norms authored by judges but the difference in clarity is often exaggerated. Third, in the end, both statutes and judicial norms exist as a means of regulation and are part of the same legal topography; ultimately, they serve the same goal. For this reason there should not be an extreme interpretive divergence between these two types of norms.13 I am not, however, suggesting that statutes and judicial norms should be treated exactly alike. That they are not identical and this should be reflected by disparate legal treatment. That being said, the level of resistance that would meet any attempt to blur the differences or to assimilate the distinct legal disciplines would only prove the point that authorship, circumstances, and context of different normative sources are of crucial importance to our perception and treatment of these separate norms. This is why I claim it is an untenable notion that initiatives and ordinary statutes be treated alike and why I think the substantial differences between these two normative sources must not go unnoticed in the interpretive arena. I find it self-evident that the very nature of initiatives indicates how they should be interpreted. Most scholars agree that state courts tend to treat initiatives and ordinary statutes alike and there is not much legal literature focusing directly on interpretation of initiatives as such. 14,15 Many textbooks dealing with legislation or statutory interpretation do not devote significant discussion to the topic of interpreting initiatives.16 When they do, it is only to mention the fact that popularly – enacted statutes are generally interpreted by the courts in the same fashion as ordinary statutes.17 The minimal attention the subject of interpretation of initiatives has received in legal academia is troubling for at least three reasons. First, it seems that the courts’ failure to distinguish between initiatives and other laws results not from extensive reflection and consideration. In most cases where initiatives are being interpreted, the courts simply ignore the uniqueness of the

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statute at hand. Rarely is there an acknowledgment of the distinctness of the statute being interpreted and a discussion of possible interpretive implications. More often than not, the courts fail to consider or see the differences between initiatives and ordinary statutes. Apparently, the similar treatment of initiatives and regular statutes is a result of judicial carelessness rather than judicial discretion.18 This is mind-boggling since, the courts’ rhetoric at times suggests that initiatives are unique.19 Yet, this rhetoric is not reflected in any legal doctrine.20 Second, clearly there are differences between initiatives and ordinary statutes which should at least be confronted and considered when attempting to interpret initiatives, as they are quite relevant to the interpretive question. Initiatives lack legislative intent in the usual sense; they enjoy intense political approval (by the mere fact that they are enacted by the people directly) and they are usually unalterable once they are out for circulation. In some cases, even after their approval, initiatives can only be amended by the people themselves or after some other procedural requirements are met. These differences in and of themselves should have great implications on the manner in which these unique statutes are interpreted. Third, the growing popularity of the initiative process in the last three decades is likely to promote litigation over more and more initiatives.21 Thus, the task of interpreting initiatives is more pressing than ever.22 The most prominent implication of the theory of Qualified Respect has to do with statutory interpretation. In the following pages I will present these implications and attempt to justify them. First, I will discuss interpretation in general and introduce the reader to some basic concepts of statutory interpretation. More importantly, I will set the grounds for making the case for my interpretive suggestions regarding initiatives. Subsequently, I will examine what the theory of Qualified Respect implies. I will argue that initiatives should be granted a greater normative weight within a well-delineated and minimized statutory domain. This translates primarily into narrow statutory interpretation under an intentionalist interpretive regime.


1.

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THE MEANING OF STATUTORY INTERPRETATION AND THE ROLE OF CANONS

Understanding the cognitive process of interpretation in general, and of statutory interpretation in particular, is not an easy task.23 Is interpretation about discovering a pre-existing statutory meaning or is it about assigning new meaning to a given statutory text? In other words, is it a cognitive or a creative activity? This question has been given extensive attention by scholars.24 Reed Dickerson, for example, argues that interpretation consists of a cognitive component and a creative component.25 The cognitive function involves the ascertainment of a text’s meaning. It is an act of discovery, where the interpreter is quite passive and is responding to “a complex of visual or auditory stimuli.”26 The second function involves the assignment of meaning to the statute by the interpreter. Here, a relevant statute whose meaning has been ascertained still fails to dispose of the case at hand. Facing this situation a judge must use his discretion and “perfect the rule that the statute announces or fashion or adjust one in the light of how the court relates its role to that of the legislature.”27 Others depict the interpretive process as being either exclusively cognitive or exclusively creative.28 According to the cognitive approach, a judge interpreting a statute simply discovers the preexisting meaning of the text. He is never creating anything of his own. According to creative approaches – in contrast with cognitive approaches – the statute never carries any meaning of its own. The meaning is always whatever the interpreter affixes to it, “words might appear a little more than empty vessels into which the court may pour any desirable judicial meaning.”29 Thus, a statutory interpreter is by definition always a creator of meaning. A fourth approach perceives statutory interpretation to be a synthesis of the cognitive and creative functions.30 But unlike Dickerson’s account, where interpretation is a two step process of cognition followed by creation, here interpretation is an integration of the two activities that results in a unique, irreducible, psychological process that is interpretation. The judge is recognizing and creating meaning at the same time. As we consider different interpretive approaches below, we should bear in

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mind this interplay between cognition and creativity in the interpretive process. Perhaps the most common working tools in the arsenal of the statutory interpreter are the canons of construction.31 Canons are interpretive rules that help interpreters through the process.32 Jurists and legal readers encounter canons all the time as they are an integral component of almost any judicial decision. Inclusio unius, ejusdem generis, the plain meaning rule, the rule of lenity, strict construction of statutes in derogation of the common law, broad construction of remedial statutes and broad construction of statutes favoring Native-American tribes are just some of the canons to which courts resort. They are all aids in the process of making sense of a statutory clause, section or an entire code. Typically, scholars identify two common kinds of canons: linguistic canons and normative canons.33 Linguistic canons help the interpreter decipher the meaning of the statutory text. Normative canons, on the other hand, are not invoked in order to understand what the statute says or what the legislator actually intended, but come into play in areas where the law is silent or when one is unable to understand what the law means. They help implement important policies or legal principles even if this comes, to some extent, at the expense of otherwise plausible readings of the text.34 Canons can play a role in both cognitive and creative components of the interpretive process. Linguistic canons, especially, help the interpreter decode the meaning of the text. They aim at deciphering its preexistent meaning. Substantive canons play more of a creative role since their aim is not so much to decipher the pre-assigned meaning of the text but, instead, to affix to the text a meaning that better conforms to important policies and goals.35 As previously described, there are different accounts of statutory interpretation, that is, different ways of defining what legal interpreters are and ought to be doing. In the following pages I shall outline three main paradigmatic approaches to statutory interpretation: intentionalism, purposivism, and textualism. This background survey leads the way for understanding my assertion that narrow intentionalism is most appropriate for interpretation of


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initiatives. The following analysis should not be taken as conclusive. There may be different ways of classifying interpretive paradigms. Nevertheless, the following outline attempts to be faithful to the prevailing perceptions of statutory interpretation36 and at the same time to move us toward a better understanding of what is at stake when selecting appropriate interpretive approach to initiatives.

I.

Intentionalism

Intentional approaches identify actual legislative intent, or subjective intent, as the locus of the interpretive activity.37 The judiciary’s role is to determine what the legislators subjectively intended to achieve by the statute they enacted and to apply that original intent to the circumstances at hand. The notion of interpretation as the process of discovering the legislative intent tightly fits into our fundamental conceptions of constitutional democracy. Even if we are ready to allow more discretional freedom to courts, and more so if we see them as agents of the legislature, it is clear that what should guide and delineate their role are the directives of the legislature. Texts are only vehicles for conveying meaning. As such, they are an important interpretive source, perhaps even the most important one, but only as long as we see them as a mean, one of many, for the end of discerning the intent behind them. This interpretive approach underscores the cognitive character of interpretation. The judge is not a creator of the law but rather a discoverer of the intent underlying the text produced by the legislature. The process of determining legislative intent resorts to different kinds of sources in order to shed light on the legislative mindset during the enactment of specific pieces of legislation. Legislative history, comprised of committee hearings, floor debates and explanatory notes are examples of such admissible interpretive sources.38 The notion of respecting the legislative intent is so fundamental that where it is clear that the legislative intended something different than what it actually enacted, the spirit of their intent should prevail, even at the expense of a statute’s wording.39


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II.

Purposivism

Both intentionalist and purposive theories share the idea that a text can not be understood as it is and that reference to context is always necessary.40 But the two approaches diverge as to the identity of what that context is. Intentionalist theories center on the legislative intent as being the ultimate criterion of the interpretive process, whereas purposive theories find the heart of legal interpretation in discerning the purpose of the statute.41 Purposivism is sometimes motivated by conceptual problems with the notion of legislative intent, such as the limited foresight of a plurality of legislators.42 These problems, as well as other normative assumptions, lead proponents of this interpretive school to place statutory purpose, rather than intent, as the objective of the interpretive enterprise.43 However, focusing on the actual intent of the legislators at the time of legislation is to completely overlook the fact that a legal rule, by definition, is always extended to meet circumstances unforeseen by its designer. In fact, a statute is meant to be applied precisely in cases that the legislature did not envision. Any other understanding of the role of legal rules would render them unnecessary and would ensure that statutes become nothing more than a long list of potential circumstances accompanied by legal implications.44 The plausibility of a legal rule lies in its ability to abstract the rationale behind such possible list so it can be later applied in unforeseen circumstances. To focus on actual, specific intent is to narrow the scope of the law to such an extent that it might become meaningless. Thus, according to purposive interpretation, the interpretive process should aim at the purpose of the law and not the subjective or actual intent. Instead of asking what the legislators actually intended when thinking and writing the law, we should ask: what the law-maker meant by assuming his position, in the surroundings in which he acted, and endeavoring to gather from mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy.45


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By answering these questions we can most effectively apply the legislative “intent.” To ascertain statutory purpose is to attempt to read the statute in light of the purpose it aims to achieve. The reconstruction of statutory purpose is achieved by a careful, meticulous study of the circumstances and prejudices embodied within and encompassed by the enacting legislature. And, although legislative intent is an important foundation for discovering statutory purpose, it is only one of many components along with other legal rules and principles that contribute to the process of determinating statutory purpose. Constitutional values, for example, play a part in shaping statutory purpose even if they were not actually taken into account by the specific legislators drafting the statute. This approach enlarges our focus. We are interested in what the legislators, intended at a more abstract level rather than being obsessed with the psychological mindset of the legislators at one point in time.46 Thus, we are able to apply the law to unforeseen circumstances specifically because these instances give us the opportunity to advance the law’s purpose and this is exactly what the legislators intended, even if, by definition, they were not able to predict every such instance. The process of discerning the purpose of the law involves making assumptions about the nature of the legislature regardless of whether these assumptions accurately describe the actual legislative mechanism. As Hart and Sacks put it, the law is the product of “reasonable persons pursuing reasonable purposes reasonably.”47 It is easy to understand why this view of legal interpretation was, and to a large extent still is, very popular in the U.S. and abroad. The plausibility of purposive interpretation lies in the fact that it seems to allow for a process of interpretation that is both faithful to the original legislators by adhering to the purpose of the law, but at the same time rejects the static elements of strict intentionalism. Purposivism does not force the conception of interpretation as being wholly cognitive or creative. It is neither wholly cognitive since it is not after a predetermined, awaiting-tobe discovered, implanted legislative intent, nor is it wholly creative since it is does not create law or ignore interpretive restraints.


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III.

(New) Textualism

Since the 1980’s, American judiciary and academia have been witnessing the revival of textual interpretive approaches. Led by figures such as Scalia and Easterbrook, the influence of this awakening is quite broad.48 As the name suggests, this interpretive approach centralizes on the text in the interpretive activity. Accordingly, under this approach legal interpreters should focus solely on the text of the law, its words, its clauses and its context.49 They should try to avoid, almost entirely, any resort to extra-textual sources. If external sources are to be utilized, they should be aimed at making sense of the literal text, not the legislative intent or some legal purpose. The new textualism views the role of the courts as applying the law technically.50 But the law, after all, is nothing but textual directives of the legislature produced in accordance with formal procedural rules. Understanding the text and applying it is the only role of the judiciary.51 Now, understanding what the text means is different than understanding what the legislature meant. Whereas some might justify textualism in its aspiration to adhere to legislative intent, the new textualism justifies the supremacy of texts primarily because of its rejection of the notion of texts as mere vehicles for legislative intent. The new textualism regards the legislative intent as trivial and almost irrelevant to the interpretive process. Once the legislature has spoken, through texts, these texts become “public domain” in the sense that what gives them meaning is not the legislature’s intent but the meaning that could be attributed to them according to conventional rules of language which may change over time.52 New textualism also builds on conventional criticism against legislative intent.53 Where laws are being enacted by a plurality of legislators it is irrational to speak of “legislative intent.” Laws are primarily the product of political bargaining, an outcome of conflicting political interests, not of some single coherent mind. As political studies demonstrate, legislators are often motivated by a variety of incentives, only some of which have been influenced by coherent legislative intent. Sometimes they do so after considering only few sections of the bill, usually those of specific interest to


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them. Logrolling and other political give-and-take contribute to legislation being an incoherent agglomerate of statutes, reflecting changing political bargaining positions. Ultimately, the text is the only thing that has actually been agreed upon by the legislators and it thus reflects some state of political bargaining. Unlike the amorphous notions of legislative intent and purpose, the text is quite tangible; it is black and white, and equally accessible to all.54 To the extent that the legislative intent is reflected in the text, any attempt to look for it outside the text is superfluous. To the extent intent was excluded from the text, it was never enacted, thus, it is not law and should not play any role in the interpretive process.55 Textualism carries with it several implications and promises. First, it denounces any research into legislative history. The interpretive process should not be devoted to “archeological” findings, that is, research focusing on incidents prior to the actual enactment of the law. The focus should be forward looking. It is clear, then, why textualists insist on the inadmissibility of legislative history, house reports, committee reports etc.56 Second, it demands legislators pay more attention to specific wording and law drafting procedures. If they know that only the text will ultimately count, they are bound to be more careful and accurate when selecting their words. 57 One cannot overlook the apparent formalistic character of textualism. It allegedly minimizes the role of the judiciary, substantially limits resort to extra-textual sources (especially legislative history), and obsessively preoccupies itself with the rule of law (text, that is).58 But textualism is more radical than it seems. First, it rejects the traditional approach that the judge’s role is to discern some legislative mindset that accompanied the legislative act, be that legislative intent or a more abstract version of legislative purpose. Second, by insisting on a distinction between intent and language, textualism, in some sense, minimizes the traditional centrality of the legislative process in the interpretive enterprise. The focus now is solely on the end product of that process, not on any specific link in the chain that led to the end result. Third, by accepting the linguistic insights, according to which speech (or text) derives its meaning from conventions that are usually not under the speaker’s control, textualism may lead to


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interpretive results that are entirely different from what the legislator conceived.59 This might lead to some unease on part of traditional interpreters and “conservative” jurists. Fourth, by understanding that linguistic conventions change over time, as language is an ever-evolving social institution, textualism conceives the law as ever-changing and never stagnant. Textualism frees the law from any real anchorage point that can guarantee it will carry the same meaning over time. Law becomes an ever–changing institution the meaning of which drifts as language develops. Paradoxically, it seems that ultimately in contrast to first impressions, in its desire to preserve the rule of law, textualism may become quite attractive to less conservative jurists.60

2.

INTERPRETING INITIATIVES WITH QUALIFIED RESPECT

It is time now to take stock. I offered a specific conceptualization of initiatives. Accordingly, initiatives are a legislative tool for the expression of intense and well–defined political dissatisfaction.61 I also argued that this conceptualization must be translated into legal doctrine. Accordingly, initiatives should be granted a higher normative status than ordinary statutes and the scope of their application should be minimized and well defined. More specifically, I argued that initiatives should be interpreted narrowly under an intentionalist regime.62 The other side of the coin is that once their scope is delineated, initiatives should enjoy greater normative thrust. We shall now turn to examine how this is further reflected in legal doctrine in the area of statutory interpretation.

I.

Initiatives and Intent

An interpretive model for initiatives must reflect the nature of direct legislation.63 My argument is that intentionalism is especially justified in the initiative context because it both reflects and advances the rationales underlying direct legislation.64 Intentionalism is also inherently biased toward minimalism and narrow application scope. Narrow statutory application is exactly what is appropriate for direct legislation in order to overcome


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some of its inherent procedural flaws and will serve as a better proponent of its purposes. So intentionalism and narrow construction are functionally related, and both are faithful to the conceptualization of initiatives for which I argue. If an initiative is an expression of intense political preferences of the people, and if the people as sovereigns deserve respect, then courts should interpret initiatives to capture these preferences even if the initiative’s text, as such, might occasionally seem to be in conflict with the initiative’s intent. Initiatives are a vehicle for expressing the desires of the sovereign people and the purpose of direct legislation is to supply the people with a political outlet through which they can signal their interests when their representatives fail to meet these concerns. The purpose of direct legislation is not to offer a legislative mechanism for making massive legislative reforms. Here, more than with ordinary statutes, courts should attempt to be responsive to the people’s collective intent. After all, the people’s political dissatisfaction is the driving force behind the enactment. Thus, the courts should be as faithful as possible to this original intent of the people.65 Since the people are the ultimate sovereign and since initiatives reflect the people’s will more clearly than ordinary statutes, the courts’ role should be to interfere with the people’s intent as minimally as feasible. Courts should ascertain the legislature’s will and apply it. This is the underpinning concept of intentionalism. Under intentionalism the courts are considered agents of the sovereign and, as such, their role is inferior to that of the legislature. And this is what is needed in the initiative context.66 In fact, ascertaining legislative intent is what courts most often claim they are doing within the initiative context.67 Yet, the courts’ rhetoric is at odds with the reality that the actual practice of the courts does not allow them to ascertain that intent, especially in their refusal to resort to informal interpretive sources such as media campaigns and exit polls.68 My argument justifies judicial rhetoric but demands consistent interpretive rules. Furthermore, interpreting initiatives in light of the people’s original intent will help prevent some of the problems scholars have identified with the initiative process. Accordingly, the claim

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goes, there is a risk of voter manipulation on the part of initiatives sponsors. They can draft a proposition carefully and create a misleading impression of its contents for the public. Voters will base their vote on public understanding and not on the fine print of the statute. If courts interpret initiatives in light of the apparent public perception, this problem could be somewhat alleviated.69 Another justification for intentionalism is that it is functionally related to narrow construction. By sticking to legislative intent, courts avoid abstract interpretation of statutory meaning. The more courts attempt to adhere to original intent, the more detailed and specific the statutory application scope will be. In contrast, if courts exercise purposive interpretation that involves overabstraction of the legislative intent into statutory purpose, the statutory scope will be enlarged.70 Abstraction is a common tool for enlarging the application scope of a given norm; it is one of the techniques used in constitutional interpretation.71 Another reason intentionalism is preferable is that it leads to the avoidance of this technique in the interpretation of initiatives. One of the difficulties with intentionalism is that it does not allow courts to apply statutory rules to unforeseen circumstances. Intentionalism, by referring solely to the original intent, renders the meaning of statutes static and subsequently will render many statutes either inapplicable or eventually obsolete. 72 Yet, what might be a valid argument against intentionalism in the context of ordinary legislation might prove insufficient in the initiative context.73 Initiatives are an expression of political dissatisfaction over concrete issues, and as such are best suited to address immediate and undisputable circumstances. They are a tool for addressing specific issues in which the people feel their representatives are failing them. Accordingly, initiatives should be designed to target clear and immediate problems that are engendering specific concrete mischief. Thus, attempting to expand them beyond their immediate and clear meaning is to distort their institutional purpose and to misconstrue their rationale. Oftentimes an active judicial role of harmonizing, updating or interpreting statutes is justified by the existence of a judiciallegislative discourse.74 The legislature legislates, the judiciary


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interprets and reviews, the legislature reacts and vice versa. But this kind of colloquy, to the extent it is valid with ordinary legislation, is even less appropriate in the initiative context.75 The initiative process is not a tool for routine legislation. After all, the people are not literally an active fourth branch of government. The process is costlier, mobilization of the people is more difficult and no coordinating authority or function exists that can review judicial responses and trigger popular reaction accordingly. It is a mechanism reserved for specific and temporal issues and it is not an invitation for a dialogue. Despite the fact that, in most case, legislatures can amend initiatives, this process is more difficult than amending or repealing ordinary statutes. Thus, courts should take extra precautions here and they should do their best in fulfilling the people’s will. The meanings courts will affix on initiatives are unlikely to be changed or overturned by the people. The definitive character of interpretation of initiatives should raise judicial cautiousness and demand that courts are certain that they are interpreting the initiatives in maximum accordance with the popular will. Their interpretation is not presumptive only. It has the authority of the final say. Narrow intentionalism in this regard is an appropriate conservative approach. It attempts to stick to the core meaning of the initiative and, thus, fits well with the judicial cautiousness that is especially needed in the initiative context. An argument can be made that precisely because initiatives are harder to enact, the courts should take an even more aggressive role in updating an initiative statute and conforming it to the existing body of laws. Precisely because there is no discourse here, courts should be allowed to be more creative in adapting initiatives to changing circumstances. Accordingly, the argument may be, in the ordinary context, the legislature might be expected to act, but if it does not, so be it. Legislative amendment is relatively easier and if the legislature chooses not to act it is not up to the courts to do its job. However, in the initiative context, the people are less easily mobilized and less likely to react and to update their own legislation. Here, the court’s active role becomes a necessity. Nonetheless, I find the arguments for lesser judicial activism in the initiative context more persuasive. First, my suggested approach is more consistent with the underlying nature of initiatives as a

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directive of the sovereign, expressing intense political preferences. They are vehicles for addressing clear and immediate issues and their life span or application scope is not supposed to be extended beyond fulfillment of their original task as perceived by the people. Second, if initiatives are seen as a check on the legislature, attempting to harmonize them will do disservice to the institution of direct legislation. After all, initiatives are intended to allow the people to speak directly and to change the status quo, not to be seamlessly integrated into it.76 Third, initiatives, in most cases, can be amended or repealed by the legislature even if this occurs after a cooling-off period or if doing so requires meeting some other procedural requirements. If the legislature prefers not to “update” obsolete or “inappropriate” initiative statutes, it is definitely not the role of the courts to do so. Explicit confrontation over initiative statutes by the legislature could be a high-risk political undertaking. And for good reason. It is no coincidence that politicians often prefer not to take on this task. Yet, difficult as it may be, this is a pure political power struggle and one that should be reserved for the political arena where the main players are accountable to the voters. If anything, granting the courts the ability to perform the job the legislature seeks to avoid is undesirable because it covertly embroils the judiciary in a political power struggle. The risk of causing greater political dissatisfaction by tampering with popular will outweighs any advantages gained, especially when initiatives are able to be amended or repealed by elected legislators – even if it takes significant politicking. Perhaps the most fundamental difficulty for embracing intentionalism, especially in the initiative context, involves the plurality of legislators and the elusiveness of the concept of collective intent.77 So strong is this critique that many disregard intentionalism as naïve or completely inadequate. Yet this criticism of collective intent, public choice style, is somewhat exaggerated. We constantly assign intent or meaning to collective entities in both legal and non-legal contexts.78 We speak of the “people that have made their choice” or of the “policies of the school,” phrases that illustrate our inclination to affix intent or mindset to an institution or collectivity, as if it were acting like one autonomous organism. Without delving into the philosophical possibilities or


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the plausibility of such attribution of meaning to collective action, it is fairly evident it is a matter of everyday practice.79 Collective intentionality is an indispensable concept that cannot be reduced and is at least as fundamental as the concept of individual intent.80 I see no particular reason why this habit should be excluded from the initiative context and it is not unreasonable to speak of a collective mindset that serves as an impetus for a given initiative or any other political action. It is not irrational to say, for example, that an approval of an initiative cutting down tax rates reflects a specific popular mindset regarding recent tax trends in the state.81 It is not irrational to speak of the people as sharing a mindset or political preference, nor is it irrational to assert that such a collective mindset should serve as a working tool for the legal interpreter.82 This view does not overlook the problem of divining the will of the voters, nor do I claim that such a task is easy.83 Yet, assessing the popular intent behind a given initiative does not require any ability to philosophize metaphysically. The courts are quite able to assess the actual intentions behind a writing based on objective empirical evidence.84 This is what the courts do when interpreting contracts where there is a need to interpret the parties’ intent, for example. The task of the courts in interpreting initiatives is to assess collective intent even if the only tools available to them are objective and empirical or inferential. In the initiative context, the courts may resort to voter pamphlets, campaign materials, media reports and exit polls, for example, in order to assess what the people had in mind when they cast their ballots. This is, of course, no easy task, because it calls for the ability to manage and master a potentially large quantity of informal materials open-ended in terms of the information to be considered. Yet, notwithstanding these obstacles, a judge genuinely attempting to ascertain popular intent should be able, in many cases, to achieve that goal. To claim otherwise would be to cast doubt on the judges’ ability to perform their judicial duty in ordinary statutory interpretation as well.85 Legislative intent, I argue, reconstructed from all possible interpretive sources, may play a very useful role in the interpretation of initiatives.

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Purposive interpretation is inadequate in the initiative context for two main reasons. First, in its tendency for abstract interpretation it is likely to broaden the statutory application scope. That, as such, is undesired in the initiative context.86 Second, and most importantly, purposive interpretation may not be as attentive to the intentions of the people, which is at the crux of the theory of Qualified Respect. While purposivism does not exclude legislative intent as an interpretive source, it does not give it the primacy needed in the initiative context. Purposivism is appealing since it gives to the courts the elasticity and flexibility needed in ordinary statutory interpretation, an area where the courts should be more active. Where the courts need to harmonize statutes, to update them and to apply them to a wide variety of changing circumstances, purposivism will serve. Yet, this aggressive role is inappropriate in the initiative context. Here the courts need to take the back seat. They are not engaged in a discourse with another governmental branch nor are they responsible for updating an “obsolete” statute. Here they are to strictly apply the directives of the people and that is why intentionalism makes more sense in the interpretation of direct legislation. Textualism is a serious contender but, ultimately, I find it inadequate as well. If one rejects intentionalism or the attribution of purpose to collective action, and even more so where the legislating body is made up of many diverse groups and individuals, as is the case with direct legislation, then perhaps the text is the only authoritative source left. Yet, a close look at textualism reveals its inappropriateness here. As I noted above, textualism is committed solely to text and language, adhering to statutory text and linguistic conventions at the expense of legislative intent, subjective or objective. Legislative intent is relevant so long as it is a part of the text, in which case there is no need to resort to external sources. So perceived, textualism places the judiciary on a plane with the legislature. Judges are not agents of the legislative branch of government. They are engaged in a discourse with the text and their limits of interpretation are delineated by linguistic conventions that are always changing. They are not constrained by some predetermined legislative intention or desire. From this point


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of view, even clear legislative intent is subordinate to textual interpretation. It is precisely this depiction of the judicial role that is inappropriate to the initiative context. Our conception of initiatives is that they deserve respect since they are enacted directly by the sovereign people and because they conform to fundamental justifications for democracy. They enhance popular political participation, they reflect unfiltered popular interests and they increase the political satisfaction of the electorate.87 Respect for initiatives is also grounded in existing legal doctrine as well as in prevailing intuitions and perceptions. The respect owed to initiatives is grounded in the identity of their legislative body, and in the unique process that produces them, not in the text that accompanies them. Textualism takes no account of that. On the contrary, respect for the people is seriously diminished when the text exclusively determines statutory meaning. Textualism would allow the judiciary too much latitude in deviating from the clear intent of an initiative statute since it focuses too strictly on the text. Anything prior to enactment becomes either irrelevant or of diminished weight. This is exactly what is inappropriate in the initiative context if we want to place primacy upon the people as legislators. What is arguably plausible in the ordinary statutory context is not appropriate to direct legislation. If agency aspects of the judiciary’s role are to be enlarged, then the way to accomplish this goal would be through the initiative context, but textualism fails to allow for this approach.88 Intentionalism, in contrast, perceives the text primarily as a vehicle for the sovereign. It preserves the view that the judiciary is subordinate to the legislature and the text is only a means of communication. Statutory interpretation is not about acrobatic linguistic maneuvers but about discerning and reconstructing the coherent underlying meaning that is the will of the sovereign. To the extent that judges need to take an active role in defending the popular interest and the rule of law, it is more suitable they do so with ordinary statutes, where the potential for legislation that deviates from the popular will is greater. But where the people legislate themselves it is less just to disregard legislative intent or evident purpose in the name of textual conventions.

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Following the will of the people is implied by and inherent to initiative statutes. It preserves the people’s self rule where the people are most likely to exercise it. Substituting conformity to linguistic conventions for an effort to understand the will of the people would likely contribute to political dissatisfaction.89 More important, it would fail to promote the underlying rationale for direct legislation and would not treat it with Qualified Respect. The foregoing analysis entails several prescriptive suggestions. If we accept intentionalism as the preferred approach in interpreting initiatives, then the text of the initiative should be less central to a determination of the voters’ intent than it would be in the case of ordinary statutes. Where a statutory text has been refined and reviewed during the legislative process, through committee hearings, markups, floor debates and conference reports, there is a greater likelihood that it actually will reflect legislative intent and political compromise. But all of these are missing in the initiative process. The inability to amend a proposition prior to approval diminishes the likelihood that it will reflect the vast array of intentions and political motives behind an initiative. Thus, it would make little sense to treat the statutory text as an unappealable authority in deciphering legislative intent.90 Moreover, the courts should be allowed to consult any possible interpretive source in their effort to ascertain legislative intent.91 As Jane Schacter’s research demonstrates, in the initiative context, the courts claim that they interpret legislative intent, yet, their practice of placing limitations upon the consideration of evidence prevents them from achieving their proclaimed goal.92 The courts are settling their priorities wrongly by consulting informal sources only rarely and by adhering to formal sources such as ballot pamphlets. Contrary to Schacter’s view, my model endorses the notion that the courts should admit external and informal sources of interpretation. This is what Schacter refers to as the “inverse of informational hierarchy.”93 What the voters had in mind, what initiative sponsors told the voters and how the media portrayed the initiative are all important factors in ascertaining an initiative’s meaning. Media campaign ads, public speeches, polls and expert witnesses are only some of the wide array of possible sources. In fact, such informational sources are more important than


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traditional ones since they are the ones that the voters turn to when attempting to assess a given proposition. It makes more sense for the courts to look at media campaigns than ballot pamphlets. Despite the fact that the latter are published by the state and are therefore somewhat official, it is reasonable to assume that the former play a greater role in shaping the voters’ opinion.94 None of these sources is conclusive but they are all relevant to varying degrees. They are each an important part of the context in which the initiative was conceived. If we want to take the idea of Qualified Respect seriously it is not only unjustified, but foolish, to ignore how the electorate actually made its decisions. It must be noted, as Schacter and others rightfully claim, admitting into evidence huge amounts of informational source material presents the courts with a daunting task.95 It demands that they engage themselves in an endless effort to ascertain the voters’ intent. Nonetheless, I find these objections unjustified. First, prima facie, determining the scope of information to be considered by the courts should flow from the courts’ role as arbiters and not take second place or be determined by reference to the difficulty of the task. If admitting more interpretive sources will help the courts in their interpretive task then it should be pursued. The courts, as always, have discretion in deciding, on a case-by-case basis, which circumstantial evidence carries conclusive weight and which can be ignored; but they should be encouraged to consult any possible source. Second, courts routinely consult a variety of external sources when interpreting ordinary statutes, such as committee reports, floor debates and other source of legislative history. These sources, it may be argued, are too much of general interest and are non-constraining.96 Yet the courts have not refrained from consulting these sources nor does it seem likely that they intend to give up this habit at any time in the near future. If anything, legislative intent in the initiative context should be determined by conscientious judicial efforts to at least the same degree as in the case of ordinary statutes, or – as I would maintain – should receive even greater consideration. The only sure way to ascertain legislative intent, especially in the initiative context, is by consulting external sources.

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Some interpretive canons become less appealing when interpreting initiatives under intentionalist approach. For example, canons that refer to common and technical legal usage or to other statutes are somewhat less persuasive since it is less likely that voters were actually aware of them. If the court’s role is genuinely to decipher voter intent and not to harmonize or seamlessly integrate the new statute, it should avoid hypothesizing in a way that ignores or fails to take full account of the actual initiative process.97 If the people’s intent is the epicenter of statutory interpretation, courts should avoid making interpretive maneuvers that circumvent that intent. Thus, a canon that suggests courts should avoid constitutional problems when interpreting statutes is less appealing in the initiative context. When facing an interpretive difficulty courts should do their best to ascertain the people’s intent. If it is found to be constitutional then it should be given full respect. Yet, if it is unconstitutional, there might be no choice but to invalidate it. The avoidance canon can play a role as long as it is a tiebreaker or when voter intent is genuinely unattainable. Then, its role is appropriate since no disrespect for the voters is involved. Thus, all other things being equal, a court facing two equally valid interpretations both proponing the people’s intent to the same degree, should prefer the constitutional interpretation. But the avoidance canon becomes inappropriate when it is used as a tool to circumvent and mold the people’s actual intent.98

II.

Initiatives and Narrow Construction

In this section, I shall combine my argument about initiatives and intent with the argument that initiatives ought to be construed narrowly. Taken as a whole, the idea of Qualified Respect in the interpretive context implies that initiatives ought to be given the narrowest reading possible in light of the underlying legislative intent. This should always be seen as a part of a larger model in which initiatives are given higher normative status within a well defined and minimal statutory scope. It would be wrong to restrict the scope of an initiative without giving full play to its greater normative weight as this would fail to take into account the


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importance of the people’s sovereignty and it would tend to increase popular political dissatisfaction by unjustifiably giving short shrift to the popular will. Only when the narrowing down element is considered as a component in a larger scheme does its legitimacy become fully evident. But it is precisely narrow intentional interpretation that justifies a higher status for initiatives. In other words, since initiatives are interpreted to give effect only to a minimal core of the clear and unequivocal intent of the people, to the extent we want to express respect to the people’s will, it makes sense that that core should be treated with greater respect and be given higher status. By arguing for the narrow interpretation of initiatives I mean that they are to be given readings that minimize their scope of statutory application.99 Narrow interpretation is sometimes called strict interpretation. Yet, strict interpretation, as a concept, allows for various meanings. For example, strict interpretation sometimes refers to interpretation that focuses on textualism or plain meaning of the wordings.100 However, interpreting a statute for its strict textual meaning need not always narrow the scope of the statute’s application.101 The word “specie” is very precise and taken literally applies to a great set of cases. Literalism simply means sticking to the literal meaning of the words, but with the danger of ignoring their context or purpose. By narrow interpretation, I mean specifically limiting the application of the initiative to a minimal and closed set of instances. I therefore prefer to use the term “narrow interpretation.” What is certain is that I must offer justifications for such a statutory default rule because the purpose of a statute is to effect change and an abstract narrowing down rule of interpretation may have a counter-tendency to thwart this purpose. Whether interpretation is cognitive or creative, or both, a preference for narrow readings must be based on normative grounds. It must be based on arguments that are not within the interpretive process but extraneous to it. It must be a based on an argument about statutes in general and initiatives in particular. Indeed, there have been previous attempts to prescribe narrow construction rules for statutes in general and some plausible arguments for narrow construction of ordinary statutes have been

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offered.102 My claim is that most of these arguments apply with at least the same force to the initiative context and that there are additional strong arguments for such an approach in the initiative context, which I will discuss.

a.

Narrow Construction and Rational Legislation

A fundamental difference between ordinary legislation and initiatives is their respective legislative mechanisms. A proposition, or initiative, is circulated for signatures and it cannot be changed without starting the process anew. That makes sense: people who were willing to vote for one version of a bill may not be willing to vote for a different version. Assuming it meets all other legal requirements, the first draft of an initiative proposal is the one sent to the ballot. In ordinary legislation, a bill may be changed by committee members and can be further qualified by members of the legislative houses. Quite often, an initial bill will bear little resemblance to the final product. Endless discussions and debates lead to its refinement and improvement. Field specialists throw in their insights and comments, and special interest groups and other interested parties add their observations. These mechanisms are invaluable. They ensure that a bill can be amended to meet varying kinds of challenges and a host of unforeseen issues. If the initial product is somewhat raw, the final product is fine-tuned and balanced to meet the various interests and challenges, a product of the face-to-face deliberative process inherent in ordinary legislation. A parallel mechanism is absent in the initiative context. Initiative sponsors lack any ability to refine a proposal even where they truly think it would be more appropriate to send a revised bill to the ballot. The only alternative they have is to start the process all over again, which means getting new state approval for the circulation of a new draft and then collecting the signatures all over again. This process is tiresome and expensive and thus, it would be unreasonable to assume that proposition sponsors facing the choice of whether or not to amend will choose to do so. Most likely, as long as their main objectives are being achieved by the current draft, most sponsors will not undertake the risks entailed in a new campaign with all the additional expenses and risks involved.


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As a result, we can expect they will prefer to submit an unperfected draft to the ballot rather than assume the risk involved in restarting the entire process all over again. What we have then, is a legislative mechanism that increases the risks of unrefined statutes. Even if the main objective of the initiative is clear and reflects the people’s political preferences down to a minute technical level, it may be lacking in the flexibility necessary to meet the challenges typically faced by any piece of legislation. Narrow purposeful interpretation addresses these problems. While adhering to the clear intent underlying the statute and applying it with greater force within the statute’s domain, narrow construction can alleviate the potential flaws of unrefined legislation. Interpreting an initiative narrowly minimizes its unforeseen legal impact. It diminishes the impact of the statute outside its intended area of application. As a result, any unforeseen implications, any undesired side effects, which in the ordinary legislative process would likely be removed, will be minimized here by the courts. By narrowing down initiatives, the courts can pay more attention to what is needed most. A prima facie rule of narrowing down initiatives does, however carry risk. Narrowing a statute’s scope will weaken its legal impact and has the potential to lessen the effects of some desirable legal implications, predicted and unpredicted. However, there are several answers to this problem. First, the risk of reducing the desired legal impact should be balanced against the far greater risk of undesired consequences. When a legislature legislates, it attempts to address a specific issue, or bundle of issues, an identified “problem” or mischief. Legislatures also worry about the unintended side effects of a statute, although they are more likely to focus their efforts on solving the issues immediately at hand than on preventing legislative fallout. But it is almost inevitable that a statute will entail unforeseen side effects, which are little to be desired. Even if such unforeseen results could, on occasion, be tolerated on policy grounds, we should always prefer a system in which change is predictable and planned, not unintentionally achieved since, as rational human beings, we should want our actions to be well calculated and sensible. Legislators can never predict all the unanticipated ramifications that new statutes may

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present, if at all they are likely to be troubled by such possibilities. Hence, by interpreting statutes narrowly the judiciary minimizes the risk of unforeseen results and contributes to the rationality of the legal system. This point is even more telling as applied to the initiative context where the legislative mechanism does not allow for refinement and change. By contrast, the mere fact that legislators are able to devote the considerable resources necessary to dealing with potential unintended uses of their bills decreases the likelihood of unpredicted errors. This cannot be said of the initiative process since the risk of undesired legal effects is much greater in the initiative context than with ordinary legislation. That is why narrow construction of initiatives, even at the risk of circumventing some desired goals is much to be preferred. Second, the role of identifying what is, and what is not, a desired legal implication of a statute in general, and of an initiative in particular, is often value laden and a matter of policy. Asking the courts to construe narrowly only when facing undesired side effects would grant them the role of policy makers. Even if one were to claim that this is justified with respect to ordinary statutes, it is doubtful that there is any justification for it in the case of initiatives, where the courts must be guided by legislative directives handed down directly by the people. In such a case, if anywhere, the courts should abstain from playing too active a role by refraining from unnecessarily making policy via interpretation. A blanket rule of narrow construction would save the courts harmless from the accusation of legislating by judicial decision. It would minimize any tendency to make value-based decisions and increase the neutral procedural component of the judicial process.103 When narrow interpretation is put into the broader context of the judicial model I propose, one that grants initiatives higher normative status, the blanket narrow interpretive rule of construction will not be seen to be a mechanism that diminishes the legal effect of initiatives as such. It only addresses the procedural flaws of the process by limiting the scope of the statute’s application. Granting initiatives more normative weight within a delineated statutory scope may actually entail significant legal change. However, this change is more guaranteed to be what the people desire. Thus, the narrowing down interpretive rule is


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justified specifically because it is part of a larger context where the attempt is not to thwart the people’s will but to conform to it within clear and less questionable limits. Finally, a blanket rule of narrow construction, like most other legal rules, is never definite. It is a presumptive rule and may be overridden when other rules or considerations so require.

b.

Narrow Construction and Popular Will

Another justification for the narrow construction of initiatives is that, compared to liberal interpretation of statute, narrow construction more closely approximates the popular will. As with any piece of legislation, initiatives reflect political equilibrium, particularly in the sense that initiative sponsors know that they need to gain wide popular support for their propositions, which causes them to aim at what the voters want. But voters vote for a proposition for many different reasons and individual voters’ readings of a proposition vary. Some voters read a proposition narrowly, some read it broadly. A narrow construction of an initiative increases political satisfaction since it guarantees that only the clear consensual understanding of the proposition is applied, nothing more.104 Another reason that narrow construction is especially appropriate to the initiative context is that judicial interpretation is much more critical to the initiative than is the case with ordinary statutes. When a court interprets an ordinary statute, implicitly it becomes a part of the back and forth between the judicial and legislative branches of government. Accordingly, if the legislator is displeased with a given interpretation of a statute given by the courts, it can amend that statute. Some statutory canons should be seen in this light, as a means of eliciting legislative reaction to judicial interpretation.105 Yet, such discourse is absent in the initiative context where mobilizing popular reaction is more difficult. Hence, in the case of initiatives, initial judicial interpretation is more crucial. It is less likely to elicit popular interest and more likely to enjoy additional pedigree over time. Consequently, the courts should employ extra care when interpreting initiatives.

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c.


Narrow Construction and Initiative Drafting

The narrow construction of initiatives promotes better drafting of propositions. Because drafters know that once their proposition is circulated it cannot be amended, they have an incentive to make the effort to produce the best draft they possibly can. Nonetheless, as Schacter has pointed out, there is a danger of voter manipulation with regard to propositions drafted using technical terms and legal concepts unfamiliar to the average voter which are promoted by a well-tuned propaganda campaign.106 For the layman, technical terms may mean less than they actually seem to. If the courts interpret initiatives broadly, they may increase the potential for voter manipulation by giving statutes a scope of application broader than the expectations of the average voter. By contrast, where the courts construe initiatives narrowly, they avoid such manipulation. Initiative sponsors who intend more than they draft into their proposals, thus will not be able to rely on the courts to read into their initiatives meanings that never surfaced during the campaign for the initiative’s passage. Narrow construction of initiatives will force initiative sponsors explicitly and clearly to express, in the proposition itself, its limits and domain.107 Other things being equal, courts will refuse to interpret vague and ambiguous language to broaden the scope of a given statute. Initiative sponsors and drafters will come to realize that if they desire specific legal changes, they must be clearly delineated and expressed in the language of the proposition itself. Whereas elected legislators have better resources to grasp the implications of a bill, the average voter is less likely to fully comprehend the potential scope of an initiative. Narrow construction of initiatives by the courts decreases the likelihood that the voters will be caught by surprise and will force initiative sponsors to draft their propositions more clearly and candidly.108

d.

Narrow Construction and Constitutional Deference

I have conceptualized initiatives as intense expressions of the popular will while at the same time recognizing that they are


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generated in a unique legislative environment that is inflexible. My model attempts to reflect these features by giving initiatives the respect due them without ignoring their inherent procedural imperfections. Hence my call for initiatives to receive a higher normative status within a well delineated, and minimized, statutory domain. These two elements of my model not only reflect the inherent underlying impulses of direct legislation, they also justify one another. Granting a higher normative status to initiatives justifies limiting their scope of applicability. But if initiatives are granted a higher normative status, absent narrow construction, the risk of an overly powerful set of statutes is increased. Not only will initiatives enjoy more normative weight, they will also be applied to a greater number of circumstances. Narrow construction of initiatives, in this light, is justified then by the commitment to give initiatives their due respect by granting them a higher normative status, while at the same time acting to minimize unforeseen consequences. From the opposite direction, narrow construction of initiatives justifies granting them greater normative force. If the people’s will is seen as something that deserves respect, narrow construction serves this goal since it ensures that only the clear intent of the people, nothing more, is actually being given higher normative status. Aside from the arguments I outlined above, there are some general arguments for narrow construction of ordinary statutes. Some of these arguments can be applied to initiatives as well, even if their persuasiveness is not necessarily strengthened by applying them to the initiative context. David Shapiro lists some such arguments.109 He claims that canons of interpretation, in general, are biased in favor of preserving the status quo and offers justifications for this bias on normative grounds. Linguistic theories suggest that when a person issues a directive he will say only what is necessary for his specific purposes, no more.110 Moreover, in at least most matters, people tend to be risk averse.111 These two premises lead him to conclude that when in doubt as to the meaning of a directive issued from a legislature, elected official or electorate, we are more likely to fulfill its intent if we prefer the minimum change result.

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Taken at face value, Shapiro’s argument cannot be applied to the initiatives context as-is. Shapiro’s continuity bias differs from my proposal. True, my proposal is certainly to minimize the perimeter of the statutory application. However, within that domain the statute should enjoy greater normative thrust. Thus, under my theory, continuity cannot be guaranteed since the greater thrust given to the initiative, even if contained in minimal domain, may promote more change in legal topography. My theory is grounded on the inherent rigidity of the initiative legislative procedure, not on the need for continuity. It focuses on understanding how the flaws inherent only to direct legislation can be mitigated. Shapiro further claims that by adopting a conservative interpretive mode, the values of fair notice and predictability are well-served. With narrow construction of statutes, there is less of a chance that people will be unfairly surprised by a new legal status. Strict construction will thus lead to better planning on part of the citizenry.112 Despite some cursory similarities, this argument is substantially different from the one I made earlier concerning the satisfaction of the people’s expectations.113 Shapiro’s argument targets the people’s expectations as citizens playing by legal norms who prefer continuity and only gradual change. Yet, the argument I presented above targets the people’s expectations as legislators of initiatives who enact laws with certain sets of expectations as to what their legislation actually means. Shapiro claims that narrow construction of statutes will increase legislative confidence that its legislation is not artificially extended by a pro-active court system. In turn, this will serve to diminish reluctance on the part of lawmakers from legislating since fears about “activist” judges would be alleviated. The applicability of this argument to the initiative context is somewhat qualified. While legislation is the legislature’s main role, it is not the people’s primary function. Accordingly, enhancing the motivation of the people to legislate is a less tenable justification for narrow construction than it is with ordinary legislation. Shapiro also argues that political make-up might also support a conservative interpretive approach since “in an era of diminishing entitlements, much legislation is designed to cut back not on


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traditionally protected interests but on ‘new property’ rights and expectations. A great deal of such legislation, as advocates of various modern theories will hasten to tell you, involves transfers from groups with relatively low levels of legislative clout to groups with relatively high levels of the same.”114 While in the past, it might have been true that legislation attempted to transfer from the “haves” to the “have-nots,” it is no longer always the case today. A narrow interpretive approach might serve to minimize the consequences of this undesired phenomenon.115 To the extent one finds this argument plausible it might be applied to initiatives as well.

e.

Narrow Construction: Method and Doctrine

The task of narrowing down the statutory scope of initiatives cannot be accomplished without the aid of interpretive canons. As Shapiro argued, canons of construction inherently favor preserving the status quo. As I qualified earlier, my model does not prescribe continuity per se. Instead, it suggests initiatives be given a greater force, but within a narrowed application domain. Thus, it is inaccurate to assume that canons securing continuity would automatically advance my model. Only insofar as canons of construction actually limit the statutory domain should they be seen as advancing the proposed model. Hence, only some of the canons typically identified with preserving the status quo fit within the theory. Here is a partial list: 1. inclusio unius or expression unius est exclusion alterius – This canon limits the scope of a statute or a section within it to those instances it explicitly mentions. By decreeing that the list of instances listed in a statute are exhaustive, the statute’s domain is contained. This maxim is so well rooted in our daily practices, both inside and outside the law, that its significance has been somewhat neglected. Its importance is underscored by the fact that we make such frequent, albeit unnoticed, use of it.116 2. Ejusdem Generis – the canon indicates that “words often take their shape from those around them, and is frequently invoked to suggest that a phrase which in isolation appears to have a broad

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scope should be construed more narrowly when considered in its linguistic setting.”117 Shapiro brings the following example: Take a statute that forbids the presence of “cats, dogs, and other animals” in a certain public park. If the statute had referred to “cats, dogs, and other such animals,” it would be reasonably clear that it did not cover a horse ridden by a mounted policeman, but rather was limited to personal pets. If it had said “cats, dogs, and any other animal of any description and for any purpose,” it would be hard to argue that the statute allowed the police horse to go into the park, though one might wonder why cats and dogs were even referred to in such a comprehensive statute. Given the intermediate language actually used, however, the maxim serves as a gentle reminder-one perhaps not too difficult to overcome-that a better understanding of the statutory objective may be gleaned from the specific examples used, and that once that purpose is understood, the case at hand may be seen as falling well outside it. In other words, it may be inappropriate to read the statute as changing the applicable rules as broadly as each word, taken in isolation, might suggest. Once again, then, the maxim underscores a preference for continuity: not every animal that could lawfully be brought into the park before this statute was enacted is necessarily excluded by it. 118 3. Clear Statement Canons – These canons reflect the idea that the legislature can achieve a particular result only by explicit statements. Accordingly, they work to avoid finding a result that is merely implicit in a statute’s design. If statutes, and even more so initiatives, are meant to change the legal status quo, then judicial demand for clear statements will result in a narrowing of the statutory domain. A demand for clear statements raises the costs of legislation, placing another hurdle in the legislative process.119 4. The Rule of Lenity – This canon reflects the desire to ensure that criminal law is not extended too broadly. Thus, in cases of doubt, criminal statutes would be interpreted narrowly. Since criminal statutes, by definition, change the legal order by rendering certain actions illegal, a reluctance to do so, absent clear statement from the legislature, will limit statutory scope.120


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5. Strict Construction of Statutes in Derogation of the Common Law – The canon “reflects the importance of reading a new statute against the legal landscape and, in doing so, of recognizing the value of minimal disruption of existing arrangements consistent with the language and purpose of the new law.”121 To the extent this canon circumvents statutory scope it is a desired tool in the initiative context. 6. Statutes Invading Existing Property or Contract Rights Should Be Narrowly Construed - Like previous canons it serves as a judicial tool for minimizing the interference of regulation in the private spheres. 122 Here, too, in the initiative context this canon should be used in order to limit statutory scope. 7. No Retroactive Legislation – This canon is grounded on justifications from the rule of law. Yet, in the initiative context, it should enjoy a more prominent position. Applying a statute retroactively, by definition, broadens its statutory application scope. Since the dangers of retroactive legislation are somewhat exacerbated in the initiative context, which inherently suffers from rigidity and the inability to be fine tuned, and since the danger of unforeseen retroactive implications of an initiative are more immediate, courts are to be more reluctant to apply an initiative retroactively absent clear statement. 8. No Application by Analogy – Courts often use statutes as a source for analogy and creation of judicial rules to be applied in circumstances explicitly outside the statutory scope. When applying a statute to given circumstances requires too much interpretive maneuvering courts might prefer to apply the statute’s underlying rationale without applying it on the facts. Here, they are not engaged in statutory interpretation but in judicial legislation. To the extent initiatives are involved, courts should avoid this. Even if this is not purely an interpretive activity the courts here are extending the scope of the statute beyond its original intent. Faithful to the idea of Qualified Respect courts should allow the legislature, or the people, to resolve issues lying outside the clear statutory scope of a statute. The theory of Qualified Respect implies first that initiatives are interpreted under intentionalist approach. The second interpretive implication, that is, narrow construction, is subordinate to


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intentionalism. As I argued, narrow construction can actually serve intentionalism in the initiative context by delineating the definite popular will.123 Nevertheless, intentionalism and narrow construction can sometimes be in conflict. Thus, for example, a clear statement canon advances narrow statutory scope. Yet intentionalism focuses on extra-textual sources that would run counter to the clear statement canon. In such cases, the theory of Qualified Respect implies that the intentionalist impulse should prevail. So, for example, when an initiative is perceived by the public to be repealing another statute, but the initiative itself is absent a clear statement expressing that, courts should respect the people’s intent and prefer the more extreme reading. Thus, canons aiming at narrowing down statutory scope should not be taken to override clear legislative intent. Qualified Respect has other implications to statutory interpretation and I will now turn to present these implications.

III.

Conflict of Statutes

Courts are sometimes faced with conflicting statutes. When a new statute is incompatible with an older statute or when an application of two overlapping statutes leads to conflicting outcomes, the courts are faced with a dilemma. Indeed, courts have developed interpretive rules for overcoming such difficulties. Accordingly, a new statute will usually override an older one and a specific statute will override a general statute.124 The concept of Qualified Respect should be reflected in these interpretive guidelines.125 Since the theory suggests that once initiatives are interpreted narrowly they are also given a greater normative thrust then this should be reflected when they are juxtaposed vis-à-vis ordinary statutes. As a result, the rule that courts will not approve repeal by implication should be rigorously applied when an initiative is at stake. Repealing, or amending, an initiative should be allowed only when the legislature is doing it explicitly and directly. Perhaps something like an overriding clause is necessary when the legislature desires to supersede the will of the people as it is manifested in an initiative. In any event, courts should be reluctant to prefer ordinary statutory norms over norms that are grounded in initiatives. In a similar


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vein, in a conflict between a general statute and a specific statute courts should be less reluctant to apply the latter if the former is an initiative. In addition, the demand for a clear statement when amending or repealing other statutes, should be relaxed when an initiative is the repealing statute. This reflects the fact that initiatives are intended, prima facie, to change the status quo, rather than to leave it unaffected.126 It also reflects the notion that the intent behind the initiative is more important than adhering to its exact wording.

IV.

Stare Decisis and State Courts

If the doctrine of stare decisis is to mean something it must be that “[t]he previous treatment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs.”127 Thus, even if current judges think previous application is erroneous there are, at least prima facie, reasons for not deviating from precedent.128 We can identify several main justifications for the doctrine of stare decisis. First, it is argued that courts that are closer in time to the enactment are better situated to pronounce the statute’s real meaning. The farther in time we are removed from enactment time the less certain we can be that our reading of the statute is in accordance with its original intent. Thus, subsequent courts should be reluctant to overturn a longstanding judicial interpretation of a statute even if they assume that its current interpretation is wrong.129 Second, stare decisis serves the rule of law. By being reluctant in overturning well established precedents citizens are given fair notice and their ability to plan in advance is enhanced.130 Third, judicial persistency promotes equality and serves to maintain public trust in the judiciary. When courts get into the business of overturning their own precedents suspicion may arise as to the current court’s political motives. But when precedents are honored, even at the price of reaffirming judicial mistakes, the concept of impersonal judgment unchanged with time and circumstances is honored.131 Fourth, a settled construction of a statute, to a very large extent, becomes part of the statute itself. Thus, subsequent judicial twiddling amounts to judicial usurpation

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of the legislature’s powers.132 Lastly, stare decisis saves judicial resources since it helps courts avoid reconsideration of similar cases from scratch all over again. By resorting to precedents courts are more efficient.133 The idea of stare decisis becomes more appealing in the initiative context. As I argued above, the unique character of initiative statutes demands consultation with a wide variety of informal interpretive sources. The main task of the courts is to discern the people’s intent behind the initiatives. For this, they must consult voter pamphlets as well as media campaigns, exit polls and the like. Turning to these sources is essential in an interpretive task that attempts to discover a political mindset at a certain period and place. Statutory interpretation, here, becomes a matter of archeology. Precisely because of the unique nature of this interpretive task in the initiative context we are justified in assuming that courts that are closer in time and place to the point of approval, and to the campaign preceding it, are in a better position to offer the initiative its most genuine reading.134 Interpretation of ordinary statutes is of a different character. Ordinary statutory interpretation is not about capturing the legislative mindset and therefore the interpretive sources of ordinary statutory interpretation comprise a closed, smaller, set. Legislative history is limited to formal materials and access to these is not diminished with time. Thus, the proximity in time to the actual enactment is less relevant in the attempt to interpret the statute best. In fact, as some claim, the role of courts is to make sure statutes are interpreted in accordance with the changing times and circumstances, or else they might turn irrelevant and obsolete. The stare decisis doctrine might prove to be an obstacle in the courts’ job of updating old laws. But the theory of Qualified Respect bans this judicial role in the initiative context. Initiatives are to be taken as what they were meant to be by their legislators and courts should enjoy less elasticity in updating them in light of new times and changed circumstances. Courts are not in a position to ensure they do not become obsolete. Instead, courts should do their best to stick to the original intent even at the price of affirming bad law. And this is why a heightened stare decisis is appropriate in the initiative context.


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This has led some to argue that stare decisis should carry more weight in statutory interpretation and less weight in constitutional cases.135 In the former case, where courts serve as sole arbiters of the constitution they should be less constrained by past decisions. But in ordinary statutory interpretation, courts are affixing meaning to legislative utterances and their role is subordinate to that of the legislature. This rationale suggests an even stronger emphasis for this doctrine in the initiative context. As the theory of Qualified Respect implies, here, even more than with ordinary statutory interpretation, the role of the courts is secondary to that of the people as legislators. Hence, deviation from past precedents that have become part of the law reflects deeper disrespect for the sovereign people. The rationale stressing trust in the judiciary as an incentive for sticking to precedents is also strengthened in the initiative context. As initiatives are a reflection of the will of the people, courts should avoid tampering with their meaning. Deviance from the stare decisis doctrine might carry greater implications to the public perception of a judiciary that abandons its own precedents regarding initiatives. This might seem like a judicial imposition of political will at the expense of the people, and in the initiative context, this is especially undesirable. Finally, from an economic standpoint, precisely because interpretation of initiatives is unique in the sense that it involves resorting to extensive informal resources, there need to be extremely good reasons for overturning a precedent. Stare decisis is justified, among other things, in its desire to avoid repetitive judicial inquiries and investigations. In the initiative context this desire is more sensible due to the high costs such investigations entail. Similar rationale suggests that federal courts should be more deferential to state courts’ interpretation of initiatives. Initiatives, after all, occur only at the state level. Due to the unique character of the initiative, state courts are in a better position to approximate the original intent behind the initiative. If interpreting initiatives is about assessing the public mindset of the people approving it, it is only natural to assume judges who are part of the polity approving it, are in a better position to derive its most accurate interpretation.

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It is reasonable to assume that, prima facie, state judges better know the details behind the initiative and its aims, have had more time and interest in investigating the proposition and its encircling campaign, and in all likelihood have better access to the overall mindset of their fellow state residents. Moreover, the distinct character of initiatives, being the ultimate word of the state residents, suggests that when a federal court overrides state courts’ interpretation of an initiative, the political dissatisfaction would be greater than if an ordinary statute had been involved. Precisely because initiatives are not available in every state or on the national level, federal judicial intrusion might perhaps be more troubling and frustrating. Thus, the theory of Qualified Respect suggests that federal courts should defer more to state courts’ interpretation of initiatives and avoid tampering with local political choices.136 I have attempted to demonstrate the implications of the theory of Qualified Respect in the area of statutory interpretation. I argued that it implies initiatives are interpreted in light of the people’s intent and that they are interpreted narrowly. I also argued it has implications on rules governing conflict of statutes and on doctrines such as stare decisis. The underlying rationale is that initiatives are given more normative weight within a minimized and well delineated statutory domain. I will now turn to inquire how, and why, doctrines of judicial review should be modified to reflect Qualified Respect toward initiatives.

CHAPTER 5:

QUALIFIED RESPECT AND JUDICIAL REVIEW

Judicial review poses serious questions to democracy.1 The counter-majoritarian difficulty, i.e., the ability of an unelected few to invalidate the political preferences of the many, must be justified.2 In this vein, it seems that judicial review of initiatives presents an even more difficult problem. After all, invalidating a statute enacted by elected representatives is one thing, invalidating a statute enacted directly by the people is another. Despite the significant amount of literature on judicial review in general, judicial review of initiatives, like other legal issues involving initiatives, has not received a lot of academic attention.3 Courts also seem to ignore any possible difference between judicial review of ordinary statutes and judicial review of initiatives. As a result, no initiative-specific doctrine of judicial review has been developed by the judiciary.4 However, some writers claim this is unjustified.5 In reviewing initiatives, the claim goes, courts should modify their working tools; while most writers argue for a harsher judicial review of initiatives, my claim is more sophisticated since I argue for relaxed judicial review after voter approval and heightened judicial review prior to elections. I argue that the case for judicial review should not remain unaffected when transformed to the initiative context. The idea of Qualified Respect suggests that they are given higher normative status within a minimized statutory domain. With regards to 99

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judicial review this has three main implications. First, it entails that courts should invalidate initiatives as a last resort only, and thus reflect judicial respect to the people as sovereigns. Courts should always prefer other means and, as a rule, avoid post-election judicial review of initiatives. There are several methods for achieving this and I will present them below. Second, it implies that courts exercise pre-election judicial review on substantive grounds. Precisely because post-election judicial review is not desired, pre-election review is needed in order to compensate for the absence of review after the proposition has been approved. Moreover, some of the arguments against pre-enactment judicial review of statutory bills are seriously weakened in the initiative context. Finally, I argue that the rational basis review standard should be modified in a way that reflects the essence of initiatives and grants them more deference. To see why these prescriptions are justified we should first consider justifications for judicial review in general. We must unveil underlying justifications for judicial review and evaluate how they play out in the initiative context and then assess whether judicial review of initiatives exacerbates, ameliorates, or simply leaves unchanged the problems that judicial review poses for democratic and constitutional theories. The main difficulty with judicial review, or the one that seems to occupy American constitutionalism most, is the one described by Alexander Bickel, as the counter-majoritarian problem.6 Simply put, the difficulty lies in the fact that the judiciary, comprised of an unelected few, is allowed to impose constitutional constraints on the political will of the people as it is reflected through the representative process. At first sight, this seems counter intuitive and undemocratic, at least if we see democracy to be primarily about the people’s self rule. Several routes can be taken in meeting the counter-majoritarian challenge. First, it can be argued that the courts are, in fact, representing the will of the people. That is, when invalidating statutory enactments of representatives by reference to the Constitution the courts are actually making sure that elected representatives are doing their job correctly and that they are not misrepresenting the people. As the Constitution embodies the

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genuine will of the people, the courts are acting as mere agents of that populace and are carrying out their will against the partisanship of their representatives. Under this view, the counter majoritarian difficulty no longer exists since, in fact, it is the act of judicial review that embodies the will of the majority. This view can be traced to the Federalist No. 78.7 Another approach involves the recognition that American democracy is not at all about simple majority rule.8 It is interested in true representation of the people and in guaranteeing the people fair access to the political process9 as well as the protection of minorities.10 The court’s role is to ensure that these, as well as other fundamental rights, are not compromised by the majority. The courts are “policing the process of representation.”11 The role of the judiciary is of a monitoring referee guarding against violations of the fundamental rules of the game by temporal majorities. Under this approach, the courts do not necessarily represent the people’s will by practicing judicial review. Nevertheless, the Constitution is not only about voicing the people’s will but it is also about securing some fundamental rights and privileges precisely because of the fear that the majority might sometimes attempt to override them. Under this view, the counter majoritarian difficulty is not resolved but recast. It is no longer a difficulty, but rather a panacea for potential democratic malfunction.12 An approach that is offered by Bickel himself is that the courts are institutionally better positioned to decide cases by appeal to “values we hold to have more general and permanent interest.”13 Legislators are more likely to base their decisions on immediate pressures and emotions. The court’s insulation and training allows the judges to better contemplate and envision political decisions.14 The courts’ decisions are based on evolving morality, underlying traditions, and thoughts and visions of society. Ultimately, courts are engaged in a discourse with the legislature and their word is never final, at least in the sense that legislators can respond by further enactments. The court is “a court of last resort presumptively only.”15 Thus, the courts’ role is to reach decisions that may not be the people’s actual will, but are justified by their appeal to principles. And even here the court must always lead, but

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not run ahead – “it must lead opinion, not merely impose its own.”16 The question then is whether judicial review of initiatives is unjustified in light of the aforementioned justifications. We should also keep in mind that many state judges are in fact elected by the people. Accordingly, the difficulty involving the ability of an “unelected few” to invalidate the will of the many seems to be removed. Nonetheless, it seems that the case for judicial review of initiatives is weakened if one overcomes the counter-majoritarian difficulty by assuming that judges, even if elected, are in a better position to represent the people’s will. Direct legislation is a better approximation of popular will, and after all, representatives can misrepresent, thus courts are required to provide a check against them by reference to the Constitution that arguably embodies the people’s true will. But the people can not misrepresent themselves. Invalidating initiatives in the name of the people’s genuine will seems unsound, even when this is done by reference to the Constitution and by elected officials.17 Yet, reduction of judicial review to an exercise of the people’s will is too simplistic and perhaps even unpersuasive. The notion that the courts are in fact reflecting the people’s will by striking down legislation is an “abstraction obscuring the reality.”18 As Bickel has put it, when a court exercises judicial review it “thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens.”19 Once the act of judicial review is not seen as expression of the people’s will but rather as an institutional act that is to balance against or supplement it, the legitimacy of judicial review of initiatives is untouched and perhaps even more justified.20 Initiatives, like ordinary statutes, can infringe on constitutional values. Judicial review then, as a means of a check, is just as necessary. Constitutional doctrines such as equal protection are invoked to protect constitutional values upon which the contents of a given statute might infringe. For that matter, it makes no difference whether that statute originated from the people or from their representatives. Thus, statutes inappropriately targeting


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suspect groups deserve special treatment regardless of the legislative process that produced them. A statute discriminating against a racial group should be invalidated whether the people or the legislature enacted it. The same constitutional values are being infringed in both cases and the remedy should be similar. If doctrines such as equal protection are seen as a check against the majority will, invalidating initiatives is firmly justified.21 But even if, as in cases of attacks on constitutional values, judicial review of initiatives is theoretically justified, there are two main reasons why it should be exercised differently. Judicial review runs counter to the underlying rationales of direct legislation and assumes a judicial-legislature discourse that is absent in the initiative context. First, the act of judicial review, even if sometimes justified, is an act that increases political dissatisfaction in a given polity. The act of judicial review, as Bickel rightly described, thwarts the will of the majority, it does not represent it. As James Bradley Thayer put it, [The] tendency of a common and easy resort to this great function [of judicial review], now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.22 This argument is sound with ordinary legislation and it is even stronger with initiatives. The theory of Qualified Respect is grounded on a specific view of initiatives as a vehicle for expressing intense political preferences. Initiatives are not conventional legislation and they should be reserved for exceptional cases.23 When the people legislate, it is an act of last resort, a check against their representatives or an attempt to restore political satisfaction. That is why here, prima facie, judicial review is more problematic. Judicial review of initiatives is a serious act of thwarting popular will precisely at the point where the people feel their will has been disregarded. The initiative process is a tool specifically designed to express unfiltered popular will when such expression is exactly what is absent in political status quo. As one judge has put it “[a] system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.”24 Judicial review here is

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counter to the underlying rationale of direct legislation by its ability to contribute to political dissatisfaction. Even if one does not submit to the fact that initiatives are better approximations of popular political preferences, one must admit that they are perceived by the public to be just that.25 As I argued in Chapter 3, initiatives are perceived by the public and by politicians to be more than just ordinary statutes. They are perceived to be more reflective of the people’s will and they are perceived to increase self rule. The validity of these popular perceptions is irrelevant to the fact that judicial review of initiatives will be perceived by the public as interfering with the people’s political preferences and preventing real self rule. For that reason alone, judicial review of initiatives should somehow be modified.26 In fact, a case could be made that the courts role in the initiative context is to guard the people’s interests from their representatives. Generally, one of the judiciary’s underlying responsibilities is to ensure statutes represent the people’s interests.27 Statutes are sometimes seen as obstacles in securing the people’s interests since the legislature can fail to represent and can enact irresponsibly. But in the initiative context that fear is unfounded since the statutes are the people’s interest. In fact, as some suggest, officials tend to only partially implement initiatives.28 Initiatives, as such, are not normative obstacles, but means of self rule. If initiatives serve as a check against the legislature then the court’s role should not be to guard the people from nonrepresenting legislation but, instead, to guard the legislation of the people from political institutions who might attempt to thwart it. The second reason for modified judicial review lies in the fact that judicial review is sometimes presented as judicial participation in a discourse with the legislature. In such discourse, the judiciary can strike down statutes and elicit legislative action.29 This somehow diminishes the impact of judicial review since, in the end, the court’s invalidation is only presumptive.30 However, this depiction is inadequate in the initiative context as initiatives are not a routine tool of legislation and, in many ways, they are harder to legislate. After all, it is hard to mobilize ordinary people, and initiatives, in general, are expensive and require significant private resources. Thus, legislation by the people is not an easy task.31 It is


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no wonder that initiatives are far less common than ordinary statutes. As the theory of Qualified Respect implies, they are a tool of occasional application; they are the exception not the rule. Therefore, if judicial review is based on institutional discourse, the transformation to the initiative context must be somehow reflected. Current practice is that courts have refrained from developing unique judicial review standards for initiatives.32 Despite some judicial rhetoric, the courts ignore the differences between popularly enacted statutes and ordinary statutes.33 Most writers oppose this trend and many claim initiatives create bad law, primarily because of their potential to discriminate against political minorities, and should therefore receive a harder judicial look.34 A “harder judicial look” is usually translated into modification of Equal Protection doctrine in a way that allows the judiciary to invalidate initiatives more easily. Others claim that there are no satisfactory justifications for scrutinizing initiatives under different review standards.35 My argument is that standards of judicial review should be modified in the initiative context to reflect Qualified Respect. By adopting prescriptions derived from the concept of Qualified Respect courts will advance the purposes of direct legislation. They will treat it in accordance to its underlying justifications and principles, at least as these are conceptualized under the theory I propose. Yet, modified judicial review should not be perceived in isolation from other prescriptive aspects of my theory, specifically those in the context of statutory interpretation where I argued for minimizing the application scope of initiatives. Only when these aspects are considered together can they best reflect the essence of direct legislation. Adopting one component in solitude will fail to reflect the unique nature of initiatives and is thus unjustified. Let us now turn to a closer analysis of the several implications derived from the idea of Qualified Respect in the area of judicial review.

1.

AVOIDING POST-ELECTION JUDICIAL REVIEW

The immediate implication of granting initiatives Qualified Respect means that, within a well delineated and minimal statutory scope,

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they should enjoy higher constitutional status. This is to say that courts should avoid invalidation of initiative statutes at almost all costs. Avoiding judicial review of initiatives is achieved by judicial adoption of several already existing tools. It is important to note that these tools are readily available and the courts are already using them in other contexts. My argument is that such tools should be utilized in the initiative context more frequently and that some of them must be modified so that they better fit into their new legal environment. By suggesting more judicial constraint I am not in any way rejecting the notion of judicial review altogether. After all, democracy is not solely about the people’s will; at times the people’s will must be contained. The court sometimes has no alternative and must exercise judicial review, even at the cost of increasing political dissatisfaction. But the claim is that, presumptively, invalidation of initiatives should be avoided. Courts should prefer other avenues of judicial action, like narrow construction, when facing initiatives. To some, this might sound like a trivial distinction. If the outcome is the same, does it matter whether the statute was invalidated or interpreted narrowly? Yet, even if the end result is identical, the means of achieving it does make a difference. If the act of judicial review is seen as disrespectful in the initiative context, avoiding it reflects respect to the people as sovereigns. Thus, there is value in avoiding judicial review of initiatives, as such, even if the legal outcome would be similar.36 The idea that judicial review, in general, should not be easily invoked is not new.37 After all, Bickel’s main focus in his Passive Virtues was on judicial review of ordinary statutes. Rare are the voices arguing that judicial review of ordinary statutes should be a matter of routine. So, in some sense, my argument is not unique. The crux of my argument is that judicial review of initiatives presents a unique situation in which the arguments for a restrained judiciary apply with greater force. Abstaining from judicial review in the initiative context can be achieved in many ways and presenting a conclusive list of available devices is improbable. Most of the tools that allow the courts to avoid judicial review can be adopted. Legal doctrines such as the


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right of standing, the political question, ripeness, mootness and more, can all be means by which the courts refuse to confront constitutionality of initiatives.38 Other tools are interpretive in nature and were discussed in Chapter 4. Nevertheless, I want to present some of the available devices. This presentation is not conclusive and does not cover all available means of avoiding judicial review. Instead, it is intended to demonstrate how some of the conventional tools are contextualized and applied to better meet the challenges initiatives pose.

I.

The Right of Standing

The doctrinal components of the right of standing, that is, the necessary elements in order to prove standing are: (a) the plaintiff must have suffered an “injury in fact”; (b) there must be a causal connection between the injury and the conduct complained of; and (c) the injury must be likely to be redressed by a decree in the plaintiff’s favor.39 The claimed injury should be “arguably within the zone of interests protected or regulated by the statutory or constitutional provision” as well as “not be too generalized.”40 Expansion of the right of standing grants the judiciary a greater role and increases judicial activism.41 In recent years, the right of standing has been significantly inflated and judicial activism increased.42 In a sense, as we shall see, this expansion reflects a shift from the traditional role of the doctrine of allowing the courts to protect individuals from the majority, to the role of protecting the majority from itself. As far as the traditional role of the doctrine, “the law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, and excludes them from the even more undemocratic role of prescribing how the other two branches should function in order to serve the interest of the majority itself.”43 Accordingly, courts are justified in reviewing a statute, or its manner of application, when a specific individual or a concrete minority group can demonstrate, inter alia, how it is being unjustly harmed. But a common way in which courts are expanding the right of standing is by allowing individuals to file a claim for a harm upon someone

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else. In such cases, the plaintiff does not suffer any real harm aside from the claim that the government has breached some constitutional duty. In this respect, the plaintiff is not alone, he is part of the majority, and he is thus representing what Scalia calls a majoritarian harm. The plaintiff may care more about [the harm]; he may be more ardent proponent of constitutional regularity… But that does not establish that he has been harmed distinctively – only that he assesses the harm as more grave, which is a fair subject for democratic debate in which he may persuade the rest of us. Since our readiness to be persuaded is no less than his own (we are harmed just as much) there is no reason to remove the matter from the political process and place it in the courts.44 Now, by expanding the right of standing, the court does not settle for protecting minorities or individuals from the tyranny of the majority but is allowing, instead, for individuals to claim they received harm from the majority, but in the name of the majority itself. In other words, by allowing those not directly affected by a statute to attack it in court, the right of standing shifts the political debate into the courtroom. Since there is no actual injury involved, the arguments must now become policy based and thus the nature of the discourse transforms into pure political terms. And, if this is severe in the context of ordinary legislation, it is even more inappropriate in the initiative context. After all, the initiatives are about expressing the majority will in the occasional instances of political dissatisfaction. By expanding the right of standing in the manner presented the courts are, paradoxically, allowing an individual to attack, in the name of the majority, what the majority has already approved in direct elections. Thus, there is a stronger justification to revert to the stricter version of the right of standing in the initiative context that will reflect the nature of direct legislation as expressing popular will, and will promote less judicial review.


II.

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Facial Review vs. As-Applied Review

Often times, when the court faces an unconstitutional governmental act that is based on a statutory source, it faces a choice between voiding only the effects of the actual, concrete application of the statue or invalidating the statute altogether. This choice plays out, for example, in cases involving the vagueness doctrine45 and the First Amendment overbreadth doctrine.46 For example, when an individual claims that his First Amendment rights are unjustly burdened by an overbroad statute the court can nullify the concrete governmental action and leave the statute untouched. Alternatively, it could decide to invalidate the statute altogether since its drafting is inappropriate and the consequences to First Amendment rights are too material. In such cases, the choice is between the narrow and concrete versus the broad and theoretical. There are reasonable justifications for each choice.47 The first rationale for the as-applied approach is based on institutional restraint. A less dramatic result is desired since it minimizes judicial intervention in the political process. Instead of invalidating an entire statute, the court is invalidating a concrete, local, political action. Prima facie, the latter entails more manageable political consequences. Another justification for the as-applied invalidation is founded on the basis that facial invalidation is an aggressive judicial act based on potential harms and not on actual and concrete circumstances. Accordingly, part of what makes the courts the most appropriate forum for review is the amount of time and the accumulation of events from the time of enactment to the day of review. That experience allows the courts to assess the statute from a better perspective than that of the legislature at the time of enactment. It allows the judiciary to test the statute in light of actual events and to see its application in real life. Thus, where possible, local nullification of an overbroad statute, as it is applied in fact, is more justified since it is based on concrete and real empirical findings. In contrast, facial invalidation is grounded on theoretical reflection rather than on practical considerations and there are no good reasons to assume that the courts are better situated to perform this role than is the legislature. Accordingly, courts should let future litigation take care of potential legislative

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flaws. Since practicality and real life needs are part of what justifies judicial review the as-applied method is preferred.48 On the other hand, facial invalidation could be justified on the rule of law. An overbroad statute places a heavy burden on society and its members. Its “chilling effect” will prevent citizens from duly exercising their basic rights.49 An overbroad statute fails to provide fair warning and decreases predictability.50 It is also not certain that future unconstitutional applications of the overbroad statute will be litigated and nullified since potential plaintiffs may not have enough incentive to bring their case to court even if their case is strong enough for them to prevail.51 Moreover, invalidation of an overbroad statute would spur the legislature to do a better job of drafting.52 Nothing prevents the legislature from responding to the judicial intervention by redrafting the statute and clarifying any constitutional doubts.53 Facial review demands that the legislature not leave to the judiciary anything it does not want to or cannot do by itself. Sloppy statutory drafting can be a result of political considerations on the part of the legislature. Yet, the courts should not allow legislators to perform their jobs inadequately.54 In addition, where a statute delegates discretion to administrative agencies, it is required that their discretion be clearly delineated and constrained. Overbroad statutes, by definition, give administrative agencies too much leeway without prescribing real guidelines.55 Thus, by facially invalidating an overbroad statute, the judiciary demands that the legislature not relinquish its responsibility to lay out its policies clearly and unequivocally.56 When transformed to the initiative context, the case for facial review loses urgency. First and foremost, the need for judicial restraint is greater when reviewing initiatives as per the theory of Qualified Respect. Second, the lack of judicial-legislative discourse in the initiative context undermines some of the arguments for facial review. Statutory invalidation will prove to be more fatal in the initiative context where putting an initiative on the ballot and getting it approved is often pricier than proceeding through normal legislative channels. Thus, the implications of judicial review in this situation is more significant because the likelihood of the populace responding with another initiative is not great. Without discourse between the judiciary and the legislature, there is no point in having


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the courts signal drafting or constitutional limits. The judiciary’s role is to faithfully interpret the initiative and give it meaning. The initiative is a result of a unique political moment, solitary, and outstanding. To treat it as part of an ongoing political discourse is to miss the point of the initiative institution altogether. But this should not be interpreted as an affirmation of the practice of broad statutory drafting. Broad drafting is even less desired in the initiative context than in statutory drafting. Yet, post-election facial judicial review is not the most suitable appropriate means to prevent such initiatives. As I will argue later in this chapter, pre-election judicial review that is based on the nondelegation doctrine will achieve just that, only without the harms associated with post-election judicial review. When facing broad initiatives the role of the courts is to interpret initiatives so they best carry out their intended purpose. This will often mean narrowing down the scope of the initiative to meet well-delineated, specific, and concrete circumstances.57 However, this can be achieved only if courts avoid facial invalidation of initiatives. Instead, what is needed is a case by case determination of the statute’s scope and limits. Facial invalidation will completely block the popular impulse and will not lead to political satisfaction. As such, it will not treat the initiative in a way that promotes its underlying values and goals; it will fail to grant them Qualified Respect. Moreover, broad statutory drafting might allow governmental agencies to apply the initiative in a manner that conflicts with the people’s original intent. Since initiatives may be seen as a check on elected representatives, this should not surprise us.58 After all, governmental agencies might be reluctant to promote policies they have not themselves originated, and perhaps even opposed. Here, the court’s role should ideally be to make sure the people’s intent is in fact applied.59 However, a facial invalidation of the initiative might be exactly what governmental agencies desire. In contrast, a case-by-case judicial review might inform government agencies about the proper application of the initiative, one that is faithful to the people’s original intent. This approach does not overlook the advantages of the facial review approach. But the claim is that facial review in the initiative


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context fails to balance the values of constitutionalism and direct lawmaking. In contrast, an as-applied, piece by piece approach in which the court gradually neutralizes constitutional “bombs” while preserving the core of the initiative better balances the values and underlying purposes of direct legislation.

III.

Desuetude

One of Bickel’s passive virtues is the doctrine of “desuetude,” which poses some interesting dilemmas in the initiative context. Bickel reads Poe v. Ullman60 (“Poe”) to be the “initial stages of a doctrinal development,” that of the desuetude. Poe involved a doctor who argued that a Connecticut statute prevented him from fully exercising his professional duties since the statue authorized the state to punish those who assisted others in using birth-control devices.61 The state argued that there had never been a prosecution of contraceptive sales in drug stores. (There were two police-court prosecutions for vending machine sales of contraceptives.) The court declined to adjudicate, and as Bickel suggests, the underlying doctrine for abstention was desuetude.62 Under the desuetude doctrine, the court may not adjudicate the constitutional status of a statute on the merits when the statute has not been enforced for a significant amount of time. There is no problem of vagueness, nor is there a problem of abstract or theoretical issues (the Connecticut doctor had standing and there was no issue of ripeness). In Poe, the statute, despite its nonenforcement, was still a strong deterrent in the doctor’s mind. For him, the lack of enforcement was irrelevant and he argued he had the right to constitutional adjudication on the merits of the statute. Yet, the Poe court declined to do just that. The underlying justification for the desuetude doctrine was that the lack of enforcement of an unambiguous statute reflects a political deadlock. The forces opposing the statute cannot gather enough power to repeal it and those who support it are unable to have it enforced. Neither camp is strong enough to tilt the equilibrium and the result is a somewhat uncomfortable status quo, in which both sides are partially impotent. In such a case, it is not up to the court to intervene and resolve the political deadlock.63 And so, in


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Poe, the court declined to hear the case on its merits and abstained from potential judicial review. Upon first consideration, it would seem that this doctrine is inappropriate in the initiative context. Where the people, not law enforcement authorities, are the source of the statutory norm there is the potential for deliberate non-enforcement. The theory of Qualified Respect suggests that, in such cases, the people need an activist judiciary, not a passive one, in order to ensure that their political will is being implemented and not thwarted. Yet, a second look might lead us to an opposite conclusion. As Bickel has pointed out, the fact that some people, even if politically strong, disfavor a statute and disobey it and even if some of them are officials, that as such, does not give rise to the desuetude doctrine. But the issue in Poe was whether a statute which had neither been enforced nor obeyed for three-quarters of a century could suddenly be resurrected and applied.64 So the doctrine of desuetude may not be applied blithely. It should be reserved for extreme situations where the political deadlock is evident, not where there is cynical administrative abstention from statutory enforcement. Paradoxically, under the theory of Qualified Respect, initiatives are more likely to become obsolete than ordinary statutes. Initiatives are a political expression of an intense and local political preference. They are reserved for moments of extreme political dissatisfaction in the polity; they are triggered by concrete political events. As such, they aim toward achieving well-defined results and are interpreted to apply to a closed set of predefined instances. The role of the interpretive methods I suggested in the previous chapter is to ensure that the statutory scope is minimized and controlled. As a result, the life span of initiatives is expected to be shorter. As time passes there is less likelihood that their statutory domain will enlarge as their limited statutory scope prevents the initiatives from being elastic and dynamic to include new, entirely unforeseen, circumstances. Thus, as more time passes the less the fear of unexpected enforcement can be justified. On the other hand, legislative action targeting initiatives could prove to be at least as difficult as with ordinary statutes. Thus, the increased probability of an initiative to become obsolete coupled with

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legislative impotency may prove to be fruitful grounds for political deadlocks. Such deadlocks are more likely in the initiative context. Should the legislature feel powerful enough to rid the legal system of an obsolete initiative, so be it. But where the legislature cannot do so, it is not for the courts to usurp the legislature’s role. Thus, a sudden change in enforcement policy should not be expected where non-enforcement of an initiative reflects a political deadlock which has been established for a significant amount of time. The theory of Qualified Respect and its interpretive implications suggest such change in enforcement policy is less probable in the initiative context than it is with ordinary statutes. In the end, it seems that the desuetude doctrine may prove to be more appropriate with regards to the initiative context than with regular statutes.

2.

PRE-ELECTION JUDICIAL REVIEW

I.

The Case for Pre-Election Review

The concept of Qualified Respect plays out in the area of preelection judicial review. The issue here is whether initiative proposals should be reviewed by the courts prior to elections. Generally, depending on the jurisdiction, a proposition can be blocked by a declaratory judgment, injunction, a writ of mandamus or mandate, or a writ of prohibition ordering the responsible government official to remove the proposition from the ballot.65 Analytically, challenges against propositions can be based on two separate grounds, on process and on content.66 A proposition can be challenged in the courts prior to an election if a party claims that the process is legally flawed. That is, regardless of the content of the proposition, the claim would be that some procedural requirements were not met. This could lead to removing the proposition from the ballot altogether or a judicial order rectifying the flaws. In addition, a proposition could be challenged based on its content. In such a case, the claim would be that even if there is nothing technically wrong with the actual enactment procedure, the


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proposition should not be put on the ballot since its content posits serious constitutional or other problems. The ability to challenge a proposition, on technical or substantive grounds, is primarily a matter of state law.67 Most jurisdictions allow legal challenges to propositions based on technical grounds, while banning challenges that are based on substance.68 In practice, however, courts addressing technical challenges to propositions tend to dismiss them so that the will of the people may be expressed without technicalities getting in the way. Jurisdictions occasionally allow substantive judicial review, but to the extent such claims are litigated, they are usually rejected, for reasons I will describe below.69 On the whole, the courts’ “no differentiation” approach to initiatives, which tends to treat them like ordinary statutes, is evident in the question of pre-election judicial review, as it is manifest in the judicial treatment of initiatives in general. As with ordinary statutes, the courts avoid intervening in the actual legislative process, preferring to deal with any problems after the legislation is complete.70 In the context of initiatives, this practice is improper, for it fails to reflect the uniqueness of direct legislation and to treat initiatives accordingly. The theory of Qualified Respect suggests that pre-election review of initiatives should be more rigorous, and that courts should be allowed to exercise greater judicial activism, precisely because the proposition has not yet been approved by the people. In fact, some of the arguments for non-intervention in the regular legislative process are significantly less persuasive when transferred to the initiative context. In contrast with the hands-off approach that my theory suggests courts should adopt once a proposition has been approved, a more rigorous pre-election judicial review would be more in line with the underlying rationale of direct legislation and would better promote its goals and ideals. Thus, courts should review propositions not only on technical grounds but on substantive grounds as well, which conclusion directly flows from my theory. I shall make my case below, but it is important, first, to understand what is at stake. Scholarly literature offers several paradigmatic arguments against substantive pre-election judicial review of initiatives. First,

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it is argued, pre-election review involves issuing an advisory opinion as well as the problem of ripeness. It is uncertain that the proposition will be approved at the ballot, and even if it is approved actual enforcement of the statute by government agents may circumscribe whatever problems it presents.71 The case against issuing advisory opinions is clear. The court’s primary function is to adjudicate and settle real disputes, not theoretical or abstract matters. The court’s main advantage over the legislature lies in its ability to confront real time problems of a statute that the legislature could not have envisioned. Real life questions that raise flesh and blood issues are necessary prerequisites to judicial intervention. Moreover, economic considerations dictate that the courts not give much play to abstract questions when they can be avoided.72 A second argument against substantive pre-election judicial review lies in the doctrine of separation of powers. Judicial restraint is of paramount importance where the courts intervene to exercise jurisdiction over matters that have been addressed by other branches of government. Even if the people are not really a branch of government, in practice they have the power to legislate. Just as the courts generally refrain from intervening in the ordinary legislative process, they should also avoid doing so when it comes to direct legislation. Judicial intervention is more justified after the legislative process has ended, and the final legislative product is under dispute.73 A third argument is that pre-election judicial review may promote anti-judicial sentiment. This is because quite often initiatives involve high-profile political issues that attract intense political debate. Judicial intervention in what ought to be a popular political process for resolving these issues may undermine the court’s role as impartial arbitrator.74 A fourth argument involves the idea of free speech. Initiatives are a protected form of free speech, even if, and perhaps precisely because, they are not yet approved. Submitting a proposition to the ballot is more than just legislation. It is a form of political expression of the people and, as such, enjoys government protection. Thus, pre-election judicial review should be avoided.75


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A fifth argument against pre-election judicial review involves the unique procedural constraints inherent to initiatives. There are usually regulatory limits on the time period in which initiatives can be circulated for petitions. Moreover, the need to finalize a petition for submission to the voters poses yet another time constraint. Proposition opponents may litigate against initiatives knowing that the slow judicial process may prevent them from being made ready on time. Missing an election date could prove fatal to an initiative. It might lose its popular appeal or miss a statutory deadline. Thus, pre-election judicial review may favor proposition opponents unfairly by providing them with a strategic weapon that may effectively hinder the initiative process. Moreover, courts working under time pressure may hand down illconsidered decisions, providing yet more examples for the old saw that hard cases make bad law.76 Most courts refrain from pre-election judicial review.77 A minority of jurisdictions, though, offer pre-election judicial review by means of advisory opinions or by issuing orders prohibiting the submission of propositions to ballot.78 The case is a little different where procedural challenges are involved.79 In such cases the challenges do not target the content of the proposition vis-à-vis the Constitution or other legal norms. Under such circumstances, the challenges may be grounded on claims that a proposition has failed to meet one or more of the requirements set forth in the laws regulating the initiative process. Such attacks can, for example, target the signature collection methods of the initiative sponsors, the proposition’s form and its title or summary as well as time limits. Procedural challenges may also target the subject matter of the proposition by claiming that it attempts to regulate a topic that is excluded from direct legislation by applicable state law. In most jurisdictions, a challenge may also target the single-subject requirement. Even if such challenges may seem more substantive, like other kinds of challenges I have mentioned, they may generally address noncompliance with state law regulating the initiative process itself, and thus I choose to categorize them as procedural.80 As noted, most jurisdictions allow pre-election review that is based on technicalities even if, in the majority of cases, such challenges are ultimately rejected.81 But it is easy to see why

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technical pre-election review is usually allowed. Here the attack is not theoretical or moot; instead, it will likely result in the claim that the current process violates a legal norm. Thus, the dispute is actual and based on solid fact. Such a claim is not against the approval of the initiative but rather against its submission altogether.82 Another reason for pre-election review that is based on technical grounds is that post-election challenges against initiatives that are based on technical irregularities are often rejected by the courts based on the “election cures all” doctrine. The argument is that the popular approval of a proposition overrides any technical flaws that occurred during the process leading to its approval.83 Thus, if the courts were to abstain from technical pre-election judicial review it would mean a de facto lack of any enforcement tools against technical irregularities in the initiative process. Moreover, the separation of powers argument against preelection judicial review also fails here since the norms that regulate the initiative process are statutes themselves. The courts generally refrain to intervene in the legislative process where the issues involved pertain to legislative rules and regulations. A challenge against the process is based on legal norms of the first order, on statutes. Granting relief in cases of statutory violation is exactly what the courts should be doing and therefore the separation of powers argument against pre-election review is inadequate to the initiative context.84 Most commentators approve of current judicial practices and agree that as a general rule pre-election judicial review of initiatives should be limited to technical challenges and substantive challenges should be postponed for post-election.85 Even those who are critical of direct legislation and believe it should receive harsher judicial treatment do not call for a blanket rule of pre-election judicial review but prefer a selective mechanism which would subject to pre-election review only specific initiatives, with certain subject matter.86 In contrast, my argument is that courts should, across the board, exercise both technical and substantive pre-election judicial review using more rigorous review methods. In arguing for preelection judicial review I am not calling for an all-or-nothing review


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only. Courts should be allowed to issue advisory opinions as well. My argument, however, is that more judicial involvement in the pre-election initiative process is desirable and to the extent preelection judicial review is available, it should be taken more seriously.87 To the extent it is not available at all, however, I argue that it should be made available. Pre-election judicial review is not only justified by the theory of Qualified Respect but it also helps promote the values at the heart of direct legislation. The idea of Qualified Respect is grounded on a particular perception of the initiative according to which the initiative is an intense, yet local and specific political expression of the ultimate sovereign. It is an exercise of government that increases self rule and moral responsibility. This perception is justified, primarily, by the unique procedural mechanisms of the initiative process and its distinctive nature. It is worthwhile here to stress again some of these relevant differences. While ordinary legislation can take several years, the initiatives process is time constrained. In ordinary legislation, a bill is introduced to the house floor and then evaluated in multitudinous ways. During this period, the bill is constantly on the legislative agenda. It is put to vote several times. In between votes, the bill is reconsidered and amended. A legislative draft slowly develops from a state of a raw and unrefined bill into a finalized statute. The initiative process, by contrast, is less fluid. There is a process, of course, in the sense that the proposition is circulated, publicly debated and voted on, but it is a binary process. The statute evolves from simple draft with no normative weight whatsoever into a fully grown statute. If the proposition is not voted on within the allotted time, it simply evaporates. The only thing that confers normative weight upon the initiative is the people’s vote, and that may happen only once. In most jurisdictions, a rejected proposition cannot quickly be resent to the ballot. The initiative process is an all-or-nothing mechanism, at the center of which lies the people’s one and only vote on election day. From the moment a proposition is approved it enters a new constitutional realm. It is a statute, and my claim is that it is a unique statute that deserves special respect. Among other things, this notion of respect demands that the courts avoid striking it

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down. However, prior to its approval, a proposition may lack the conceptual force that it would normally enjoy afterward. The differences in the enactment process suggest that prior to approval the proposition is of even less normative weight than that of a parallel legislative bill. Thus, pre-election judicial review is less problematic in the initiative context. In fact, precisely because the initiative process is more binary and because post-approval an initiative is a statute of higher status, pre-election judicial review is necessary. Consideration of the arguments against judicial intervention in the legislative process reveals that they apply with less force in the initiative context. It seems that conventional arguments against pre-election judicial review fail to take into account the essence of the initiative institution. Let us take a closer look. The argument from ripeness is significantly weaker in the initiative context. Unlike ordinary statutes, an initiative cannot be amended once it begins to circulate. Thus, the court reviews a legislative draft that is identical to the statute that the people may later choose to approve on election day. In this sense, the ability to consider the constitutionality of a proposition on the merits is not in any way diminished by the mere fact that it may be reviewed prior to vote. Nothing may change about the language of the proposition, while traditional constitutional scrutiny may go on regardless of the fact that the initiative is not yet approved. The separation of powers argument is also unpersuasive. While it is true that the people are in fact legislating, the legislative process is nothing like the process involved in ordinary legislation. The initiative process consists of two or three steps while the ordinary legislative process is comprised of many more procedural steps. A bill is introduced to the Assembly or Senate, sent to a committee, returned to the floor, sent back to the committee, back to the floor and then, in a bicameral system, to the second house for a similar process.88 Throughout this process, there are waiting periods and amendment mechanisms available to the bill’s sponsors as well as to other legislators. There is a process already set up for intervention. In contrast, the initiative process is more amorphous and intangible. There are fewer checks and balances built into the process and judicial intervention is thus less intrusive.


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It is sometimes argued that pre-election judicial review is likely to create anti-judicial sentiment.89 However, the alternative seems even worse. The impetus of the initiative is derived from its popular approval, that is, the actual point in time when the intense popular political preference of the people is clearly and unequivocally expressed. Pre-election judicial review, as such, is less likely to diminish judicial legitimacy than post-enactment review since the proposition has not yet gained public support. That is why post-enactment judicial review should be limited, which is precisely the justification for rigorous pre-election judicial review. In order to avoid or limit post-enactment judicial review, we must allow the courts to review propositions before they are actually approved. The more judicial review before election, the less likely that review will be necessary afterwards. Pre-election judicial review promotes political satisfaction since early judicial intervention helps guarantee that only constitutional propositions may be submitted to the ballot, rendering post-enactment judicial review unnecessary. If amendment were allowed once circulation of a proposition begins, then the case for pre-election judicial review would be significantly weaker. In such a scenario, the legislative process has yet to be finalized, which obviates judicial review. But when the proposition is identical to the future statute, the arguments in favor of pre-election review become more persuasive. Pre-election judicial review may also prove to be economically wise. There is little sense in wasting huge sums of money and resources on a proposition campaign, only to see the statute invalidated afterwards. Even though money-related issues are of secondary concern, especially where the people’s right to self rule and democratic values are at stake, one should not overlook the added benefits of pre-election judicial review.90 Since the initiative process offers few safeguards, it may be reasonable to look to the courts to fill the gap. While it is true that an unconstitutional proposition is not likely to be approved in the first place, even if approved, the judiciary may act to alleviate any constitutional problems raised by such a proposition. However, there is a potential drawback: pre-election judicial review might be used as a strategic tool by proposition

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opponents attempting to hinder the initiative process. Judicial challenges by opponents of a proposition may delay the campaign causing it to violate procedural time limits. Nevertheless, since review of initiatives after enactment is more difficult and less politically desirable, initiatives should be reviewed prior to approval even at the cost of litigating propositions that would not have been approved. Judicial review before election day may contribute to the voters’ ability to make more educated decisions on election day. The publicity attendant upon litigation may benefit the general public.91 But if a proposition is found to be unconstitutional, there is no point in sending it to the ballot at all. However, if it is found to be constitutional, a judicial opinion clarifying its content and any possible flaws may enhance subsequent political discourse. Such a judicial opinion may also serve as a precedent. Finally, early judicial review would allow initiative sponsors to withdraw a flawed proposition and propose a better one. Alternatively, a defeat at the ballot would prevent this since most jurisdictions restrict resubmission of initiatives by requiring a certain amount of time to pass first. Thus, pre-election review may prevent failure at the polls by affording initiative sponsors the opportunity to redraft their proposal before submitting it to the polls. Even if litigation may involve significant additional expenditures, from an initiative sponsors’ perspective this alternative is to be preferred to complete rejection by the voters. Thus pre-election judicial review may be necessary to enhance the likelihood that measures will be approved. Strategic use of the court system in blocking initiatives can not be completely prevented. But such judicial exploitation is possible anyway since technical pre-election review is already in practice. However, initiative challengers may think twice when weighing their claims against the probability of an initiative being approved. Their preferred approach is to defeat the initiative at the polls, burying it for a long time, rather than having to undergo judicial review that in the end may actually help proposition sponsors by eliminating the flaws from their draft initiative. As a result, frivolous litigation seems less appealing where it is less likely to succeed. A judicial opinion affirming the constitutionality of a proposition or rejecting frivolous claims against it may further its chances of being approved. These factors may diminish the appeal


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to proposition opponents of judicial review as a strategic tool. Finally, the court system in general is capable of handling frivolous lawsuits and there is no reason to assume that it will entertain such challenges in the case of initiatives.92 The courts can also accelerate proceedings where there is a risk that the litigation will unnecessarily impede the political process.93 In spite of the conceptual arguments in favor of pre-election review, there are still some formal difficulties to overcome. Technical pre-election review is already available in all jurisdictions. This review is easily justified, both substantively and formally. Substantively, such review is justified since, as I have argued, preelection review is always preferable to post-enactment review. Formally, such judicial review is legitimate since it is grounded on the norms regulating the initiative process, and thus the dispute is neither abstract nor theoretical. Substantive judicial review, however, poses a formal problem in some jurisdictions. As I argued above, I think it is analytically sound to grant the courts early review of propositions. However, even though some states have explicitly endorsed this kind of review,94 in some jurisdictions, there are few legal norms regulating such review. To the extent states allow for substantive review I argue it should be exercised more often and more diligently. In those states that do not explicitly endorse substantive pre-election review, there may be no solution other than legislative reform. In most jurisdictions, the initiative process may be used for purposes for which it was not designed. In fact, there are instances where propositions have been used to regulate issues that my theory of Qualified Respect would exclude from regulation by initiative. Even if we regard initiatives as the expression of our most heartfelt political preferences, there is no assurance, without legal safeguards, that such preferences will become political reality. For example, in some jurisdictions, there are no limits as to the subject matter of initiatives and the people may legislate via initiatives regarding almost anything. In fact, aside from technicalities and matters of form, no jurisdiction imposes any real drafting guidelines on drafters of initiatives. This lack of guidelines hangs in the balance with the localized, target-oriented nature of such a legislative tool, with unpredictable consequences for the


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entire democratic process. If the people can legislate however they please, they may use the initiative process to pass far-reaching, potentially sweeping, legislative reforms way beyond the kinds of changes that initiatives were designed to effect. The idea of narrow intentionalist interpretation, as I developed it earlier, is one way to deal with this disturbing possibility. In addition, I want to introduce two additional legal tools, the singlesubject rule and the nondelegation doctrine, that can help ensure the initiative process does not run wild by guaranteeing that initiatives be utilized in a manner best suited to them. Both doctrines exist in the broader context of ordinary legislation, yet when brought into the initiative arena they may seem newly justified. My argument is that both doctrines are needed in the initiative context to ensure initiatives are not stretched beyond their limits and the justifications for using these doctrines in the initiative context are grounded in the theory of Qualified Respect.

II.

The Single-Subject Rule

The single-subject rule serves as an external scope delineator prescribing the possible scope of a given initiative. After decades of disuse the single-subject rule has lately been revived by courts in the initiative context,95 perhaps, because of the increasing popularity of the initiative. I believe that this new approach is well justified and should be welcomed. The single-subject rule prescribes that statutes in general encompass one subject only. Almost all American states have adopted this legislative restriction with regard to ordinary statutes and a vast majority of the states that have initiatives have applied this restriction to initiatives as well.96 The origins of the rule are much older than the initiative context, with roots in ancient Roman law. It may be useful to explore the rationales behind the general rule.97 First, it is intended to prevent logrolling.98 Logrolling can take one of two forms. When interest groups are incapable of passing a desired bill alone, a coalition of special interest groups may be formed to propose a combined bill, encompassing a variety of their individual interests. The result is a bill patching together a wide array of topics, none of which will pass standing alone.99 Another from of logrolling, rider


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logrolling, occurs when a parasite bill, unable to attract the necessary majority alone, is attached to a popular bill on the theory that the more popular bill will roll the less popular measure to victory with it. Proponents of this approach may even hope that the less popular rider provision go unnoticed by voters, but, in any event, its supporters likely prefer the combined bill to the alternative of no bill at all.100 The second rationale for the singlesubject rule is to prevent confusion. Limiting a bill to a singlesubject is said to diminish complexity and allows legislators to get a better sense of the bill and cast a more informed vote.101 The single-subject rule has been liberally interpreted but is not often invoked with respect to ordinary statutes.102 In line with the prevalent non-differentiation approach, most courts have applied this same liberal approach to the initiative context as well.103 In California, for instance, the single-subject rule has not been invoked once in the forty years following its introduction in 1949.104 At first sight, liberal application of the rule may be more justified in the initiative context since the courts are eager to act in accordance with the people’s will.105 Liberal application of the single-subject rule in the initiatives context is reflected in several ways. First, courts are willing to define “subject” in a very broad and abstract fashion. As one commentator has shown, analytically speaking, any two subjects can be seen as belonging to a singlesubject.106 This is a matter of abstraction and of point of view.107 Second, the relationship between the several components comprising a single-subject is usually quite relaxed.108 In California, for example, perhaps the state with most litigation on the issue, the courts have historically demanded that “all parts of [the proposition] are reasonably germane”109 Many other states have followed this path; initiatives have rarely been invalidated on singlesubject grounds.110 There has been some scholarly criticism of this liberal approach.111 Critics argue that a relaxed interpretation of the rule undermines its underlying rationales. These rationales, especially preventing voter confusion, they argue, apply with greater force to the initiative context.112 The rule must be invoked more often than it has, and it should not be reserved for extreme cases. The relaxed

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interpretation has turned the rule into a dead letter. Certainly, there are ways to toughen the single-subject rule. For example, the courts may be less willing to abstract the subject of a proposition to the extent that it accommodates almost anything. Additionally, as some have suggested, the relationship between a proposition’s components should be defined to require that all components are interdependent or functionally related.113 According to this test, the provisions of a proposition must be dependent on one another in order to fulfill their common goal. If they can stand alone, even if they advance the same objective or are of the same subject, the proposition will not meet the single-subject requirement.114 In a recent article, Daniel Lowenstein, who is one of the main proponents of a relaxed application of the single-subject rule, recognizes and criticizes the recent shift toward more aggressive interpretation of the single-subject rule.115 He notes that state courts that have been traditionally deferential to initiatives under the single-subject rule have reexamined their position and have begun to apply a more rigorous standard. In contrast to Lowenstein, I argue that this shift is desirable and well grounded. Moreover, I argue, all states should apply a stronger version of the rule. By applying a stricter single-subject rule standard, states will promote, not undermine, the underlying values of the initiative institution.116 Even if the single-subject rule originated in the context of ordinary legislation, where it is liberally applied, there are strong justifications for taking a different approach when applying it to initiatives. The rigidity of the process, especially the inability to amend the proposition on the fly, demands a stronger application of the rule. The impetus behind, and the appeal of, direct legislation is its ability to reflect popular will in a manner clearer than ordinary legislation. Logrolling and its attendant voter confusion make it less likely that initiatives will reflect the will of the people since such a practice may obscure the single-subject message of an initiative. This is precisely why the courts should take a more aggressive stance in the application of the single-subject rule. But there are still two related justifications for the rule I want to suggest that are derived from my conceptualization of the initiative process. According to my main argument, the purpose of


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the initiative is to allow the sovereign people to reflect their intense political preferences when the ordinary avenues of policy making fail them. The initiative is a reactive tool intended to address specific issues. By its nature it is not intended to bring about farreaching legislative reform. The representative legislature is better suited to accomplish sweeping legislative reform, and when the divergence in interests between the people and their representatives becomes too great, the people may replace their representatives by voting them out of office. The initiative process is no panacea and this is why a stricter application of the single-subject rule is justified. By applying the rule strictly, the courts facilitate the initiative process.117 Moreover, harsher enforcement of the single-subject rule may enhance the likelihood that an initiative reflect the people’s will. Some of the critics of the initiative process focus their attention on its inability to reflect voter intensity since the voters are presented with a simple yes or no choice on an as-is proposition.118 Yet, this criticism loses force when voters vote on a single issue. On a multi-issued initiative that is presented as is, there is no easy way to determine whether a vote reflects the different levels of interest in each of the issues independently. But with a single-subject initiative there is no ambiguity; the intention of the voters is clear. Even harsh critics of the process admit that direct legislation probably better reflects political preferences when it comes to a single issue.119 In turn, stricter enforcement of the single-subject rule enhances the underlying rationales for direct legislation. In this respect, I find the “functionally related” version of the single-subject rule to be very appealing and several states have recently moved to adopt stricter versions of the single-subject rule.120 The test requires that the several provisions of a proposition not only be of one subject but also be “reasonably interrelated and interdependent, forming an interlocking ‘package.’” 121 This test requires that each provision and component of an initiative be a necessary part of a greater whole. This, along with other tools, will help ensure that the proposition is in fact targeting a specific problem, the one responsible for political dissatisfaction which triggered the initiative campaign. Apart from the other rationales for the single-subject rule, a strict application of the single-subject

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rule ensures that an initiative is utilized in accordance with its underlying purposes. To the extent the courts are already applying the rule with less deference, I find this to be desired and justified. To the extent the courts do not, I argue that they should. Lowenstein makes several arguments against strict application of the single-subject rule. First, he argues that the single-subject rule cannot prevent voter confusion since the complexity of a proposition has little to do with its scope. A proposition can be single issued, and yet be very complex and elaborate, thus, making it reasonably difficult for voters to comprehend. In contrast, a multi-issue proposition can be very plain and simple allowing voters to fully comprehend it. As such, there is little that the single-subject rule can do to eliminate voter confusion. 122 Second, the rule’s rationale regarding pork prevention is also questionable.123 Even within a single issued proposition, comprised of several interrelated and interdependent provisions, voters may be happy with some provisions and dissatisfied with others. The bottom line is that there is always some tradeoff whether one issue or several issues are involved.124 Lowenstein argues further that logrolling is less frequent in the case of initiatives, and to the extent they exist their damaging effects are questionable. Logrolling is more probable in the legislative context simply because voters are less informed about the activities of their representatives and the incentives behind different enactments, whereas, with direct legislation, it is less likely that voters will be unaware of the less desired parts of a proposition.125 It is also unclear why logrolling that involves a coalition of minority groups is undesirable. A majority of voters may be conscious of the alternative and prefer a multi-issue proposition to no proposition at all.126 Lowenstein agrees that rider logrolling is probably undesirable.127 Unlike coalition logrolling, here, a less popular parasite proposition rides on top of a proposition that enjoys majority approval. The will of the majority may be compromised by having to approve the parasite bill in addition to the more popular host measure. Adopting a stricter single-subject rule is unlikely to prevent this since proposition sponsors, argues Lowenstein, will simply draft the proposition in a way that renders all components interdependent.128


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Third, Lowenstein argues, the “functionally related” test creates problems of its own. It prevents the people from sounding their voice on comprehensive issues as they perceive them, since it places a strict limitation on the scope of a given proposition.129 And, perhaps more importantly, stricter application of the singlesubject rule lacks any guiding standard. The single-subject rule is socially and contextually dependent and has no inherent meaning of its own. Unlike other constitutional concepts and standards that have definite core meaning, the single-subject standard is wholly relative and conditional.130 Defining subjects as single is largely subjective and, thus, argues Lowenstein, the courts should refrain from adopting a strict version of the single-subject rule. Instead, they should apply a relaxed version of the rule, using the “reasonably germane” standard and interpret that standard by reference to concepts of public understanding and the public mind.131 On the whole, I find Lowenstein’s arguments unpersuasive. While there is some analytic merit to the claim that a multi-issue proposition need not be more complex and confusing than a single-subject proposition, it is still reasonable to assume that a proposition dealing with a variety of issues is likely to be more complex and overwhelming than one that targets a single issue. Legislative complexity is not always a result of the number of issues regulated, but it is certainly affected by it. It is safe to assume that a multi-issue proposition will generally be more difficult to assess and evaluate,132 a process which could be made easier by use of the single-subject rule. Nevertheless, Lowenstein makes some valid points regarding logrolling. Indeed, it is unclear that logrolling is entirely undesirable.133 It is also reasonable to assume that backstage dealing and logrolling are less likely in the initiative context. Since my argument for strict application of the single-subject rule is not grounded solely on the need to prevent logrolling, Lowenstein’s argument is not fatal to it. Lowenstein’s argument regarding the malleability of the singlesubject rule and lack of any standard is also not without faults. No doubt, it is true that sometimes it is difficult to tell whether a proposition is multi-issued or not. But the single-subject rule, even

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in its strict version, is a reasonably useful one. It seems that Lowenstein’s doubts are more a result of judges exploiting their judicial power than of questions about the inherent usefulness of the rule. But legal rules are based on the assumption that most judges are reasonable and are faithfully performing their duties. For these judges, guiding principles, even if sometimes vague, may be of aid. In the hands (or pen) of the manipulative judge, even the most delineated and precise rules can be twisted and cynically applied. Accordingly, my rejection of the relaxed version of the singlesubject rule is not grounded on the judges’ inability to resort to “public understanding.” In fact, I think this task is possible, albeit admittedly difficult at times. As the theory of Qualified Respect suggests, judges interpreting initiatives at large should seriously consider the general public understanding of what the statute means. This is what intentionalism entails in the initiatives context. My argument is simply that the single-subject rule should not be applied this way because the single-subject rule is intended to fulfill the purpose of the initiative, not solely to please the electorate. Thus, the single-subject standard should be determined not according to how the public perceives the particular initiative but on whether that perception is reasonable. The “functionally related” standard is also not entirely insulated from a social context. The question of whether one provision is dependent on another is also affected by defining that initiative’s objective. Often times, successful fulfillment of a statute is dependent on separate mechanisms instituted in it. Its implementation can be minimized, but not completely eradicated, by the detachment of some of its provisions. Thus, the intensity of public sentiment for achieving that goal can also affect the court’s willingness to read several provisions as being essentially inter-dependent and mutually related. However, the decisive factor is not whether the public sees the separate provisions as related, but whether these provisions are interrelated and tailored to advance the purpose the people wish to advance. While the people set the agenda on what they wish to regulate, it is up to the courts to decide whether the exact structure of the proposition does in fact address the issues as the people intended. Initiatives are about expressing popular will, but that


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does not mean that the standards governing them are wholly determined by the people. In fact, the initiative process should reflect this delicate balance between popular political preferences and proper legislation. A strict application of the single-subject rule reflects that balance. After all, the public can initiate an unlimited number of initiatives and there is no legal obstacle from separating a multi-issue initiative into distinct single-issue initiatives. Thus, the people are free to legislate on any issue about which they are passionate. But that should not obscure the fact that, as a general rule, initiatives should encompass one subject only.

III.

The Nondelegation Doctrine

Despite the fact that the nondelegation doctrine is rarely employed used by courts, I argue that its applicability within the initiative context is desirable and that it can help promote the rationales of direct legislation as a whole. Moreover, the doctrine’s underlying justifications apply with greater force to this context. Delegation, in general, is the transference of legislative power from elected legislators to other governmental agencies.134 This is done by legislating open-ended statutes hoping, or explicitly requesting, that other governmental agencies impose real substance upon the vague statutory provisions. The nondelegation doctrine is utilized to strike down such statutory provisions. Thus, for example, delegated executive discretion should be delineated by clear principles and guidelines to avoid judicial review.135 In its abstract form, the idea that the legislature should legislate rather than delegate is well-established in modern democracies. The idea of separation of powers goes back centuries.136 However, interpreting the concept of separation of powers and delineating the functions of the three branches of government so that the separation is reasonably respected has still not been fully accomplished.137 It is clear that an absolute separation of powers in the modern state is neither tenable nor desired. Some institutional overlap in legislation, enforcement and adjudication is inevitable, although each governmental branch should primarily exercise its designated function. It is somewhat surprising that American

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judicial history offers only a few cases in which the Supreme Court has invalidated statutes explicitly on nondelegation grounds, all adjudicated during the years 1934-1935, in the heart of the New Deal era. The Supreme Court has not struck down a single statute on nondelegation grounds ever since.138 Moreover, scholars tend to agree that the nondelegation doctrine is essentially dead.139 Yet there are numerous academic voices calling for the revival of the doctrine.140 My aim here is to analyze the case for nondelegation in the initiative context and to argue that revival of the doctrine is specifically appropriate in the initiative context. There are several substantial justifications for the nondelegation doctrine in general. First, both history and constitutionalism demand nondelegation. Separation of powers is an innate element of American constitutionalism and democratic thought; nondelegation is a direct extension of that concept. Legislatures should stick to legislating, just as the other branches should stick to their roles. Despite the fact that some delegation is probably inevitable, in general delegation should be avoided.141 Second, nondelegation promotes political accountability. By precluding legislators from surrendering their legislative role to unelected administrative agencies, courts can guarantee that legislators are answerable for their political choices. Delegation allows legislators to pass the buck, and effectively the blame, onto unelected officials. Accountability requires legislators to explicitly promulgate their policies, which, in turn, allows voters to better asses their representatives political functioning.142 Third, delegation of legislative powers can be seen as a threat to individual liberty. Under this hypothesis, government powers pose an inherent threat to individual liberties and freedoms. One way of limiting governmental powers is by raising legislation costs. Detailed legislation that is scrutinized and contested in the legislative process helps protect individual liberties because it places serious procedural hurdles in the legislative process. Hence, the elaborate American legislative design aimed at attaining wider consensus and preventing hasty arbitrary legislation. Delegation bypasses this line of defense because by refraining from passing explicit and detailed laws, legislators can attain political consensus much easily and lower the costs of legislation.143 Fourth, nondelegation promotes


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the rule of law since it requires detailed and explicit statutory wording. Open-ended legislation places serious obstacles in the ability of individuals to plan ahead. By enforcing nondelegation courts ensure that individuals are receiving fair notice.144 Fifth, nondelegation, ensures deliberative democracy. Factional power and special interest pressures are countered by a transparent legislative process that requires deliberation as well as open discussions among the legislators themselves. Delegation serves to obscure the legislative process because publicly unmonitored agencies are more likely to be beholden to special interest groups. The risk of rent-seeking legislation is greater where legislation is delegated to other agencies and nondelegation can prevent this.145 The general question as to whether the nondelegation doctrine should be revived has engendered lively debate among scholars.146 Yet, when considered against the background of initiatives, the case for nondelegation becomes more compelling. The theory of Qualified Respect this work propones is based on the premise that the initiative is a tool designed to allow the people to exercise selfrule specifically when their representatives prove to be inadequate.147 But delegation, as such, allows the legislature to shift the burden of decision-making to governmental agencies and to minimize its direct responsibility. David Schoenbrod underlines this argument. Delegation, he claims, is like budget deficits hiding costs.148 It allows lawmakers to be shielded from blame for unpopular policies by shifting responsibility to governmental agencies. Moreover, Schoenbrod argues, the tendency to delegate only increases as lawmakers face more difficult choices. It is axiomatic that politicians lust after re-election, and standing up and taking stances on controversial issues may hinder that objective. If an agency’s delegated authority results in good policies, legislators will still claim credit, but if the authority fails, they will recoil from accepting any blame.149 Delegation, argues Schoenbrod, helps legislators avoid the consequences of their primary responsibility. His argument becomes much stronger in the initiative context. If initiatives are a tool for expressing the people’s intense political desires, used temporally when the ordinary means of selfrule through representation fail, it makes no sense to resort to this tool only to shift legislation, again, to unelected agencies. Initiatives are

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designed to reflect the populace’s will, whereas delegation, by definition, shifts policy-making to administrative agencies and stymies the decisiveness which initiatives are supposed to demonstrate. Thus, if initiatives are intended to give the people a policy-making tool and delegation is a means for avoiding policymaking, the two are simply irreconcilable.150 Moreover, as the theory of Qualified Respect suggests, initiatives are designed to hone in on and well-delineated local issues. They are designed to allow the community to speak with a clear voice on specific issues, but are not well-suited for overhauling legislative reform. In order for initiatives to accomplish their purpose they must be lucid and detailed. Clear and unambiguous drafting will allow initiatives to address the desired issues with preciseness and force. The more detailed and concrete the initiative is the less likely the scope of its application will be stretched. It will also better reflect the electorate’s will since it will enjoy greater common understanding of the electorate simply because more voters will know exactly what they are approving. In contrast, an undefined statutory application scope hovers over vague or ambiguous propositions. If initiatives are too abstract, their application scope can be enlarged quite easily; such initiatives also possess a less democratic pedigree since it is more probable that voters held varying understandings of what they had approved. One way of addressing this undesirable outcome is interpreting initiatives narrowly. The other is to exercise the nondelegation doctrine more rigorously. To sum up, the nondelegation doctrine is especially justified, and needed, in the initiative context. It prevents shifting political confrontation to other governmental agencies even though political confrontation is exactly what initiatives are intended to reflect. It also restricts the initiative process to a well delineated statutory application scope by giving the courts a tool by which they can make sure initiatives do not turn into empty and abstract statutes.151 One of the rationales for delegation in general is the argument from expertise.152 According to this argument, legislators do not have the expertise needed to craft technically detailed legislation. Their role is to promulgate general policy guidelines and it is then the role of professionals in the different administrative areas, who


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are well familiar with the exact details and makeup of the applicable industry, to flesh out the actual technicalities and details for carrying out the policies generally outlined by the legislature. This is especially true in this day and age where regulation in many areas demands specific expertise and mastery of terms of art. Accordingly, a case can be made that this claim is even more relevant in the initiative context. The general populace is not expected to posses the same level of knowledge as their elected representatives. Therefore, when the people legislate, it might seem reasonable to allow more delegation since it is unrealistic to expect the people to enact laws with precision and technical accuracy. Here, it could be claimed, we actually need delegation so that professionals and experts will be able to elaborate on those areas about which the people cannot possibly articulate. Even though this argument is appealing at first, on the whole I find it unpersuasive. As for delegation in general, and as Schoenbrod argued, many administrative heads are not actually experts or professionals and many legislators are assisted by professional staff and legislative experts.153 The only thing delegation does is shift the decision point from one political arena to another. Moreover, even if legislators are not fully familiar with technical issues, they can rely on their aides to help them make reasonable judgments.154 The same is true with initiatives. The claim that the populace can fully grasp all of the technical issues and terms of arts required in modern legislation is, of course, unsound. Yet, they can still make value judgments about detailed propositions based on reviews made by experts and professionals from the field who are likely to be heard from during the initiative campaign. The proponents drafting a proposition utilize experts and professional in this task; just as legislators do. The nondelegation doctrine requires details and specifics, but does not assume that the people will therefore be able to directly asses the value of the proposition. Nevertheless, it forces initiative’s sponsors to lay out their exact legislative proposition in detail. The draft can then be reviewed by experts whose opinions can help the people in making value judgments. Requiring precise and specific drafting does not serve to inform individuals as much as it forces proponents to offer a complete and coherent proposition and

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confront all issues involved. They must consider the different aspects and ramifications of their proposal and craft their proposition accordingly. Even if the people are not all capable of assessing these complexities on their own, they can rely on proxies to aid and abet them and can make their judgments based on their reports. Ultimately, it is reasonable to argue that this is exactly how elected legislators make up their minds when they are engaged in ordinary legislation. The alternative would be to present voters with an incomplete draft. This might look simpler or more appealing at first blush but in fact it would prove to be inadequate and misleading. It would eliminate detailed analysis of the various aspects of the proposition. Also, delegated legislative authority might allow administrative agencies to enforce the law in a manner that deviates from original intention. Had the proposition been clear and unambiguous, had it avoided delegation, the people would have been able to better assess the initiative and more successfully predict its application. Interestingly, there is evidence that many initiatives are drafted in abstract fashion.155 This kind of non-specific drafting can both appeal to more voters and allow the drafters to leave sensitive issues untouched; this is precisely why the nondelegation doctrine is required. Some of the scholars who admit that the nondelegation doctrine is sound, have difficulty with the mechanics of the doctrine itself. If some delegation is permissible, we need criteria as to what counts for non-permissible delegation, a problematic task. Cass Sunstein, for example, holds that the nondelegation doctrine is too vague and impractical for judicial review.156 Nevertheless, he argues, the doctrine lives in the form of interpretive canons. Many interpretive canons that require clear statement in various legislative areas may be recast as canons that promote nondelegation. Unlike the classic nondelegation doctrine, these interpretive canons are context dependent since they do not apply to statutes across the board but instead only to statutes regulating specific areas. Sunstein lists several examples: the idea that administrative agencies are not allowed to interpret ambiguous provisions so as to preempt state law;157 the ban on administrative


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retroactive application of statutes absent clear statutory wording;158 the ban on application of statutes outside U.S. territories absent clear statutory wording;159 no waiver of sovereign immunity absent clear statutory wording;160 and the narrow interpretation of tax exemptions.161 What these interpretive canons have in common is that they force the legislature to be clear and specific so that there are no ambiguities in administrative enforcement, which, in essence, is tantamount to legislating change in administration. Despite the fact that the courts do not refer to these interpretive canons as promoting nondelegation, that is, in fact, the effect they have. By resorting to the rule of lenity, for example, enforcement agencies are prevented from extending the penal code to cases not clearly inside their statutory domains. Absent clear statement, doubts will be interpreted in favor of the defendants. De facto, this is the nondelegation doctrine at work since it requires the legislature to finish its legislative task and not rely on subsequent administrative enforcement to make sense of a statute. When dealing with open ended provisions, agencies cannot assume they are free to use their discretion, but rather must use an across-theboard guideline in the form of a specific interpretive canon. Such guidelines limit administrative discretion and therefore prevent delegation. Schoenbrod takes a different approach. He suggests the classic nondelegation doctrine is strong enough and should be applied He distinguishes between interpretation and rigorously.162 legislation.163 While administrative agencies are required to interpret, they are banned from legislating. So long as agencies are licensed only to interpret a statute, there is no delegation of authority to legislate. But when their actions have the effect of making law rather than interpreting it, the nondelegation doctrine has been violated. According to Schoenbrod a statute will not be considered to delegate authority if it is capable, in most cases, of giving a clear answer as to the legality of a given action.164 In addition, a non-delegating statute should reflect “the relative weight the legislature gave to conflicting social goals.”165 Drawing on Ronald Dworkin, Schoenbrod argues that administrative agencies are permitted to research a legislature’s original intent. But the

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nondelegation doctrine is violated when agencies look ahead in order to evaluate the future impact of a given statute.166 Unlike Sunstein and many other writers Schoenbrod sees a qualitative difference between statutes that delegate and statutes that do not and he argues for a judicially manageable standard for identifying delegation. Whether delegation may be uniquely defined or whether its definition is more pliant, the courts ought to be very reluctant to tolerate it in the case of initiatives. Both the single-subject and nondelegation doctrines can help ensure that initiatives remain faithful to their essential purpose, that they remain a legislative vehicle that narrowly reflects the will of the people. Such doctrines may also prevent overhauling legislation, on the one hand, and abstract and meaningless legislation, on the other. I argue that both doctrines should be applied only prior to election, in accordance with my concept of Qualified Respect.167 Once an initiative has been approved, the courts should be less willing to invalidate it even on single-subject or nondelegation grounds. Stricter pre-election application of these doctrines will not unnecessarily impede the people’s political will. Instead, it should be seen as a mechanism for refining and improving the initiative process, not an attempt to curtail it. The inherent procedural nature of these doctrines serves as another justification for their application prior to election only. Both doctrines are procedural since they target the form of a given proposition as opposed to its content. Their attractiveness lies in their ability, despite their procedural character, to promote higher quality legislation. It is precisely this procedural character which suggests that these doctrines should be reserved to pre-election judicial review. As I described earlier, technical review of propositions prior to election has become more readily available and is easier to justify than in the past.168 The procedural character of the single-subject rule and the nondelegation doctrine makes their application prior to election more practicable. But, as a rule, the people’s approval of a measure is not contingent upon the elimination of all minor technical flaws in drafting. Furthermore, initiatives that harm the interests of minority groups or violate other fundamental rights should not be immune from judicial


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review simply because the people have approved them.169 But when the end product is challenged on procedural grounds, such as single-subject or nondelegation, the people’s approval should make a difference. To invalidate an approved initiative simply because it failed to meet technical requirements is an unreasonable reversal of the people’s legislative mandate, which is inconsistent with my theory of Qualified Respect. Thus, the call for a tightened singlesubject rule as well as for revival of the nondelegation doctrine is especially appropriate to pre-election judicial review.

3.

RATIONAL BASIS REVIEW

Since the theory of Qualified Respect is grounded in the nature of initiatives, as such, its implications must accord with legal doctrines that apply to all statutes, regardless of their content. Since the rational basis review standard applies across the board to all statues it is a worthy candidate of analysis; naturally, this is where the uniqueness of initiatives vis-à-vis ordinary statutes should be most in evidence. In contrast to these universally applicable legal doctrines, review standards apply only to some statutes, such as the intermediate review or strict scrutiny standards, which are invoked to preserve certain constitutional values that a statute’s contents may otherwise appear to challenge. All other things being equal, the rationality review standard offers an ideal litmus test for demonstrating the ramifications of the theory of Qualified Respect. Scott Bice identifies several necessary components for the rational basis review test.170 The contours of such a test are influenced by two factors. First, it must have some teeth, allowing it to serve as a basis for invalidation of, at the minimum, some legislation. Second, it must be a minimal test so that it does not overlap with the more rigorous tests of intermediate review and strict scrutiny. Within these boundaries, Bice describes the necessary components of the rational basis review. Under the rationality basis review standard, a statute will be deemed unconstitutional when “there is a less costly means of achieving the same goal to the same extent.”171 In contrast with “the less restrictive alternative” test, this standard does not evaluate the costs of the enactment vis-à-vis its benefits, which could also be

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considered under the intermediate review standard. So long as the costs of a given enactment are necessary in order to achieve its objectives, the statute should be upheld even if the costs could be dramatically decreased by taking a different legislative approach that would result in achieving the desired goal, although to a lesser extent.172 The courts should not engage in cost-benefit analysis since this would involve a more rigorous review standard and would substitute judicial activism for legislative policymaking. On the other hand, argues Bice, the rationality review standard is strict as to the nature of the goal a statute must achieve: a statute may not be assigned “any conceivable goal” whatsoever,173 because such a lax standard could result in almost any statute under review being passed. The rationality review standard also imposes upon the courts the obligation of considering a statute in the light of changing circumstances.174 That is, when contemplating the constitutionality of a statute under rationality review, the courts ought to take into account how circumstances have changed from the time of enactment to the time of judicial review. Oft-times, a legislature may use means that with the passage of time and a change in circumstances are no longer appropriate to the intended goal. If some bite is to be given to the rational basis review standard, argues Bice, then where a statute seems less valid in light of new circumstances it should be invalidated even if that same statute was justified at the time of enactment. Otherwise “[m]easured at the time of enactment, legislative action will rarely be based on implausible beliefs, other than in cases of ‘clear mistake.’”175 The rationality basis standard allocates the burden of proof as follows: First, in order to challenge a statute, the contesting party must show that the statute works to its disadvantage. Second, the government must show how the statute is rational, that is, how efficiently it promotes some purpose. If the government fails to lift the burden, the statute is deemed irrational and is invalidated. If the government is able to lift the burden, then there are two alternatives: the statute may be upheld or the party challenging the statute may receive another chance to prove “beyond a reasonable doubt” that the statute does not promote its objective.176 Bice argues that the second alternative is the more reasonable of the


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two. It allows the challenger of a statute to present the court with evidence that the measure is not rational, which is more compatible with “the tenets of the adversary system.”177 Application of the rational basis review to the initiative context will entail consideration of several issues, reflecting the uniqueness of initiatives and promoting the idea of Qualified Respect. I find most persuasive Bice’s argument against the “any conceivable goal” method so often invoked by the courts when reviewing ordinary statutes. The process of demonstrating a statute’s rationality ought to be primarily on the basis of evidence. The court should evaluate statutory text, general statutory goals and legislative history in order to determine a legislature’s actual intent. This is a task of ascertaining what a legislature actually sought to achieve, not of artificially assigning it intent.178 The courts should avoid imputing to a legislature a hypothetical goal that may not have been the actual goal.179 Accordingly, if the government fails to provide the required evidence of the legislature’s actual rationality, the statute under review is invalidated. In the initiative context, this argument becomes even stronger since, as the theory of Qualified Respect implies, courts interpreting initiatives should make determining legislative intent their first priority.180 Yet for our purposes it may be necessary to modify the rationality review standard to prevent consideration of changed circumstances in the initiative context. As Bice demonstrates, enlarging the original scope of a statute’s application to include unforeseen events, the courts are able to see the statute in a new, and sometimes unfavorable, light. Legislatures seldom act on wholly irrational assumptions when they enact a statute,181 but the usefulness of a statute may change with the passage of time.182 But what is arguably justifiable in the case of ordinary legislation is less persuasive as applied to initiatives. An initiative ought not to be so liberally interpreted that it is applied to completely unforeseen circumstances, which would only likely be used as a means of invalidating the initiative, as Bice suggests. Accordingly, when subjecting initiatives to review by the rationality standard, the courts ought to be very reluctant to admit evidence that is based on unforeseen conditions. Assuming Bice is correct, the inadmissibility of changed circumstances will result in fewer

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instances of statutes being invalidated. Moreover, by barring a consideration of changed circumstances, initiatives may be interpreted in a manner that conforms to their original legislative intent, which will obviate the “any conceivable goal” test. It would be inconsistent to invoke the standard of actual intent when evaluating the question of whether an initiative pursues its goal rationally, while ignoring actual intent when considering the question of whether changed circumstances invalidate the initiative. The principle objection to excluding a consideration of changed circumstances from the judicial review of initiatives is that initiatives are thus more likely to be outdated. The ability of the courts to consider changed conditions is necessary to their task of preventing the application of anachronistic laws.183 Yet, this role of the judiciary is controversial, even in the context of ordinary statutes, and there have been strong arguments that it should be reserved to the legislatures alone.184 As I have shown, this argument becomes even more thorny in the initiative context.185 The rationality review standard involves questions about the allocation of burden of proof that may be clarified by reference to the concept of Qualified Respect. As noted above, once the government has argued for the rationality of the statute, there are two options. Either the party challenging the statute gets a chance to rebut the government’s position, “beyond a mere preponderance of the evidence,”186 or the court upholds the statute. My claim is that the latter approach is more appropriate to the initiative context. First, disallowing more than one challenge to an initiative is in accordance with my theory that initiatives are unique and should enjoy a higher status than ordinary legislation. Secondly, if the courts ought not to consider changing circumstances in the context of initiatives then there is little justification for granting challengers a second chance. A second challenge may only increase the costs of litigation. Ultimately, if a challenger fails to prove the irrationality of a statute in the first instance, then the people should decide. To summarize my view, the distinctive nature of initiatives should be evaluated in the light of the rationality review standard. An initiative should be invalidated if the government cannot show that it serves its intended goal rationally. In considering an


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initiative’s rationality, the courts should not take into account changing facts and conditions. In most cases, this will result in upholding the statute. In addition, the challenger of an initiative should have only one chance to demonstrate that the initiative is not rational.


CHAPTER 6:

QUALIFIED RESPECT IN ACTION

It is time to demonstrate the application of the theory of Qualified Respect to some case law.

1.

CALIFORNIA’S PROPOSITION 8 OR HOW HARD CASES MAKE BAD STATUTES

I.

Background

In June of 1982, Californians adopted the Victims’ Bill of Rights, Initiative Measure Proposition 8.1 This initiative, proposed by various anti-crime groups as well as conservative politicians, contained constitutional amendments and statutory provisions and was, generally speaking, designed to reform rights of criminal defendants.2 The litigation involved with Proposition 8 reflects some of the problems with current judicial treatment of initiatives and demonstrates how the theory of Qualified Respect can be used to ameliorate some of these difficulties. Proposition 8 contained a variety of constitutional and statutory amendments. This is how Justice Mosk of the Supreme Court of California in Brosnahan v. Eu (“Brosnahan I”), summarized the proposition: The constitutional provision in the proposed initiative adds section 28 to article I, declaring that victims of crime have a right to restitution from wrongdoers for financial 145

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A Theory of Direct Legislation losses and the right to expect that wrongdoers will be punished. The Legislature is directed to adopt provisions to implement the right to restitution. In addition, section 28 declares that students and staff of schools from elementary to high school have the right to be safe on school campuses. It provides that relevant evidence in criminal proceedings shall not be excluded (with certain exceptions) unless the Legislature provides otherwise in a statute enacted by a two-thirds vote, sets forth standards and procedures for release of suspects on bail or on their own recognizance, and allows the use of prior felony convictions for impeachment or for enhancement of a sentence. The Penal Code provisions in the initiative abolish the defense of diminished capacity, provide a definition of insanity, and prohibit introduction of evidence of diminished capacity or mental disorder except at the time of sentencing or commitment. The punishment of persons convicted of specified felonies who have been previously convicted of such crimes is enhanced. A victim of crime is afforded the right to attend sentencing and parole proceedings and to make a statement at such proceedings; in imposing sentence or determining eligibility for parole, the judge or parole board shall state whether the criminal would pose a threat to public safety if granted parole or probation. Plea bargaining as to specified crimes is forbidden except under certain circumstances. The three sections added to the Welfare and Institutions Code by the proposed initiative afford victims of crime the same rights with regard to the release of juveniles on parole as are described above. A person convicted of a serious felony may not be committed to the Youth Authority if over the age of 18. Finally, existing provisions of the Welfare and Institutions Code relating to the commitment and treatment of mentally disordered sex offenders are rendered “inoperative,” except as to those

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previously committed under the program.3 [citations omitted] Prior to its approval the proposition was challenged on two grounds.4 First, it was argued that the proposition failed to comply with some of the statutory provisions regarding the signature collection process. Second, it was asserted that by embracing more than one subject, the proposition violated the single-subject rule. The proposition was to be submitted for voter approval in the primary election of June 1982, and in delivering its opinion on March 11, 1982, the court apparently felt it was somewhat under time constraints.5 In a 4-3 decision, the court denied the challenges. Yet, despite the character of the procedural challenges – the signature collection process and the single-subject rule – the court declined to consider the claims on their merits. Instead, it declared: As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.6 The dissenting opinion distinguished between pre-election constitutional review that is based on substance and pre-election review that is procedural in nature. Since both challenges to Proposition 8 were procedural in nature, the proper time frame for their review was prior to the election, as such review is necessary to prevent non-complying propositions from appearing on the ballot.7 The dissenting justices applied a two prong test and asked whether the proposition’s provisions were reasonably germane to one another and whether they were functionally related to a common underlying purpose. These justices declared that the proposition failed to comply with at least one of these prongs and therefore should be excluded from the ballot.8 On June 8, 1982, Californians approved Proposition 8. Challenges against the proposition were brought again to the court and the single-subject issue was raised anew. In September of that year, the Supreme Court of California confirmed the constitutionality of the proposition. With regards to the single-

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subject charges the court applied a liberal interpretation of the doctrine and asserted that the initiative’s provisions were reasonably germane. It rejected a stricter standard that would require a functional relation between the initiative’s components.9 Accordingly, the court in Brosnahan v. Brown (“Brosnahan II”) found the proposition to be in compliance with the single-subject rule.10 The court also considered other challenges and rejected them all: the constitutionality of Proposition 8 was conclusively settled. Only several years later, however, California courts confronted an interpretive difficulty pertaining to Proposition 8 and relating to the insanity defense available, in several circumstances, to criminal defendants. For over a century, California courts adhered to the M’Naghten test, which held that to “establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”11 However, in People v. Drew (“Drew”), the California Supreme court modified the insanity standard to make it more flexible and to allow those who are unable “to conform [their] conduct to the requirements of law” due to a “mental disease or defect”12. The court’s new interpretation of the insanity defense was more inclusive since it grants the insanity defense to persons who were aware of their acts and their wrongfulness but, nonetheless, due to some mental illness were unable to conform to the law. In this sense, the new standard was more lenient.13 Generally speaking, Proposition 8’s purpose was to limit the rights of criminal defendants.14 Among other things, it aimed at changing the insanity standard as defined by courts. The proposition added Section 25(c) to the penal code as follows: In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and


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quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.15 Proposition 8 clearly attempted to limit the scope of the insanity defense. Most notably, it barred the defense from persons who were aware of the wrongfulness of their actions, but were unable to conform to the law due to some mental disorder. This, at minimum, invalidated the court’s departure from the M’Naghten standard in Drew. Yet, as it is, the proposition went even further. According to the M’Naghten test, the insanity defense is available to anyone who either does not know the nature of his acts or is unable to tell right from wrong. However, the approved proposition stated that the defense will be granted only to those who are “incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (emphasis added.) The proposition used conjunctive language, the dual requirement decreasing the scope of the insanity defense. This was the interpretive difficulty presented to the courts in People v. Skinner (“Skinner”).16 In Skinner, the defendant appealed a conviction of the second degree murder of his wife for which he pleaded not guilty by reason of insanity. Skinner, who was on a one-day leave from the state hospital, believed that he had a Godgiven right to kill his wife, which he did. Both the trial court and the court of appeals found the defendant to be sane and guilty. In rejecting the insanity defense, both courts concluded that he failed to meet the standard since he fully understood the nature of his acts, notwithstanding the fact that he could not distinguish right from wrong.17 The courts rejected the defendant’s claim that the standard was met by proving only one of the prongs stated in Section 25(c) of the Penal Code despite the use of the conjunctive word “and.”18 The defendant appealed to the Supreme Court of California.19 The Supreme Court reviewed the history of the insanity defense in California. It stated the fact that for more than a hundred years, prior to Drew, California courts interpreted the insanity defense according to the M’Naghten test and its two aforementioned disjunctive components. The court acknowledged that the Drew decision in 1978 adopted a more lenient standard. It

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also noted that Proposition 8 established a statutory insanity defense for the first time in the history of California. Yet, the question was, declared the court, whether to apply the codified standard as it was – that is, as demanding proof of both prongs of the M’Naghten test – or to apply it in accordance with the original M’Naghten test, that is, by demanding that only one of the two prongs be met. The court, in a six-to-one decision held that the M’Naghten test should be applied as it traditionally had been applied, despite the fact that the literal wording of the proposition dictated otherwise. As a result, the defendant was able to take advantage of the benefits of the insanity defense. The court based its decision on several arguments. First, it stated that a literal reading of the statute would raise “serious question of constitutional dimension under both the due process and cruel and unusual punishment provisions of the Constitution”20 since it would raise the bar of the insanity standard too high and might result in “imposition of punishment on a mentally ill person for acts done without criminal intent.”21 Second, the court claimed that in “rewriting” the statutory language it was applying the true legislative intent. The court stated that, notwithstanding its obligation to apply unambiguous statutory language, it also had the power to rectify blatant errors on the part of statutory draftsmen.22 When it is manifestly obvious that legislative intent would better be served by rectifying statutory errors, the courts can rewrite the statute. In searching for legislative intent, the court went on to review the voter pamphlet. It conceded that the ballot summaries and arguments reiterated the conjunctive language as well as that the provision “could increase the difficulty of proving that a person is not guilty by reason of insanity.” Nonetheless, the court assumed that had the people intended to abandon the M’Naghten test and adopt a harsher standard their intent should have been “expressed in some more obvious manner than the substitution of a single conjunctive in a lengthy initiative provision.”23 Applying the statutory language literally as is would amount to a standard described as the “wild beast test,” and would make it extremely difficult to meet.24 The litigation and judicial treatment of Proposition 8 from its outset present a good illustration of some of the problems that


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result in the lack of a coherent theory of direct legislation. Had the theory of Qualified Respect been applied, I believe, most of the difficulties Proposition 8 brought to light would have been mitigated. The court declined to review the proposition prior to the election and when it eventually did review it post-election, it applied the liberal (“reasonably germane”) version of the singlesubject rule. Moreover, its interpretive maneuvers and argumentation in Skinner failed to take into account the uniqueness of the initiative institution. The theory of Qualified Respect suggests the advisability of a different treatment of the constitutional issue. Accordingly, Proposition 8 should have been blocked prior to election on single-subject grounds and the court should have chosen a different path in interpreting its insanity defense provision. Let us take a closer look.

II.

Legal Analysis under Qualified Respect

One of the most important implications of the theory of Qualified Respect involves pre-election judicial review. While the California Supreme Court declined to exercise review prior to election, the proper approach would have been exactly the opposite. The court reiterated its traditional stance, according to which “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.”25 Yet, aggressive judicial review here is exactly what was missing. Had the court exercised its review properly the extensive litigation and interpretive difficulties that later arose would have been prevented. The court’s reluctance to exercise judicial review on singlesubject grounds is even more peculiar since the single-subject rule is procedural in nature.26 It is primarily intended to prevent noncomplying propositions from reaching the ballot and not as a means for their invalidation after they are approved. As I argued above, invalidation on single-subject grounds is particularly undesirable after voters approve a proposition.27 As dissenting Chief Justice Bird prophesized:

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I fear that the tremendous time pressure surrounding this case has forced this court to set down precedent that may return one day to haunt us.… As the initiative and referendum processes become more and more frequently used by the people, the need for uniformity and predictability in the statutes and case law governing them grows. For this reason, I join my colleague Justice Mosk in urging that the court address the single-subject issue now, before the initiative is placed on the ballot. Should the court determine that the measure as presently drafted fails to satisfy that rule, an early resolution would enable the proponents of the measure to redraft the initiative. If a majority of the voters do favor some or all of the initiative’s provisions, a post-election ruling that the single-subject rule has been violated will only delay the ability of the people to implement their will. California’s citizens have a right to know now. The failure to rule on this issue does not implement the will of the people but merely postpones the problem, creating the possibility of an even greater frustration of that will in the future.28 [emphasis in original] But the California Supreme Court failed to review the initiative prior to election. When it did review Proposition 8, after election, it applied a liberal single-subject rule and upheld the initiative. According to the liberal version of the single-subject rule, a proposition will be upheld if its components are reasonably germane. That, as shown elsewhere, is a matter of abstraction.29 Indeed, in some ways Proposition 8 proponed one purpose, that is, “protection of the public from criminal activity.” Yet, to allow such overarching purpose to be considered as a single-subject is exactly what the “functionally related” version of the single-subject rule is designed to exclude. After all, the proposition contained a garden variety of provisions amending and repealing constitutional and other statutory provisions. To begin with, a compilation of constitutional and statutory provisions under one proposition should immediately raise suspicions since it begins to resemble legislative reform more than a contextualized, specific, and targetoriented proposition.30 Also, it is hard to see how the several


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provisions of the proposition could be categorized under a singlesubject. This is true under the “functionally related” test; the failure of the “reasonably germane” test to invalidate the proposition highlights its impotence. As did the dissenting Justice in Brosnahan I, I argue that it is difficult to justify grouping under the auspices of a single statute provisions ordering monetary restitution to crime victims, along with plans for the abolition of treatment programs for sexual offenders, together with plans to make the schools safer, while at the same time calling for the abolition of the diminished capacity defense.31 It is hard to see how the right to restitution is related to rules of evidence or how limiting criminal defenses is related to allowing crime victims to attend sentencing procedures.32 While these provisions may all be desirable they are not functionally related to each other. Theoretically, it could have been possible to break down the proposition and submit it as several individual propositions each standing on its own merit.33 Having allowed the proposition to pass the single-subject rule, the court, in effect, was allowing any proposition which refers “to ‘property’ or ‘women’ or ‘public welfare’ or ‘the pursuit of happiness’… no matter how diverse”34 its terms are to be considered as containing a single-subject as well.35 And that is absurd. Indeed, the theory of Qualified Respect suggests that Proposition 8 should have been barred from submission to the people. Judicial review should have been exercised before the election, precisely because that is the appropriate time for exercising such review. Moreover, application of the “functionally related” version of the single-subject rule would have prevented the proposition, in its current form, from being voted on. The theory of Qualified Respect also plays out in the Skinner cases. There, the courts confronted an interpretive dilemma. The choice was between applying the literal wording of the statute or rewriting it. The lower courts chose the former while the California Supreme Court took the latter route. Attempting now, more than twenty years later, to ascertain what the right legal outcome should have been is particularly difficult, precisely because of the nature of the theory of Qualified Respect and its heavy reliance on the people’s real intent. Yet, to be sure, the Supreme

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Court’s reasoning failed to consider some features of direct legislation. Had the justices considered the facts under a coherent legal theory, such as the one I propone, then their argumentation, and perhaps even their conclusion, would have been altered. The California Supreme Court based its decision on the “avoid constitutional problems” canon and on the strict application of voters’ intent.36 But I would argue that the court had inappropriately referred to the “avoid constitutional problems” canon while not being diligent enough in its search for the voters’ intent. First, the “avoid constitutional problems” canon is entirely inappropriate in the initiative context. This canon is different from the classic “avoid unconstitutional interpretation” canon. The latter commands courts to do their best in order to interpret a statute along constitutional lines, but the former frees them from that task. By avoiding a constitutional difficulty the courts are forced to reject statutory interpretations that are constitutional simply for the sake of avoiding a constitutional problem that may not even exist. But if a statute is unconstitutional it should be invalidated just as when it is within constitutional boundaries it should be upheld. Even if this premise is rejected in the context of ordinary statutes, it is extremely crucial that it be adhered to in the initiative context. In avoiding constitutional difficulties, courts free themselves from deciding constitutional issues on the merits, which may result in interpretations that bypasses the voters’ true intent. If initiatives are a vehicle of conveying the people’s intent such interpretive maneuvers must be avoided. That is not to say that if it is unconstitutional it should be always followed. But by avoiding constitutional problems the courts are, by definition, ignoring a range of possible interpretations that might show the statute to be both constitutional and most in accordance with the voters’ intent.37 The second point regarding the court’s interpretation of Section 27(c) has to do with the voters’ intent. Clearly, the court was correct in stating that the judiciary can sometimes rewrite a statute in order to preserve the true legislative intent. This is true with ordinary statutes and it is certainly true with initiatives. Yet, I am uncertain the court actually followed its own rhetoric. When


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facing unambiguous statutory wording there needs to be an inescapable reason to rewrite the provision. Nothing short of unequivocal evidence that the legislature meant other than the literal meaning of the language is a valid justification for abandoning the text, which, as the court has specifically admitted, is, most often, the best reflection of legislative intent.38 It seems, however, that the court was more concerned with conforming the statutory provision to traditional jurisprudential doctrine than actually ascertaining voter intent. After all, when it analyzed the ballot summaries and arguments it found that the same conjunctive language appeared and the Legislative Analyst’s analysis attached to the proposition clearly stated that the new provision “could increase the difficulty of proving that a person is not guilty by reason of insanity.”39 Moreover, as the Court of Appeals ironically observed, it was the California Supreme Court itself which, in Brosnahan II, asserted that Proposition 8 was aimed at “achieving more severe punishment for, and more effective deterrence of, criminal acts, [and] protecting the public from the premature release into society of criminal offenders….”40 Therefore, “[t]he construction requiring proof of both prongs [of the M’Naghten test] significantly limits the class of persons who can be found insane. It therefore subjects a greater number of persons to criminal sentence rather than for care and treatment or release into the community. Such construction is consistent with the perceived interest of the voters in punishing and deterring criminal offenders and thereby providing greater protection to the public.”41 The California Supreme Court’s next step was to declare that there should have been clearer legislative intent to support the current statutory language. In absence of such perspicuous intent, it decided to rewrite the statute. However, in order to rewrite a statue more than the mere absence of clear legislative intent in support of the literal wording is necessary. In fact, we would need clear evidence from the legislature suggesting that the statute is literally contrary to original intent. Yet the court failed to provide any such evidence. When considering this precept against the theory of Qualified Respect, in which legislative intent should play an even greater role than it does with ordinary statutory

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interpretation, the California Supreme Court’s reasoning becomes even less persuasive. A more plausible explanation of the court’s decision is that it was simply reluctant to affirm bad law. Indeed, a literal reading of the new insanity standard as demanding both prongs of the classic M’Naghten test probably reflects bad policy. The court’s role through, specifically in the initiative context, is not to make sure the people decide good policy, but instead to make sure their policy is given full effect, regardless of its merit (assuming it is constitutional). Absent any clear showing that the people merely wanted to restore the classic M’Naghten test, it is hard to rationalize the court’s choice. More convincing is Chief Justice Bird’s dissent: I cannot ignore the fact that [the people] adopted language which unambiguously requires the accused to demonstrate that “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (Id, [emphasis added].) There is nothing in the statute, in Proposition 8 as a whole, or in the ballot arguments that implies that the electorate intended “and” to be “or.” However unwise that choice, it is not within this court’s power to ignore the expression of popular will and rewrite the statute.42 It is hard to assess today what the voters intended in 1982. It is clear that Proposition 8 was intended to counter balance against what the people perceived as a lenient judiciary in the criminal context. But just how much tougher did the voters intend the insanity test to be is hard to ascertain. The court explored the ballot pamphlet, which was definitely an appropriate starting point but to what extent the ballot pamphlet actually reflected the voters’ intent is unclear. The pamphlet was a relevant interpretive source but it should not have been the only one considered. What the court should have done, but chose not to do, was to look into additional informal materials that could perhaps have thrown more light on the interpretive dilemma it faced. Among the materials the court might have looked at were those related to the media campaign, polls, and statements from supporters and opponents of


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the proposition. One cannot be sure that analysis of such informal evidence would have led the court to a different resolution, especially considering the doubts as to whether the court was actually less interested in the voters’ intent than the making of good policy. Nonetheless, when interpreting initiatives, where I argue voters’ intent should be the guiding star, resort to any helpful evidence should be welcomed. But even if, in arguendo, the court faced a real interpretive dilemma –evidence of popular intent raised serious doubts as to the literal reading of Section 25(c), but rewriting the statute still seemed extreme – it could have used the narrow construction rule of thumb and reached the same conclusion it ultimately did. The argument directly flowing from the theory of Qualified Respect would have taken the following form: prior to Proposition 8 there existed a non-statutory insanity defense and the people clearly desired to eliminate part of the defense and decrease its scope. Proposition 8 attempted to do that, but to what extent was unclear. Qualified Respect suggests that in cases of real doubt narrow construction should be the rule. A reading of the statute that replaces the conjunction with disjunction limits the application scope of the proposition and is therefore desirable. Had the court justified its resolution on these grounds the decision would have at least appeared more genuine. Instead of finding clear voter intent where none existed, the court could have grounded its decision on a neutral interpretive canon which is more appropriate in the initiative context. The court, it seems, was more preoccupied with making sure Proposition 8 did not turn into a statutory monster than with reaching its resolution through appropriate reasoning. Ultimately, the litigation involved with Proposition 8 demonstrates the need for a coherent legal doctrine for initiatives. Accordingly, Proposition 8 should have never been submitted to the voters in the first place. The court should have exercised its review powers prior to the election and invalidate the proposition on single-subject grounds. Had the people wanted to, they could have then severed the proposition and resubmitted it as several independent initiatives. Had this been the case, presumably the specific wording of Section 27(c) would have been given more attention. And this is precisely one of the reasons for the single-


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subject rule. Had the people submitted separate, specific, and welltargeted propositions, the interpretive doubts the court faced later would probably have been avoided. Yet, the court incorrectly hesitated in exercising its review power. As a result, it was subsequently forced to ignore, some of its traditional interpretive doctrines so that it could kill the monster that should have never been born.

2.

NARROW CONSTRUCTION, RETROACTIVE LEGISLATION AND PROPOSITION 51

I.

Background

Oftentimes, courts face an interpretive dilemma as to the purview of a newly drafted statute and whether it should apply to pending cases that are currently in different stages of litigation. Here, courts should decide whether the statute applies strictly to prospective cases or whether it should have an effect on currently litigated cases. Obviously, courts should first analyze the statute’s provisions because such assessment may resolve the dilemma. After all, legislators often explicitly state whether the statute should apply retroactively and if so to what extent. But absent explicit directives courts must resort to other means, and they indeed have developed interpretive canons to assist them in such instances. In California, for example, courts have declared that as a rule of thumb, statutes apply only prospectively and, absent clear provisions stating otherwise, courts are reluctant to apply them retroactively.43 In Evangelatos v. Superior Court44 (“Evangelatos”) the Supreme Court of California reviewed constitutional challenges to Proposition 51, also known as the Fair Responsibility Act. The proposition sought to codify the joint and several liability doctrine in tort law. Prior to the proposition’s approval, a plaintiff awarded damages in court against multiple defendants was allowed to collect both economic and non-economic damages, in their entirety, from any one of the defendants. It was then the defendants’ responsibility to split the costs among themselves. Proposition 51


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declared that the plaintiff could still collect his economic damages under the joint and several doctrine from any one of the defendants. In contrast, he could collect non-economic damages from any one of the defendants only to the degree of that defendant’s relative proportion in the overall fault. So, for example, a plaintiff that was awarded 10 dollars for economic damages and 40 dollars for non-economic damages from two defendants - whom the court found to be at fault in a 75-25 percent ratio - and has chosen to collect his damages from only one of them, will be able to collect the entire 10 dollars (economic damages) no matter which defendant is paying him, but will only be allowed to collect another 10 or 30 dollars (non-economic damages) depending on which defendant he chooses to collect from. The plaintiff, Evangelatos, was injured in 1980 when he was 18 years old while apparently playing with chemicals purchased in a retail store. In 1981, he filed an action for damages against multiple defendants. The case was assigned for trial almost five years later in 1986. Meanwhile, Proposition 51 was approved. The question arose as to the effect of Proposition 51 on Evangelatos claims. Both the trial court and the court of appeals held that proposition 51 was both constitutional and that it had retroactive effects on the present case. As a result, Evangelatos’ ability to collect damages from any one of the defendants would be impaired, in accordance with the newly codified and modified joint and several liability doctrine. The Supreme Court of California affirmed the constitutionality of the measure but denied its retroactive application altogether. As a result, Evangelatos was able to claim his entire damages from any one of the defendants in accordance to the law prior to the approval of Proposition 51. As for the constitutionality of the statute, the court rejected the “facial vagueness” challenge brought by the plaintiff. In order to invalidate a statute, a “party must do more than identify some instances in which application of statute may be uncertain or ambiguous; he must demonstrate that law is impermissibly vague in all of its applications.”45 As for the question of retroactivity, the court referred to section 3 of the Civil Code, governing the Civil Code’s statutory interpretation in general, reiterated that “[n]o part

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of [this Code] is retroactive, unless expressly so declared.”46 The court rejected the dissenting opinion’s assertion that the canon against retroactivity is subordinate to legislative intent. In reality, the canon against retroactivity has greater import than simply being a tie-breaking canon to be invoked only when legislative intent is unascertainable.47 Since there is “nothing in the language of Proposition 51 which expressly indicates that the statute is to apply retroactively”48 the court found no justification to deviate from the well-established canon against retroactivity. After examining “brochure materials,” the court additionally declared that even external legislative intent suggesting retroactive application could not be found.49 Ultimately, the court declared, because “past cases have long made it clear that initiative measures are subject to the ordinary rules and canons of statutory construction”50 and since “[n]either the Legislative Analyst’s analysis of Proposition 51 nor any of the statements of the proponents or opponents that were before the voters in the ballot pamphlet spoke to the retroactivity question”51 there was no room to deviate from the nonretroactivity rule. Moreover, informed voters contemplating the issue presumably would have assumed that, absent express retroactivity provisions, the proposition indeed did not apply retroactively.52 Yet, the court also needed to address a difficulty with prior decisions where it retroactively applied a change in tort law doctrine. In Li v. Yellow Cab Co.53 (“Li”), the court changed the prevailing common law “all-or-nothing” negligence doctrine and shifted to a legal regime of comparative negligence under which contributory negligence can be attributed to the plaintiff and lead to a proportional decrease of the damages the defendant is required to pay. But in Li, the court applied the changes retroactively to encompass some pending litigation. The court was also willing to apply legal reforms retroactively in another joint and several liability case, American Motorcycle Assn. v. Superior Courts54 (“American”). As the court itself described, both decisions are milestones in the gradual evolution of tort law in California, and, in fact, cleared the way for Proposition 51 to take the concept of relative negligence a step further.55 These decisions notwithstanding, in Evangelatos the


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court refused to follow the path it took in previous cases; the need to harmonize these decisions became obvious and pressing. Justice Arguellos, writing the majority opinion in Evangelatos offered the following reasoning for distinguishing Evangelatos from the previous cases.56 First, in Li and American, the court retroactively applied a judicial reform of existing tort law doctrine and not statutory reform and it is well established that “statutes operate only prospectively, while judicial decisions operate retroactively.”57 Moreover, since Li and American involved a judicially initiated reform, it was only appropriate that the court itself decide whether or not to apply it retroactively. In contrast, in Evangelatos, the court was contemplating retroactive application of a statutory reform and, thus, it was appropriate that the legislature – the people in this case – decide whether or not they wished to apply it retroactively, not the court.58 The dissenting Justices took a different route. “The paramount consideration here, as in any other matter of statutory construction, is to ascertain the intent of the enacting body so as to effectuate the purpose of the law.”59 In order to determine the voters’ intent, the dissenting opinion considered two factors: the history of the proposition and its remedial character. It criticized the majority’s approach: The majority laudably prefaces its discussion of Proposition 51 with a “brief historical perspective.” The perspective provided, however, consists almost entirely of prior decisions of this court. There is, curiously, almost no mention of the dramatic context in which Proposition 51 was conceived and adopted, of the so-called “liability crisis” or the pitched battle among government agencies, business interests, insurers, and consumer advocates over the origins of the perceived crisis or the efficacy of Proposition 51 to alleviate it; no mention of the increasingly common multi-million dollar tort judgments or the alleged inequities of the “deep-pocket” rule that saddled public agencies and other institutions with damages far beyond their proportion of fault; no mention of the prohibitive insurance premiums that had forced numerous persons and entities from doctors to day-care

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centers, municipal corporations to corporate giants, to either go “bare” or go out of business; and no mention, finally, of the electorate’s overwhelming approval, by a vote of 62 percent to 38 percent, of the tort-reform measure designed to mitigate this crisis, the Fair Responsibility Act of 1986, or Proposition 51.60 The dissent reviewed the circumstances that led to Proposition 51 and concluded that applying the statute as broadly as possible would best conform to the voters’ intent.61 The voters wanted to reform the current tort doctrine, mainly because they sought to affect the insurance market, and their desire needed to be taken seriously. Therefore, argued the dissenting opinion, the court should apply Proposition 51 retroactively even to pending litigation including Evangelatos. As noted earlier, Proposition 51 was designed with the express intent to “remedy... inequities” in the existing rule of joint and several liability, inequities which threatened grave and imminent harm to the public weal. Indeed, such reform was “necessary,” the Act declared, “to avoid catastrophic economic consequences for state and local governmental bodies as well as private individuals and businesses.” If this was not language evocative of “the logic of retroactive application,” then nothing is.62 Moreover, it is extremely hard to settle the unwillingness to apply retroactively the statutory reform of Proposition 51 with the court’s retroactive application of legal reforms in a line of other cases, such as, Li and American. These cases involved retroactive application of statutes in both criminal and civil law. 63 I would note, finally, that our earlier discussion of Li v. Yellow Cab Co. and American Motorcycle Assn. v. Superior Courts also bears directly on the issue of fairness to parties who might have relied on the preexisting law. As the majority acknowledges, our decision to apply the principles of Li and American Motorcycle retrospectively affected substantial rights and expectations arising out of transactions that occurred before those decisions. The relatively limited reform effected by Proposition 51 pales in comparison. Yet the same court that unhesitatingly determined to apply retroactively the sweeping changes


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effected by Li, now purports to be offended when the same broad application is urged for the limited reform contained in Proposition 51. It is a puzzlement. It is an irony, as well. For although, as the majority notes, Li, “served to reduce much of the harshness of the original all-or-nothing common law rules, the retention of the common law joint and several liability doctrine” in American Motorcycle, nevertheless perpetuated other inequities. Proposition 51 “was addressed,” the majority observes, to these remaining problems. If the inequities in the rule of contributory negligence compelled a retrospective application of Li, notwithstanding its impact on settled expectations, surely the injustice inherent in the unlimited rule of joint and several liability compels an equally broad application of Proposition 51. The dissent rejected the majority’s reasoning in distinguishing Evangelatos from previous cases. Regardless of the identity of the institution bringing the legal reform, be it the legislature or the judiciary, the question of retroactivity should be decided by “considerations of fairness and public policy.” As such, it makes no sense to apply the doctrinal tort law reforms in Li and American retroactively and decline to do so in Evangelatos.

II.

Legal Analysis under Qualified Respect

Evangelatos is another interesting demonstration of the added value of the theory of Qualified Respect. Just like the Brosnahan cases discussed above it seems that at least, rhetorically, the majority in Evangelatos was off the mark. My claim is not so much that had the courts considered the theory of Qualified Respect they would have reached a different legal result but rather that introducing considerations entailed in the theory of Qualified Respect would have allowed them to employ a different line of reasoning and would have also made their case stronger. The majority got it right, at least in one point, by refusing to invalidate Proposition 51 on facial vagueness challenges. Even if vagueness is otherwise sufficient grounds for constitutional challenges against propositions, especially prior to election,64 Proposition 51 did not seem to be an appropriate subject for such review. First, nothing in Proposition 51 was significantly vague or

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ambiguous; nor did the proposition involve delegation. As the court rightly argued, to invalidate a statute as facially vague one must do more than show that its application in several instances is uncertain. However, the court could have added that the statute, having been adopted by the people, raised the bar for post-election challenge. As the theory of Qualified Respect suggests, invalidation of an approved proposition should be a tool in extreme cases only. If facial vagueness is a matter of quantity, then the required quantity of unpredictable instances when an initiative is at stake should be greater. The question of retroactive application of an initiative should be decided in accordance with the voters’ intent, even if it is not explicit in any of the provisions. Something like a relaxed canon against retroactivity is in place with regard to initiatives. If an ordinary statute demands an explicit provision in order for the courts to apply it retroactively, in the initiative context where the voters’ intent guides interpretation, no explicit provision is required, so long as retroactive application was clearly intended. This is exactly what the Evangeletos court refused to accept when it declined to subordinate the canon against retroactivity to clear legislative intent.65 In this sense, the minority in Evangelatos were right on the money when they declared that “legislative intent“ was what mattered. In the initiative context, the canon against retroactivity should ordinarily be subordinated to legislative intent. Moreover, as the dissenting opinion in Evangelatos correctly pointed out, the majority was looking for the answer in the wrong place when it attempted to decide the issue by looking into previous judicial decisions. Instead, it ought to have looked at interpretive sources which could have elucidated the voters’ intent when they approved the proposition. The ballot pamphlet by itself is not enough. Any relevant information should be examined when making a determination of the voters’ intent. It must be conceded, however, that nothing can guarantee that such considerations will necessarily lead to the conclusion that the voters indeed wanted proposition 51 to apply retroactively. The dissent in Evangelatos did not prove this. To suggest that the voters wanted to bring about dramatic change by approving Proposition 51 is obvious enough, but that, without more, does not establish


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that they wanted to go so far as to make the rule a retroactive one. In this connection, the dissent also did not meet the burden of evidence, in the form of media campaign statements, experts’ testimonies or polls, any of which may or may not have shown that the voters intended for their proposition to apply retroactively. Both the majority and the minority, applied what they thought were traditional rules of interpretation, which were not flexible enough to admit evidentiary source materials to the decision-making process. Even if the dissent did maintain that legislative intent should be the most important consideration, it did not justify this assertion on any grounds unique to direct legislation. Instead, it shared the majority’s opinion that “initiative measures are subject to the ordinary rules and canons of statutory construction”66 which apply to ordinary legislation, an assumption that runs counter to the theory of Qualified Respect. The issue on which any such question should be decided upon is the voters’ intent. Where that cannot be ascertained, as I suspect was the case in Evangelatos, the court should construe the proposition narrowly. The example of retroactivity may serve well to illustrate how the theory of Qualified Respect favors the rule of narrow construction.67 Absent a clear indication of legislative intent, the courts should not interpret an initiative broadly. Had the majority followed this rule of thumb, the court’s decision would have been easier for them to justify, without having to perform the interpretive acrobatics used in distinguishing Evangelatos from Li and American. Without addressing the issue of judicial vs. statutory reform with regard to retroactivity, the court might simply have argued that Evangelatos was an exceptional case precisely because it involved an initiative, which calls both for narrow construction and non-retroactivity. Since the court did not base its argument on a coherent theory of direct legislation, these arguments were unavailable to it. But to summarize, absent evidence clearly indicating that the initiative was intended by its supporters to be applied retroactively, its scope should be minimized. The courts may reason more effectively if they accept the prescriptions of the theory of Qualified Respect.


CHAPTER 7:

CONCLUSIONS AND FUTURE DIRECTIONS

The main purpose of this book was to present a coherent legal theory for direct legislation. It has attempted to present a theory that is based on recasting the initiative institution and suggesting legal implications accordingly. I have claimed that initiatives are a legislative tool to be used occasionally, for reflecting intensely popular political desire for change, and that it functions best in well delineated areas, where the goals sought are detailed and specific. Being an unmediated directive of the ultimate sovereign, the role of the initiative is to counter-balance and ameliorate the imperfections of the representative system while maximizing overall political satisfaction. I have also argued that initiatives deserve unique treatment from the courts. The present situation, in which, in essence, no distinction is made between ordinary statutes and initiatives, is unacceptable. Building from my conceptualization of initiatives, I have suggested that initiatives are to be granted greater normative weight within a well delineated and minimized statutory scope. They ought to be treated with “Qualified Respect.” I have argued that initiatives should be interpreted in such a way that ascertaining legislative intent, that is, the voters’ intent, becomes 167

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the ultimate goal. Legislative intent is no mere abstraction, as used here. To the extent possible, the courts should read initiatives in light of the actual intent of the voters who approved them. Whenever there is doubt, an initiative should be interpreted narrowly. To achieve this goal, I have suggested several doctrinal modifications relating to canons of interpretation as well as conflict of statutes and stare decisis. I have also argued that the courts should take into account the uniqueness of initiatives whenever subjecting them to review. In general, courts should refrain from invalidating initiatives after they have been passed, but review them strictly prior to submission to the polls. To better to accomplish these goals, I have suggested numerous modifications to such existing legal doctrines as the right of standing, facial and as-applied review and desuetude. I have also offered some novel approaches to the single-subject rule and the nondelegation doctrine which, I argue, can serve the rationales of the theory of Qualified Respect. Qualified Respect is based on a full appreciation, or respect, for initiatives as an expression of the will of the people, without overlooking the limitations and difficulties that are inherent to this unique legislative tool. In this sense, the theory of Qualified Respect may be a more balanced and complete approach to the subject than other treatments of it. In sketching out the legal implications of the theory I did not purport to be conclusive. There is certainly much more to be said, in terms of legal doctrine, about initiatives as a unique legislative tool. Thus, my suggestion should be taken as only the first step in a path that many others may follow. There are quite a few relevant legal issues that I have not yet tackled. How should the courts deal with conflicting initiatives that become statutes? Should the courts attempt to harmonize them or give one or the other greater force? How should the severance doctrine be applied in the initiative context? How should the courts treat legislative amendments to initiatives? Are amendments to initiatives to be interpreted under the traditional rules of statutory interpretation or by some other standard, such as the rules of Qualified Respect? In the initiative context, should the role of appointed federal judges be any different from that of elected state judges?

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Such important and interesting questions must command serious academic attention. I have attempted to point out one possible direction that, I think, is both coherent and justified. But there is still more work to be done. My hope is that this work may serve as the foundation for future efforts.


APPENDIX:

CONTEXTUALIZING QUALIFIED RESPECT

The approach this book has taken is that initiatives are unique and deserve distinct legal treatment. Hence the attempt to reconceptualize initiatives and translate this conception into legal theory and doctrine. Traditionally, when legal scholars have dealt with initiatives it has usually been with regard to some specific issue or feature of initiatives. But, as far as I know, there has not been an attempt to present a coherent legal theory of initiatives that can justify it as a whole as well as offer concrete normative prescriptions. Previous attempts to present such a comprehensive theory of initiatives have failed to take a broad view of the initiative process, focusing only on some features of the initiative institution while failing to take into consideration others. Such theories have failed to take account of the fact that direct legislation is a valuable tool justified by some of the more profound justifications for democracy, while procedures and mechanisms peculiar to direct legislation urgently call for unique analysis from a legal perspective. Most of the theories are motivated by hostility and skepticism toward the initiative institution. The purpose of this appendix is to present some such scholarly theories and to contrast them with the model presented of Qualified Respect. 171

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1.

QUALIFIED RESPECT IN CONTEXT: INTERPRETATION

In focusing on certain flaws of the initiative institution, scholars critical of direct legislation have prescribed interpretive methods that aim at overcoming or minimizing these flaws. By contrast, other writers who are less critical of the initiative process, have usually not prescribed interpretive methods specially designed for the initiative context, but have preferred to present ordinary statutes and initiatives in much the same way. I will briefly summarize some of these approaches.

I.

The Elusiveness of “Voters’ intent”

The unique character of a legislature is perhaps the singlemost important factor influencing those who have written about how initiatives ought to be interpreted. Jane Schacter’s article from the mid-1990’s is a suitable point of departure for our survey. Even though her article is not the first attempt to directly deal with interpretation of initiatives it is perhaps the most widely cited article in this area.1 Schacter’s main target is judicial reliance upon “legislative intent” in the initiative context. In her article, she presents findings of a thorough case law survey she conducted according to which the courts have treated initiatives and regular statutes alike.2 The courts typically have used “popular intent” as a guide to the interpretation of initiatives while, for the rest, using ordinary interpretive techniques.3 Schacter discusses the sources to which the courts have turned in discerning popular intent. Where one might have expected the unique legislative identity of the initiative to call forth a thorough investigation of a large variety of sources and materials, one finds instead that the courts for the most part have not modified their standard interpretive approach. Aside from minor exceptions, when investigating popular intent the courts have, to the extent available, turned to sources similar to those they use when investigating the intent behind ordinary statutes.4 Schacter makes a distinction between formal and informal sources.5 Formal sources contain the statutory wording and

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language of the initiative itself; legal texts (for example, related statutes and their legislative history, relevant case law, related administrative rulings and materials and legal treatises); official ballot materials and all other officially printed documents and statements that are a mandatory part of the initiative process. These are used by the courts in lieu of interpretive sources such as committee reports, floor debate records and other documents related to ordinary legislation that, obviously, cannot be used in the initiative process.6 Informal sources include everything else. Here, she lists media reports and analyses (newspapers, television or radio accounts, exit polls and other opinions etc.), advertising, such as posters and bumper stickers, as well as anything else that does not fall into the other categories. Schacter’s research shows that the use of formal sources is, by far, more frequent than that of informal sources. Paradoxically, if legislative intent is what the courts are really looking for, it would make more sense to resort to informal sources than to the formal ones.7 If the task of discerning voters’ intent is at all possible, then, naturally, the place to find it may be among informal sources, since they have more influence upon, and in turn are more influenced by, the voters’ opinions. Therefore, formal sources for statutory interpretation, ought to play a lesser role in the context of initiatives. Schacter supports this finding with empirical studies which show that “media communications and political advertisements are the most important sources shaping how voters understand the initiative proposals on which they are asked to vote.”8 Yet, the courts, their rhetoric about unraveling voter intent to the contrary notwithstanding, tend to resort primarily to formal rather than informal sources. Schacter calls this the “Paradox of the Inverted Informational Hierarchy.”9 The natural remedy to this problem would be to invert the practice and require the courts to rely more on informal sources, even at the expense of formal sources. In analyzing the problem, Schacter points to the fact that classic intentionalist approaches have become less and less popular. The main criticism against intentionalism that Schacter discusses is related to the problem presented by the concept of collective intent.10 The difficulties

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associated with determining legislative intent in the ordinary context are exacerbated in the initiative context, she argues. While it may be possible to determine the collective intent of a limited number of legislators, all belonging to a finite number of political parties with well-defined platforms, it is much more difficult, if not impossible, to determine the intent of the mass electorate, as diverse as it is, spread out all over the map and enmeshed in so many different “interpretive communities.”11 Moreover, the task of investigating mass media and other informal sources is not wellsuited to the judiciary since “judicial immersion in the unwieldy body of images, words, and political slogans that may comprise the media coverage and advertising related to a ballot measure is likely to intensify, not reduce, the problems of indeterminacy that already undermine the search for popular intent.”12 Determining legislative intent in the unique context of direct democracy is also more complicated than in the ordinary legislative context. The inability of any legislature or anyone else to foresee all future applications of an enacted statute is an inherent risk attendant upon any piece of legislation. This uncertainty intensifies when it comes to popular legislation because the extent of unforeseeable instances is even greater, since propositions are “presented to voters largely in a legal vacuum, unconnected in any specific way to the surrounding legal context.”13 As a result, many of the problems that the courts will later confront are “outside the plausible realm of voter contemplation.”14 Thus, an appeal to the voters’ intent will not provide any comfort since the courts may discover that, in such unforeseen instances, the voters could not have had any intent. Even if, as Schacter notes, not all legislators have a particularly high level of legislative awareness, still, “given the staff, legislative analyses, and other resources available to professional lawmakers, it is reasonable enough to expect them to know something about the ‘legal landscape’ into which a new law will fit.”15 Another problem related to popularly enacted laws has to do with the voters’ lack of awareness of the meaning of many technical legal terms. Terms and concepts such as “reasonable,” “joint and several liability,” “right of contribution” and the likes are laden with legal meaning, the specifics of which are most likely not

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well known to the average voter. The use of such terms in the language of a statute may trigger special judicial treatment and entail significant legal consequences. Even if future interpretation of a statute is unpredictable, the professional lawyers who usually draft propositions know much better than the average voter how the courts, within some limits, are likely to interpret the terms of a bill. They may be tempted to take advantage of the public’s ignorance to achieve goals which were never intended by the voters. The use of ambiguous or vague terms may help the drafters to overcome public political opposition they would face if the proposition were clearly drafted. Similarly misleading practices have been observed even in the context of ordinary legislation, but the likelihood of their occurring in the context of direct legislation is far greater.16 Schacter notes that the risk of voter manipulation is especially great where a proposition is long and complex and where “legally significant details can easily be buried.”17 Schacter offers two practical suggestions to overcome or mitigate the shortcomings of direct legislation. First, she calls for interpretive rules that “democratize” the process of direct legislation. Schacter claims that the rules for interpreting initiatives must take into account any democratic impulses that are compromised in the process of direct legislation. Perhaps as a way of compensating for the lack of legal sophistication among the voters, Schacter’s first suggestion is to allow greater public participation in post-enactment litigation in order to make up for the absence of pre-enactment deliberation. Practically speaking, Schacter suggests that the “courts [maximize] procedural opportunities for participation by a range of interests... [by] liberally granting applications for intervention and for amicus curiae participation for unrepresented, or even unorganized, interests.”18 By allowing more voices to be heard in the courtroom, by compensating for the lack of pre-enactment deliberation with postenactment deliberation, Schacter hopes to overcome a major shortcoming of the initiative process.19 Schacter’s second suggestion addresses the problem of “informational pathology,” that is, the likelihood of abuse of the initiative process by highly organized and well-funded small interest groups.20 She maintains that any problem related to the linguistic

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character of a statute, its structure and its length, should serve as a warning sign that the voters are being misled, the remedy for which, according to Schacter, is that “in the absence of a claim or finding of unconstitutionality, courts should be reluctant to construe ambiguous words in initiative laws expansively.”21 Application of such a rule would encourage initiative drafters to keep their propositions short and simple.22 In a footnote, Schacter notes that her suggestion is only limited to initiatives that do not face questions about their Where there are constitutional questions constitutionality.23 involved, Schacter prefers broad statutory interpretation that would allow the court to strike down the initiative as unconstitutional. Only where there is no fear of unconstitutionality, and thus no option of striking down the initiative, should her narrow construction rule be applied. Schacter concedes that her suggestions are not a guaranteed panacea. But she claims that opening up the courtrooms, together with the non-universal narrow construction of selected initiatives, may bring problems in direct legislation to the forefront, which may contribute significantly to alleviating those problems by politically inspiring legislative reform. A plausible reform, in her mind, would include placing limits on the subject matter of initiatives; a requirement for simple jargon and structure; and perhaps even reconceiving the initiative as a “general policy directive,” not as a vehicle for legislation.24 Many scholars have joined Schacter in focusing on the problems of the voters’ intent and their relative lack of legal sophistication. Others have been inspired to call for unique interpretive rules.25 One such call focuses on voter ignorance of prior legislation and technical terms.26 The assumption that legislatures are or should be aware of previous legislation is a basis for interpretive canons that promote reference to other statutes. While such assumptions may be accurate as applied to professional legislators, they may be inaccurate as applied to the voters.27 Even if we could establish that the average voter is able to comprehend the purpose of a proposition or its immediate consequences, it is not likely that we could establish that he is entirely or sufficiently familiar with the legislative background of a proposition nor even

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the full significance of a specific wording or clause.28 To presume a higher state of knowledge among the voters than they possess would be to risk interpreting statutes against the will of the people. Haste in interpreting initiatives by reference to other statutes may obscure the text of the initiative and result in an unjustified departure from actual voter intent.29

II.

The Voters and Normative Considerations

Phillip Frickey’s call for modified interpretive rules is also based on flaws he identifies in the initiative process.30 Frickey, however, is less concerned with voters’ informational deficiencies than he is with their lack of constitutional commitment. The unique character of the legislature in the initiative context renders some of the presumptions courts often make in statutory interpretation inappropriate with initiatives. First, the legislature is presumed to be a protector of constitutional values. Thus, it makes sense to interpret statutes in accordance with such values. But the electorate cannot be presumed to have any duties to preserve or advance constitutional values since voters were never sworn into office.31 Furthermore, assumptions as to legislators’ rationality and their desire to legislate harmoniously cannot be applied to the mass electorate.32 Many interpretive canons, asserts Frickey, such as those favoring coherence and continuity, are premised on these assumptions. Hence, their application in the setting of direct legislation is inappropriate.33 On the whole, Frickey’s view is that direct legislation is an inferior form of legislation and the main differences between direct legislation and ordinary legislation leads Frickey to make three suggestions. First, he calls for modification of the avoidance canon, that is, avoiding constitutionally problematic readings of statutes. In the context of ordinary legislation it is invoked in order to interpret a statute in a manner that does not suffer from constitutional problems or doubts, even if that chosen interpretation is not the most plausible reading of the statute. This canon rests upon specific assumptions as to the legislature and its constitutional commitment and awareness. In the context of direct

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legislation, however, courts, if they wish to respect the voters, should be less willing to interpret an initiative in a manner that undermines its evident purposes. Hence, courts should do their best to stick to the statutory text and to the voters’ evident core purposes, even at the cost of invalidating the statute as unconstitutional. Frickey’s claim is that interpreting a statute against its evident meaning in order to avoid constitutional disputes fails to give the voters their due. He believes that giving an initiative its obvious reading, and then striking it down, is both more respectful of the will of the people and, frankly, more candid. Only when there is real doubt as to the text of the statute, or as to its purposes, should the courts feel free to interpret the statute in accordance with the ordinary canons of interpretation. Frickey asserts that there will be more available readings for an initiative than there are for ordinary statutes since there are less constraining interpretive sources in the initiative context.34 Second, initiatives that are in conflict with ordinary statutes should be interpreted narrowly. That is, the preemptive force of initiatives should be weakened and nothing less than an absolutely clear statement would be required for an initiative to override an ordinary statute. This reflects the constitutional bias toward republican legislation which holds the initiative process inferior to ordinary legislative process.35 The third mechanism Frickey recommends involves a stronger use of substantive canons such as the rule of lenity, the federalism canon and the canon against retroactive changes in the initiative context. Since, in Frickey’s view, direct legislation is inferior to the republican form of legislation, the judiciary should make stronger use of canons that are justified by republicanism and constitutional values.36

III.

Initiatives as Ordinary Statutes

Not all writers see the flaws or disadvantages of the initiative process as sufficient justifications for employing different interpretive rules. One such advocate is Judge Jack Landau.37 According to Landau there should be no special judicial treatment of initiatives, since they do not possess any unique flaws or

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shortcomings not found in ordinary legislation. Landau rejects both Schacter’s and Frickey’s critiques of the prevalent judicial indiscrimination between initiatives and ordinary statutes. As much as he agrees with their description of the problems in the initiative process, he feels these problems are present in ordinary legislation as well, even if to a lesser degree.38 The problem of ascertaining voters’ intent – Schacter’s main focus – is not any worse than that of ascertaining legislative intent in ordinary statutory interpretation. Nor is Schacter’s account of the elected legislator’s professionalism accurate, argues Landau. Quite often legislators devote too little thought to the meaning of particular, specific terms and instead focus on general terms. In ordinary legislation, too, there are common uncertainties as to the application of the general statute in concrete, unforeseen instances. And oftentimes elected legislators do not invest the required resources in order to fully assess a proposed bill; they may not even have the necessary resources. “It is a fairly well-known fact that the combination of limited resources, limited time, limited experience and a virtually unlimited supply of bills stretches the deliberative capacity of the legislature.”39 Nor is the practice of special interest legislation unique to direct legislation. The common practice of legislating bills prepared by special interest groups is hardly a secret. Schacter also overestimates, argues Landau, the supposed independence and unbiased judgment of legislators. They are often influenced by media and political campaigns and commonly base their final decision on a host of factors which are not closely related to the specifics of the proposed bill.40 As a former California legislator admits, in a quote cited by Landau, “[e]very legislator has his own system for judging how he will vote, but reading the bill usually isn’t part of the procedure, and listening to a debate on a bill’s merits certainly isn’t either.”41 If this is the case, suggests Landau, then Schacter’s proposals are inappropriate and, in any event, they should not be adopted to initiatives alone.42 Frickey’s account of republicanism and the deliberative process through which ordinary statutes are passed, claims Landau, underestimates reality where many bad laws are enacted despite the filtering process of ordinary legislation. Thus, charges regarding

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lack of deliberation should not be leveled against direct legislation alone, but against ordinary legislation as well.43 Aside from the theoretical difficulties he has with Schacter’s and Frickey’s depictions of initiatives, Landau underscores problems with their practical prescriptions as well. As noted, Schacter called for opening up the courts and for strict interpretation in cases of complex and technical initiatives, about which it is probable that the voters suffer from “informational deficit.” But the task of ascertaining when such “informational deficit” occurs, claims Landau, is too difficult for the courts. How could a court be sure that an initiative is too complex for the average voter? How could it assess the exact level of scrutiny the initiative received by the voters? How could courts even begin to estimate the level of reliance the voters had on biased media campaigns? Moreover, in practical terms what does it mean to “open up the courtroom” as Schacter suggests? Amicus curiae are granted liberally anyway, argues Landau. He also doubts that conducting a deliberative process in the courtroom, after the initiative has already been enacted, is of any value. After all, if voters were confused at the ballot, what help can they get by receiving enlightenment now in the courtroom?44 Calling for narrow construction in cases of alleged voter abuse is also questionable. Schacter calls for such an approach even in cases of clear statutory purpose. This preference for judicial will over that of the voters, as explicated in the initiative itself, demands democratic justifications of the kind Schacter never provides and is also inconsistent with Schacter’s “repeated appeal to ‘democratic legitimacy.’”45 Frickey’s prescription for a modified version of the traditional interpretive model is problematic as well, argues Landau. Frickey’s prescription relied heavily on canons of interpretation. It suggested a modified use of the avoidance canon and called for the narrow construction of initiatives in derogation of ordinary statutes and for a more rigid exercise of some substantive canons. Landau disapproves of this approach since he is critical of interpretive canons in general and is skeptical of their practicality.46 Ultimately, Landau identifies the traditional model of interpretation, that is, the usual manner in which courts interpret

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statutes in order to ascertain the legislature’s actual intent.47 De facto, this is how courts treat initiatives as well.48 Landau delineates two reasons for a judicial non-differentiation approach and embraces them both. First, courts are focused more on the effects of a statute, rather than on its origins or enactment process. Second, courts view the people’s capacity to legislate as at least as respect-deserving as the representative alternative. Accordingly, efforts to discern the voters’ intent are as justified in the initiative context as they are in the legislative context.49 In the end, Landau does not refute the flaws of direct legislation. His claim is only that these flaws are present in ordinary legislation as well and, therefore, no justifications exist for applying unique interpretive methods, at least not those proposed by Schacter and Frickey, to popularly enacted laws. Even most of those writers who are less critical of the initiative process also reject any proposal for unique statutory rules in the initiative context. One analyst claims that ordinary statutes suffer from more deficiencies than is usually assumed whereas initiatives are a product of more deliberation than usually depicted.50 Poor drafting, ambiguity, incoherence and other flaws are common to both types of legislation. Courts apply a “purposive/dynamic” interpretive approach which tries to integrate the initiative’s purposes with public values just as they do with ordinary statutes.51 Any call for other interpretive models might sacrifice the judge’s capacity to mold a more coherent law in the name of some rigid formal statutory canon. And since there are no more bad initiatives than there are bad statutes, there is no need to create a distinct interpretive regime for initiatives as such.52 Another commentator argues that drafters of initiatives are usually professionals with similar expertise as ordinary legislators.53 Moreover, since state constitutions provide for direct legislation, the question whether the people are up to the task becomes irrelevant.54 As for the claim that popular legislators are stripped of any commitment to “common good” values, thus increasing the risk of unconstrained legislation, she replies that this was exactly the purpose of direct legislation from the beginning – that is, to allow the people to voice their unadulterated will.55

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As for problems of voter intent, argues another writer, the key is not to become obsessed with actual, subjective intent, which is impossible, or extremely difficult to determine, in both direct and ordinary legislation. The focus should be on intent that is ascertainable by reference to objective circumstances.56 To this end, direct legislation offers a range of potential interpretive sources which can be utilized by the judiciary.57

2.

QUALIFIED RESPECT IN CONTEXT: JUDICIAL REVIEW

In the area of judicial review two camps can be identified as well. The majority of commentators are critical of the process and call for a “harder judicial look,” usually under an Equal Protection analysis.58 Others call for a non-differentiation approach that is based, again, on the view that initiatives are not inferior to ordinary legislation.

I.

A Harder Judicial Look

In an article from 1990, Julian Eule lays out his theory for judicial review of initiatives. Eule does not disregard the general presumption that initiatives reflect the people’s will better than ordinary legislation. Yet, drawing on previous works of political scientists, he does question the ability of direct legislation to reflect clearly popular will. First, voter participation in the United States of America is quite low. Even those who come out to the polls do not necessarily vote on propositions. Thus, those who vote cannot be said to be representative of society as a whole.59 Second, those who do go tend to be of higher social and economic class.60 Third, inherent obstacles built into the initiative process, such as the complexity and technicality of some propositions, prevent certain groups from real political participation.61 Fourth, assessing majority will based on initiatives is problematic due to various paradoxes regarding voting patterns which public choice critiques elucidate.62 Ultimately, despite these reservations, Eule admits that these criticisms are equally valid in the representative context. In fact, he acknowledges, if the primary goal is to assess the majority

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will, it seems ordinary legislation has a “distinct disadvantage” in comparison to direct legislation.63 Eule’s main argument then is that American democracy is simply not about majority will. In fact, the Constitution was premised on a basic distrust of majoritarianism. Thus, the Constitution has attempted to install tools for filtering pure majority will. Among such devices is the built-in requirement of achieving political agreements through deliberation and political tradeoffs, the division of power among several institutions and also the entrenchment of several fundamental rights. These filters and devices are absent in the initiative process, leaving the court system as the only check on the power of the majority. If anything, courts should not loosen their responsibility but rather take a more thorough look at initiatives. Thus, courts should be less restrained in reviewing statutes enacted by the people.64 Despite Eule’s acknowledgment that devising a “harder judicial look” demands greater fleshing out, he does make some practical suggestions. So, for example, when facing initiatives affecting minority rights and Equal Protection suspect classes, courts should be very leery. Even if we presume that sworn legislators are committed to constitutional values and the preservation of fundamental rights and liberties, it is doubtful we can make similar assumptions about the people as legislators. Thus, Eule makes two suggestions. Under the Equal Protection doctrine, when facing statutory discriminatory effect, one must show “legislative intent to discriminate” in order to trigger strict scrutiny (or intermediate review). Such intent can be demonstrated by showing either facial discrimination, discriminatory application or discriminatory motive. However, Eule suggests that when facing an initiative that has discriminatory effect, courts should relax, and perhaps even abandon, the requirement to demonstrate a “legislative intent to discriminate.”65 In addition, he suggests that courts be less deferential when applying the rationality review test to initiatives and that they should demand a more convincing “ends-means” relation before upholding an initiative.66 Another staunch critic of direct legislation, is Judge Hans Linde of the Supreme Court of Oregon, who advocates for reassessment of the initiative process as a whole.67 His main

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argument is that initiatives, as such, are anti-republican, and that republicanism lies at the core of the Constitution.68 He points out that the Supreme Court in Pacific States Telephone & Telegraph Company v. Oregon69 (“Pacific States”) did not touch upon the substantive question of the Guarantee Clause and direct legislation.70 It terminated its inquiry prematurely by concluding that it had no jurisdiction over the Constitutional issue. Accordingly, there is no federal precedent affirming or denying the constitutionality of direct democracy.71 Linde points out that “[t]he Court did not hold (and, having denied its own jurisdiction, it could not hold) that the Oregon court should have dismissed the company’s claim rather than decide it. Thus, even if federal courts specifically chose not to decide whether or not state adoption of direct legislation is in conflict with the Guarantee Clause, it does not entail lack of state courts jurisdiction over this issue.72 Linde claims that there are two justifications for granting state courts jurisdiction over the issue in light of the lack of such federal authority. First, the Supremacy Clause commands state courts to check for state compliance with the Constitution.73 In addition, he argues that the Guarantee Clause binds state judges too.74 Unlike federal courts, state courts are not stepping outside their jurisdiction when deciding state conformity to a republican form of government. The task of discerning proper standards for deciding on republicanism and direct legislation is both worthwhile and achievable. In Kadderly v. City of Oregon,75 the court’s main argument was that direct legislation is not intended to substitute ordinary legislation but rather to supplement it. Accordingly, added the court, since initiative laws are still under constitutional review, and since they are subject to legislative amendment, they do not pose any threat to the republican form of government.76 In its rationale, notes Linde, the Kadderly court laid out the guiding principles for determining when direct legislation turns into a threat to republican form of government and, thus, Kadderly can serve as the foundation of a theory for constraining direct legislation on republican grounds. The Kadderly opinion deems direct legislation constitutional as long as it does not attempt to replace ordinary legislation or intervene with the ordinary legislative process.77 However, there are instances where initiatives might go too far and

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interfere with the republicanism that states are obligated to preserve. Linde finds several possible constraints on direct legislation that can be grounded in Kadderly.78 First, initiative laws may not enjoy any special protection from subsequent legislative amendments or repeals initiated by elected representatives. Putting one group of statutes beyond the reach of elected legislators is counter-republican.79 So, for example, an initiative regulating tax or private relations should be blocked since it impedes the legislature’s amending power.80 Accordingly, Linde would probably oppose requiring something more than simple legislative majority to repeal an initiative law. Second, initiatives that attempt to limit the state’s ability to function as a state should also be regarded as non-republican.81 Linde offers as examples initiatives that attempt to cut the judiciary’s budget by ninety percent or invest the governor or legislature with the power to terminate judges’ terms at will. Initiatives that place heavy burdens on state budgets are also a suspect class. Of course, any statute or initiative entails some budgetary adjustment and to a certain degree prevents the state from allocating funds to other issues on its agenda, but there is a point where the monetary implications of an initiative are so severe that the initiative as a whole becomes counter-republican. Third, the concept of republicanism entails that regulation of certain areas by initiatives should be deemed non-republican even if the legislature itself, had it so desired, would have not been banned from regulating them.82 One of the reasons for instituting a republican form of government and republican institutions was to prevent lawmaking based on momentary passions and narrow interests. Thus, initiatives that harm minorities, for example, should be banned regardless of whether the legislature itself was allowed to enact them.83 Initiatives, being non-republican in essence, should be excluded from areas that republicanism entails should be regulated by representatives only.84 Lawrence Sager argues against initiatives on due process grounds. Accordingly, individuals have a right to a deliberative decision-making process.85 Since the initiative process offers fewer of the classic methods of face-to-face congressional deliberation

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that ordinary legislation offers, some judicial skepticism is in place when substantive constitutional values are at stake and where “substantive review of the enactment by the judiciary is largely unavailable and hence cannot secure these constitutional values.”86 Derrick Bell attacks the initiative institution by claiming that it is inherently biased against racial minorities. Bell argues that the increased role of the media in direct legislation as well as the structural difference between ordinary statutes and direct legislation and the undermining of republicanism inherent to direct legislation lead to an oversimplification of issues and contributes to white superiority.87 Another call is for application of a “substantial relationship to a legitimate, articulated state purpose” test for laws enacted by initiatives in order to protect minorities from a majoritarian abuse of direct democracy.88 Eule, Sager, Linde and Bell are not alone in their analysis of the inherent dangers of direct legislation, as well as in their call for heightened judicial review as an appropriate panacea.89 What these commentators share is the conception of representation as being inherently desirable in American democracy and the insistence that the nature of direct legislation demands that courts serve as a balancing check and take a harder judicial stance when facing initiatives. However, this call for harsher scrutiny does not apply across the board to all initiatives. Their criticism of direct legislation is based on a desire to protect certain values; thus only initiatives that attempt to circumvent these values are a suspect class. Only when the values championed by these writers are threatened should the doctrinal prescriptions they offer be called into action.

II.

Initiatives as Ordinary Statutes

Numerous writers reject the claim that initiatives deserve a harder judicial look. However, this refutation of closer judicial scrutiny is supplanted by a call to treat initiatives like ordinary statutes.90 Mark Tushnet, for example, claims that Eule’s analysis and conclusions are unjustified. Tushnet considers two paradigmatic justifications for different judicial review standards for initiatives and rejects them both. First, different procedural mechanisms may

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187

justify distinct judicial review standards for initiatives. Accordingly, when facing identical statutes, courts would be justified in treating them differently only if their enactment processes were different. A second argument for disparate judicial review is based on a judicial role in channeling legislative efforts to achieve a better legislative process. Here, courts would be justified in intensifying their judicial examination if it is agreed that one legislative process is preferable to the other and if a selective harder judicial scrutiny would lead legislators to favor the more desirable legislative process. Tushnet contends that both arguments are unpersuasive in the initiative context. First, procedural differences cannot be sufficient to justify different standards of judicial review. The Constitution is primarily a substantive document interested with the contents of legislation. Thus, in reviewing a statute, courts should be primarily focused on the constitutionality of its content not on its enactment process. The question of how that statute was enacted is irrelevant to the content of the legislation. It would make no constitutional sense, argues Tushnet, to invalidate a statute because it was passed by the people while upholding another simply because it was enacted by elected legislature.91 Favoring one form of legislation over another by creating different standards of judicial review is also unsound. Ultimately, the initiative process is not inferior to ordinary legislative process. Tushnet rejects the claim that initiatives enjoy less deliberation than ordinary legislation.92 This claim against initiatives is even less persuasive in cases where initiatives are constitutionally sensitive and attract enormous public attention. While it is true that initiative campaigns can become simplistic, “[t]he simplifications and distortions associated with direct legislation campaigns will surely be deployed in legislative election and re-election campaigns. Anticipating this, a legislature would be unwilling to take a fully deliberated position on the matter.”93 Tushnet even questions the value of deliberation as such. If deliberation is about disregard for passions and impulses and “analytic detachment from the roughand-tumble of daily life” then its merits are questionable. Deliberation, in this sense, might overlook “important information not readily reducible to the forms of reasoned argument.”94

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Appendix

Moreover, suggesting a harder judicial look at initiatives of specific subject matter paves the way for disguised judicial policy-making. Tushnet appears to have doubts that heightened deliberation makes indirect legislation the preferred legislative method.95 However, Tushnet rejects differential standards that favor initiatives too.96 One of the potential arguments for harder judicial look at ordinary legislation is based on the assumption that legislators are reluctant to enact statutes that will diminish their odds of being reelected. Thus, initiatives which attempt to restrain the legislative tendency for self-entrenchment should be reviewed with more relaxed standards.97 Tushnet finds this argument unfeasible. In a sense, he claims, all statutes can be said to be selfentrenching by the mere fact that they attempt to please the voters. And satisfying one’s constituency is necessary for re-election.98 While it is true that some statutes can be more overtly selfentrenching, they constitute only a minority of statutes. Moreover, singling out such statutes can be quite controversial since “[n]early every law that arguably entrenches legislators indirectly is supported by reasonable policy arguments as well. [and] nearly every law results from some sort of indirect self-entrenchment.”99 As a result, the task of distinguishing between self-entrenching statutes and ordinary statutes will become a matter of value choice and a question of dissatisfaction with the specific content of a given law.100 Ultimately, initiatives and ordinary statues should be treated alike and when an initiative’s content is constitutionally problematic it should be addressed with ordinary constitutional doctrines. Lynn Baker argues that calls for a harder judicial look on initiatives are based on several false assumptions.101 She argues that public choice theories demonstrate that initiatives are not any more discriminatory toward minorities than ordinary statutes. None of the legislative mechanisms of the initiative process makes it inherently more likely to promote legislation that disadvantages minorities.

Appendix

3.

189

IN DEFENSE OF QUALIFIED RESPECT: SOME ASSESSMENTS

Not surprisingly, legal prescriptions regarding initiatives usually reflect a broader view of the initiative institution. Scholars who identify material flaws in the initiative institution call for legal doctrines that address these imperfections. Alternatively, scholars who are less critical of the initiative process tend to equate initiative statutes with ordinary statutes, and thus reject any call for different legal treatment. What is missing is an attempt to address initiatives for what they are. They are a unique legislative tool which offers the sovereign means for reflecting intense political preferences. As such they deserve to be treated with respect. At the same time the differences between the initiative and legislative procedures should not be brushed aside. The initiative process is more rigid and leaves almost no room for amendment and refinement. There is also something to be said of the competence and resources of citizen voters vis-à-vis professional legislators. Any attempt to develop a legal model for the treatment of initiatives must build upon the need for respect for the people on the one hand and on procedural shortcomings on the other. This is why I find much of the existent writings on the issue to be unsatisfying. Most writers who call for harder judicial look base their position on specific statutory content. Yet, these calls face serious difficulties. First, the assertion that initiative statutes are inherently biased has yet to be proven.102 Inarguably, some of the most important legislative reforms were propelled by initiatives.103 I also find attempts to demonstrate how procedures of the initiative process are inherently likely to promote discriminatory laws to be insufficient. Moreover, initiatives are better vehicles for voicing the people’s political preferences.104 As such, there is no reason to assume initiatives are likely to be discriminatory or racist unless one thinks that most Americans are prejudiced or racists. In fact, as one researcher demonstrated, the American public tends to reject radical and extreme propositions.105 True, the American public is divided on many sensitive matters. Same-sex marriage, affirmative action and abortion rights are only some of the issues that are at the heart of American contemporary political discourse. These

190

Appendix

topics also affect minority groups and individuals. Yet, the public divide on these issues is precisely a reflection of different conceptions of what constitutes the good. Most participants in these debates share mutual respect for ideals of human dignity and liberty and the disagreements are as to the interpretation of these ideals and their practical applications. The rules of the political game should be, to the greatest extent possible, neutral. Thus, attempts to define distinct legal rules for initiatives that are motivated, implicitly or explicitly, by a desire to block specific enactments are, in my view, simply unacceptable.106 Furthermore, if initiatives can be proven to be particularly biased against minorities, or if they are likely to produce statutes that are unconstitutional, there is no need to develop special judicial tools to address them: existing mechanisms of constitutional law should be sufficient. If the initiative process tended to produce unconstitutional statutes then all we could expect are more instances of invocation of constitutional doctrines in the initiative context.107 I see no need to design new apparatuses for affecting substantive issues; constitutional law exists precisely for that reason. If too many defective initiatives are upheld then we have a problem with constitutional doctrines and not with initiatives as such.108 It is hard to know exactly what a stricter review of initiatives may mean. To the extent they are unconstitutional they, of course, should be invalidated. To the extent they are not, then the fact that they were enacted by the people cannot serve as a reasonable argument against them. Only if some procedural flaw within the initiative process is identified is there room for designing additional or unique legal doctrines. But then these doctrines should apply regardless of the actual content of the initiative. However, prescribing across the board judicial rules for initiatives is exactly what most writers refuse to do. Resorting to the concept of republicanism as a strategy in the charge against initiatives is also ultimately futile.109 As Richard Fallon pointed out, the notion of republicanism as a normative concept is very unclear.110 William Wiecek had also pointed this out:

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191

[T]he word “republican” may well not have had any single and universal denotation to the men who inserted it into the guarantee clause. It may, in fact, have had no meaning at all. John Adams complained late in life that “the word republic as it is used, may signify anything, everything, or nothing.” He insisted that he “never understood” what the guarantee of republican government meant; “and I believe no man ever did or ever will.”111 Ironically, some versions of republicanism underscoring political participation and self-rule actually make the case in favor of direct legislation.112 Republicanism, as such, does not preclude an occasional resort to direct legislation.113 Therefore, in the absence of clear constitutional reference, the task of deciding the constitutionality of initiatives must be grounded in our conceptions and convictions about democracy and its legitimacy. As I argued in Chapter 3 initiatives cannot be reasonably said to be undemocratic. In fact, they appear to advance and foster some of the most fundamental ideals and values of democracy. At the minimum, they do so just like other political institutions such as free elections and representative government, for which we have no constitutional doubts or questions of legitimacy. In the end, I think calls against initiatives based on their non-republican or nondemocratic character are implausible. Another line of justification for distinct legal rules is grounded in the inapplicability of some of the presumptions regarding the legislature’s character.114 Yet, what these writers fail to see is that many of these presumptions are applied in the context of ordinary statues regardless of whether they really reflect the actual legislature. Most of the presumptions made as to the character of the legislature and its aspirations are not descriptive. When Hart and Sacks claimed that the legislature consists of “reasonable persons pursuing reasonable purposes reasonably”115 it is fair to assume that they were not so much disturbed by the (in)accuracy of their claim but more on its ramifications on the interpretive process.116 Assuming legislation is carried out by reasonable people for reasonable purposes is, unfortunately, merely a noble aspiration. The thrust of this presumption is to allow judges to treat statutes reasonably and

192

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to attribute rational purpose to them. Thus, the assumption is crucial not for what it describes but rather for what it legitimates. Making such assumptions allows courts to achieve desired goals for their own sake, such as, promoting constitutional values through statutory interpretation. Their significance lies not in their descriptive accuracy but rather in their legitimating force for achieving other desired goals such as coherence and rationality. Thus, making these assumptions regarding the mass electorate is not harmful at all. First, it is not clear why one should assume that legislators are more rational or more interested in constitutional values than ordinary people. Counter arguments can easily be made. Second, if these presumptions are not entirely descriptive then presuming them in the initiative context is as valid as it is in the ordinary statutory context. In fact, if these presumptions contribute to achieving other goals, and if the electorate is less likely to promote these goals on its own, then the resort to these assumptions in the initiative context is even more necessary and more justified. If one assumes that the people tend to legislate irrationally, or that their legislation is not purposive, and if achieving goals of coherence and constitutionalism is justified, then it would make sense to apply interpretive rules precisely on these interpretive presumptions. Thus, I argue, suggestions for rejecting interpretive canons that refer to other statutes, or canons promoting coherence and rationality in the initiative context, are unjustified. I also find unpersuasive calls for modified legal treatment which are based on skepticism as to initiatives’ ability to reflect popular will.117 True, initiatives cannot mirror the people’s will with complete exactitude. It is also true that some citizens will be more likely to be engaged in the popular political processes than others. Yet, similar deconstruction can be, and has been, aimed at ordinary legislation. In the end, on the institutional level, it is hard to see why legislation enacted directly by the people is any less representational than ordinary legislation voted by proxy. It is also difficult to understand why the fact that an initiative’s sponsors are not elected officials should justify modifying the rules of interpretation.118 The thrust of the initiative institution, and its allure, rests on the fact that the people actually vote and endorse

Appendix

193

the proposition, regardless of the identity of the actual drafters of the initiative. Even if the drafters are not elected officials, they certainly need to estimate and approximate popular will in order to gain public support. In fact, even with ordinary statutes, drafters are oftentimes unelected lobbyists who present their proposal to legislators. Ultimately, claims regarding the nonrepresentational character of initiatives and the assumed role of unelected individuals in the process, cannot serve, in my opinion, as a sufficient justification for modified rules of interpretation. On the other hand, calls for a non-differentiation approach are also unsatisfactory. After all, there is something singular in the initiative process that demands to be addressed. At times it seems that, since most calls for distinct legal treatment for initiative are made by critics of the institution, proponents of direct legislation are overly sensitive to any attempt to modify, harm or block the initiative process. Yet, that should not prevent proponents of the initiative institution from acknowledging some of the obvious shortcomings of the process. Thus, simply arguing for leaving initiatives unhampered will fail to do justice to the institution as a whole. A non-differentiation approach seems unable to truly respect the people as legislators and treating initiatives as ordinary statutes is simply to overlook the uniqueness of the institution. In contrast, the theory of Qualified Respect attempts to reflect an objective view of initiatives. It strives to delineate a fair account of the process and to propose legal doctrines accordingly. Such a legal theory is capable of addressing both the strengths and weaknesses of the initiative. It grants them respect as a vehicle for carrying out the sovereign’s political preferences and at the same time seeks to address inherent procedural flaws, as well as ensuring that this political means is utilized in a manner that best fits its design. And while I don’t argue that Qualified Respect is the only possible way to conceive and address the initiative, I believe it is a very respectable candidate.


ENDNOTES

Introduction Peter Schrag, The Fourth Branch of Government? You Bet. 41 SANTA CLARA L. REV. 937 (2000-2001). 1

2 The notion of the people’s will in this context is not free of quandaries. These will be discussed in Chapter 3.

See, generally, Elizabeth Garrett, Hybrid Democracy 73 GEO. WASH. L. REV. 1096 (2004-2005). 3

See M. DANE WATERS, INITIATIVES AND REFERENDUMS ALMANAC 11 (2003) [hereinafter ALMANAC]; REFERENDUMS – A COMPARATIVE STUDY OF PRACTICE AND THEORY 67 (David Butler & Austin Ranney eds., 1978). 4

5

See ALMANAC, supra note 4, at 11; Butler, supra note 4, at 67.

See JOSEPH F. ZIMMERMAN, THE RECALL – TRIBUNAL OF THE PEOPLE 1 (1997); THOMAS E. CRONIN, DIRECT DEMOCRACY – THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 125 (1989). 6

See P. L. DUBOIS & F. FEENEY, LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS 2-14 (1998); DAVID B. MAGLEBY, DIRECT 7

195

Endnotes

196

LEGISLATION: VOTING ON BALLOT PROPOSITIONS STATES 35-6 (1984); Almanac, supra note 4, at 11-13. 8

IN THE

UNITED

ALMANAC, supra note 4, at 13.

THE BATTLE OVER CITIZEN LAWMAKING 276 (M. Dane Waters ed., 2001). These jurisdictions are Wyoming (1968), Illinois (1970), Washington DC (1977), Mississippi (1992) and Florida (1968), which allows only for constitutional amendments via initiatives.

9

10

RICHARD ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS 35 (2002).

IN AMERICA

MAGLEBY, supra note 7, at 5-7; William E. Adams, Is It Animus or a Difference of Opinion? The Problems Caused by the Invidious Intent of Anti-Gay Ballot Measures, 34 WILLAMETTE L. REV. 449 (1998); DAVID B. MAGLEBY, Let the Voters Decide? An Assessment of the Initiative and Referendum Process, 66 U. COLO. L. REV. 13, 26-27 (1995); WILLIAM N. ESKRIDGE, JR. et al., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 502 (3rd ed., St. Paul, 2001). 11

In the first decade of the 21st century, through 2006, a total of 301 initiatives were submitted to ballot, putting direct legislation on track to, at least, match the 1990’s all-time record high of 379. See the November 2006 “Initiative Use” report issued by the Initiative and Referendum Institute available at: www.iandrinstitute.org/IRI%20Initiativeee%20Use%20(2006-11).pdf (accessed on 7.5.2007).

12

E.g.: FREDERICK J. BOEHMKE, THE INDIRECT EFFECT OF DIRECT LEGISLATION: HOW INSTITUTIONS SHAPE INTEREST GROUP SYSTEMS (2005); STEPHEN P. NICHOLSON, VOTING THE AGENDA: CANDIDATES, ELECTIONS, AND BALLOT PROPOSITIONS (2005); JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW – THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY (2004); DANIEL A. SMITH & CAROLINE J. 13

Endnotes

197

TOLBERT, EDUCATED BY INITIATIVE: THE EFFECTS OF DIRECT DEMOCRACY ON CITIZENS AND POLITICAL ORGANIZATIONS IN THE AMERICAN STATES (2004); ETHAN J. LEIB, DELIBERATIVE DEMOCRACY IN AMERICA (2004); RICHARD BRAUNSTEIN, PRACTICING DEMOCRACY: INITIATIVE AND REFERENDUM VOTING AT THE END OF THE 20TH CENTURY (2004); STEVEN L. PIOTT, GIVING VOTERS A VOICE: THE ORIGINS OF THE INITIATIVE AND REFERENDUM IN AMERICA (2003); RICHARD ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA (2002); DAVID S. BRODER, DEMOCRACY DERAILED: INITIATIVE CAMPAIGNS AND THE POWER OF MONEY (2001); ELIZABETH R. GERBER, STEALING THE INITIATIVE: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY (2001); LARRY J. SABATO, DANGEROUS DEMOCRACY? THE BATTLE OVER BALLOT INITIATIVES IN AMERICA (2001); M. DANE WATERS, THE BATTLE OVER CITIZEN LAWMAKING (2001); DONALD R. WOLFENSBERGER, CONGRESS AND THE PEOPLE: DELIBERATIVE DEMOCRACY ON TRIAL (2000); ELIZABETH R. GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT LEGISLATION (1999).

Chapter 1 The survey in this chapter is based on several works and sources. Primarily, THE INITIATIVE, REFERENDUM AND RECALL 92-125 (William Bennett Munro ed., 1912); DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES 21-24 (1984); THOMAS E. CRONIN, DIRECT DEMOCRACY – THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 38-59 (1989); PHILIP L. DUBOIS & FLOYD FEENEY, LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS 7-14 (1998); RICHARD J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA 26-34 (2002); THOMAS GOEBEL, A GOVERNMENT BY THE PEOPLE – DIRECT DEMOCRACY IN AMERICA, 1890-1940, 25-47 (2002); STEVEN L. PIOTT, GIVING VOTERS A VOICE: THE ORIGINS OF THE INITIATIVE AND REFERENDUM IN AMERICA 1-15 (2003); Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in 1

198

Endnotes

which Majorities Vote on Minorities’ Democratic Citizenship, 60 OHIO ST. L.J. 399, 411-14 (1999); Kenneth P. Miller, Constraining Populism: The Real Challenges of Initiative Reform, 41 SANTA CLARA L. REV. 1037, 1039-42 (2000-2001). RICHARD BRAUNSTEIN, PRACTICING DEMOCRACY: INITIATIVE AND REFERENDUM VOTING AT THE END OF THE 20TH CENTURY 25 (1999) (unpublished Ph.D. dissertation, University of Colorado) (on file with Harvard Law School Library). 2

3

See BRAUNSTEIN, supra note 2, at 25; PIOTT, supra note 1, at 1.

4

See BRAUNSTEIN, supra note 2, at 26; PIOTT, supra note 1, at 1-3.

5

See CRONIN, supra note 1, at 54-55, MAGLEBY, supra note 1, at 24.

6

J.W. SULLIVAN, DIRECT LEGISLATION BY THE CITIZENSHIP THROUGH 5 (3rd ed. 1896).

THE INITIATIVE AND REFERENDUM 7

See id.

8

See id., at 6.

9

See id., at 96 on.

See DAVID D. SCHMIDT, CITIZEN LAWMAKERS – THE BALLOT INITIATIVE REVOLUTION 7 (1989); PIOTT, supra note 1, at 3; DUBOIS & FEENEY, supra note 1, at 10. 10

11

See SCHMIDT, supra note 10; PIOTT, supra note 1, at 8-9.

W.S. U’ren of Oregon, R. Patten of Maine, and S. Gompers of New Jersey are only a few of the names. 12

Endnotes

13

199

See PIOTT, supra note 1, at 9-11.

See BRAUNSTEIN, supra note 2, at 33; CRONIN, supra note 1, at 54; MAGLEBY, supra note 1, at 23. 14

15

See CRONIN, supra note 1, at 57-59.

See DONALD R. WOLFENSBERGER, CONGRESS AND THE PEOPLE: DELIBERATIVE DEMOCRACY ON TRIAL 56 (2000); CRONIN, supra note 1, at 51. Note, that in 1897, Nebraska became the first state to allow cities to incorporate initiatives and referendums into their charters. 16

17

See SCHMIDT, supra note 10, at 261-65; CRONIN, supra note 1, at 51.

The approved initiatives allowed for direct election of candidates for state office and allowed counties to independently ban the sell of liquors. See SCHMIDT, supra note 10, at 8. 18

19

See CRONIN, supra note 1, at 51.

See M. DANE WATERS, INITIATIVES 533 (2003) [hereinafter ALMANAC]. 20

AND

REFERENDUMS ALMANAC

21

See SCHMIDT, supra note 10, at 20; ALMANAC, supra note 20, at 533.

22

See SCHMIDT, supra note 10, at 9.

23

Id., at 533.

24

Id., at 533.

25

Id., at 533.

200

Endnotes

ALMANAC, supra note 20, at 6; See also SCHMIDT, supra note 10, at 4161; WOLFENSBERGER, Supra note 16, at 131; JOHN M. ALLSWANG, THE INITIATIVE AND REFERENDUM IN CALIFORNIA, 1898-1998, 102-207 (2000). 26

27

See Wolfensberger, Supra note 16, at 129.

28

Id., at 131.

29

Id., id.

See also Miller, supra note 1, 1049-51 (2000-2001); Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV 395, 396 (2003); Peter Schrag, The Fourth Branch of Government? You Bet. 41 SANTA CLARA L. REV. 937, 937 (20002001); Eric Lane, Men Are Not Angels: The Realpolitik of Direct Democracy and What We Can Do About It, 34 WILLAMETTE L. REV. 579, 581-84 (1998); Leroy J. Tornquist, Direct Democracy in Oregon – Some Suggestions for Change, 34 WILLAMETTE L. REV. 675, 675 (1998). However, there are some data suggesting that initiative use is actually beginning to decline. Whether this trend is significant it is yet too early to asses. See ALMANAC, supra note 20, at 8-9. 30

See Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 CHI.-KENT L. REV. 707, 753 at fn. 165 (1991). 31

See SCHMIDT, supra note 10, at 174-81, where he discusses initiative efforts in the national level; MAGLEBY, supra note 4, at 12-14.

32

See WOLFENSBERGER, supra note 16, at 4; see generally CRONIN, supra note 4, at 157-95.

33

Endnotes

201

See WOLFENSBERGER, supra note 16, at 131-35. Not many think that any of these proposals can actually be adopted, and I am not suggesting that they ought to be.

34

44 Or. 118 [hereinfater Kadderly]. There is an earlier case from the Supreme Court of Minnesota, Hopkins v. Duluth, 81 Minn. 189 (1900), that also rejects claims that direct democracy is in conflict with the Constitutional Guarantee Clause. But Hopkins v. Duluth involved popular approval of the city charter and not direct statutory legislation. 35

Hans A. Linde, State Courts and Republican Government, 41 SANTA CLARA L. REV. 951, 959 (2000-2001); In re Pfahler, 150 Cal. 71 (1906); Ex parte Wagner, 95 P. 435 (Okl. 1908); State v. Board of Commissioners, 144 P. 2441 (Kan. 1914). 36

37

223 U.S. 118 (1912) [hereinfater Pacific States].

38

State v. Pacific States Telephone & Telegraph Company, 53 Or. 162 (1909).

39

See also GOEBEL, supra note 1, 52-53.

40

Kadderly, supra note 35, 140-43.

41

Id., at 141-42.

42

Id., at 150.

JOSEPH F. ZIMMERMAN, THE REFERENDUM – THE PEOPLE DECIDE PUBLIC POLICY, 72-73 (2001); Goeble, supra note 1, 52; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L. J. 1503, 1544 (1990); Note, Constitutionality of the Referendum, 41 YALE L.J. 132 (1931). 43

202

Endnotes

Craig B. Holman & Robert Stern, Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts, 31 LOY. L.A. L. REV. 1239, 1245-46 (1998). 44

However, there are some academic voices calling for reassessment of the constitutionality of direct legislation. See, supra, Appendix A, fn. 67 and surrounding text.

45

46

See MAGLEBY, supra note 1, 3.

Chapter 2 Some of the books devoted to analysis of direct democracy from previous years are: STEPHAN P. NICHOLSON, VOTING THE AGENDA: CANDIDATES, ELECTIONS, AND BALLOT PROPOSITIONS (2005); RICHARD A. BRAUNSTEIN, INITIATIVE AND REFERENDUM VOTING: GOVERNING THROUGH DIRECT DEMOCRACY IN THE UNITED STATES (2004); DANIEL A. SMITH, EDUCATED BY INITIATIVE: THE EFFECTS OF DIRECT DEMOCRACY ON CITIZENS AND POLITICAL ORGANIZATIONS (2004); ROBERT M. ALEXANDER, ROLLING THE DICE WITH STATE INITIATIVES: INTEREST GROUP INVOLVEMENT IN BALLOT CAMPAIGNS (2002); RICHARD. J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA (2002); JOHN HASKELL, DIRECT DEMOCRACY OR REPRESENTATIVE GOVERNMENT? DISPELLING THE POPULIST MYTH (2001). 1

The presentation below is based primarily on DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES 35-77 (1984); M. DANE WATERS, INITIATIVES AND REFERENDUMS ALMANAC 11-27 (2003) [hereinafter ALMANAC]; CITIZENS AS LEGISLATORS – DIRECT DEMOCRACY IN THE UNITED STATES 27-53 (SHAUN BOWLER et al. eds., 1998) [hereinafter CITIZENS AS LEGISLATORS]. In addition, much information is available on the 2

Endnotes

203

Initiative & Referendum Institute at the University of Southern California’s website at: http://www.iandrinstitute.org. ALMANAC, supra note 2, at 12; Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 113-14 (1995-1996). The states are: Arizona, Arkansas, California, Colorado, Idaho, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Utah and Washington. Both Utah and Washington also allow indirect initiatives. 3

ALMANAC, supra note 2, at 12. The states are Alaska, Maine, Massachusetts, Michigan, Nevada, Ohio and Wyoming. 4

24 states offer the initiative process for either ordinary statutes and constitutional amendments or both, only 22 (including Washington D.C.) allow for direct legislation of ordinary statutes. ALMANAC, supra note 2, 1; see, also, P. L. DUBOIS & F. FEENEY, LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS 27-32 (1998); MAGLEBY, supra note 2, at 35-43; Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L. J. 1503, 1509 at fn. 21 (1990); Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 CHI.-KENT L. REV. 707, 708 at fn. 1 (1991). The states are: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Maine, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington and Wyoming. 5

See DUBOIS & FEENEY, id in chapter 4; ALMANAC, supra note 2, at 1129; MAGLEBY, supra note 2, at 36; CITIZENS AS LEGISLATORS, supra note 2, at 27-53. 6

7

DUBOIS & FEENEY, supra note 5, at 37-38.

8

Id.

204

9

Endnotes

Id., at 39-42.

10

Id., at 39.

11

M.G.L.A. Const. Amend. Art. 48, Init., Pt. 2, §3; DUBOIS & FEENEY, id.

See, e.g., Schmitz v. Younger 21 Cal. 3d 90, 92-93 (1978) (declaring that Attorney General’s duties are procedural). 12

13


MAGLEBY, supra note 2, at 27-45; JOSEPH F. ZIMMERMAN, THE REFERENDUM – THE PEOPLE DECIDE PUBLIC POLICY 29-34 (2001). 14

15

ALMANAC, supra note 2, 15-17; Schacter, supra note 3, at 123.

DUBOIS & FEENEY, supra note 5, at 93-112; MAGLEBY, supra note 2, at 36-44. 16

ALMANAC, supra note 2, at 20-22; DUBOIS & FEENEY, supra note 5, at 34-5, 93-5. 17

18


ALMANAC, supra note 2, at 20, 28-29; DUBOIS & FEENEY, supra note 5, at 7-14, 93; MAGLEBY, supra note 2, at 61; CITIZENS AS LEGISLATORS, supra note 2, at 28-9; ELIZABETH R. GERBER, THE POPULIST PARADOX 40-41 (1999); JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW – THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY App. 1 (2004) 19

ALMANAC, supra note 2, at 20; ZIMMERMAN, supra note 14, at 37-38; DUBOIS & FEENEY, supra note 5, at 116-17. 20

Endnotes

205

See, MAGLEBY, supra note 2, at 54; DAVID D. SCHMIDT, CITIZEN LAWMAKERS – THE BALLOT INITIATIVE REVOLUTION, 34 (1989). 21

22ALMANAC,

supra note 2, at 24.

23

Id.

24


25

Id.

26

ZIMMERMAN, supra note 14, at 45.

27

ZIMMERMAN, supra note 14, Table 2.3.

DUBOIS & FEENEY, supra note 5, at 81, 127-34; CITIZENS LEGISLATORS, supra note 2, at 41-43. 28

DUBOIS & FEENEY, supra note 5, at 81; CITIZENS supra note 2, at 38-41.

29

AS

AS

LEGISLATORS,

See CITIZENS AS LEGISLATORS, supra note 2, at 38-43; MATSUSAKA, supra note 19, App. 1. 30

31

DUBOIS & FEENEY, supra note 5, at 81; MATSUSAKA, supra note 19, App.

1. The presentations is based primarily on DAVID D. SCHMIDT, CITIZEN LAWMAKERS – THE BALLOT INITIATIVE REVOLUTION, 25-40 (1989); MAGLEBY, supra note 2, at 27-30; DUBOIS & FEENEY, supra note 5, at chapters 2, 3 and 13; ZIMMERMAN, supra note 14, at 233-43. 32

On political representation see HANNA F. PITKIN, THE CONCEPT REPRESENTATION (1967). 33

OF

206

Endnotes

See, e.g., ZIMMERMAN, supra note 14, at 233-34; Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, GEOR. L. J. 491, 510 (1997); Thomas E. Cronin, The Paradoxes and Politics of citizen Lawmaking, 34 WILLAMETTE L. REV. 733, 739 (1998). 34

35

MAGLEBY, supra note 2, at 2.

36

MAGLEBY, supra note 2, at 27-8.

THOMAS E. CRONIN, DIRECT DEMOCRACY – THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 61 (1989). See, also, THE BATTLE OVER CITIZEN LAWMAKING 97-107 (M. DANE WATERS ed., 2001). 37

Richard L. Hasen, Parties Take the Initiative (and Vice Versa), 100 COLUM. L. REV. 731, 736-37 (2000) (arguing voters base their opinion on cues from politicians). 38

39

CRONIN, supra note 37, at 10-11, 60-89.

40


DUBOIS & FEENEY, supra note 5, at 146-47, 165; CRONIN, supra note 37, at 60-89. Ironically, initiatives of this kind (e.g., for gay rights, affirmative action or legalization of marijuana) that, according to this argument, are best decided through initiatives are more controversial, receive more media coverage and attract more academic criticism. SAMUEL ISSACHAROFF et al., THE LAW OF DEMOCRACY -- LEGAL STRUCTURE OF THE POLITICAL PROCESS 1007 (2nd ed., 2002) (affirms a growing tendency to place some of the most controversial issues of the day on the ballots). 41

DUBOIS & FEENEY, supra note 5, at 113-4 and at fn. 3; SCHMIDT, supra note 32, at 34; DUBOIS & FEENEY, supra note 5, at 113-14. 42

Endnotes

207

THE INITIATIVE, REFERENDUM AND RECALL 139-63 (William Bennett Munro ed., 1912); ZIMMERMAN, supra note 14, at 234; MAGLEBY, supra note 2, at 28-29 (but compare with 159-65).

43

π44 DUBOIS & FEENEY, supra note 5, at 15-18; MAGLEBY, supra note 2, chapter 2; CRONIN, supra note 37, at 10-11; J.W. SULLIVAN, DIRECT LEGISLATION BY THE CITIZENSHIP THROUGH THE INITIATIVE AND REFERENDUM 91-2 (3rd ed. 1896); SCHMIDT, supra note 32, at 30-34. MAGLEBY, supra note 2, chapter 2; CRONIN, supra note 37, at 10-11; SCHMIDT, supra note 32, at 29; Baker, supra note 5, at 745-49. 45

See, e.g., Janet A. Flammang, Democracy: Direct, Representative and Deliberative, 41 SANTA CLARA L. REV. 1085, 1091 (2000-2001) (arguing turnout in election in California is greater due to initiatives). 46

See, e.g., comment by Prof. Dale Oesterle, at http://moritzlaw.osu.edu/electionlaw/ebook/part7/elections_direct02.ht ml#2004 (accessed on 7.5.2007); Elizabeth Garrett, Hybrid Democracy, 73 GEO. WASH. L. REV. 1096, 1097 (2004-2005). 47

ZIMMERMAN, supra note 14, at 234; CRONIN, supra note 37, at 10-11, 67-68. But compare with MAGLEBY, supra note 2, at 77-99. 48

MAGLEBY, supra note 2, at 5-7, 159-65, 184-86; SCHMIDT, supra note 32, at 30; See Hasen, supra note 38, 735-45, describing many ways in which political parties react to initiative campaigns; Elizabeth R. Gerber, Pressuring Legislatures through the Use of Initiatives: Two Forms of Indirect Influence in CITIZENS AS LEGISLATORS, supra note 2; MATSUSAKA, supra note 19, at 83-92, 173-75; Elizabeth Garrett, Hybrid Democracy 73 GEO. WASH. L. REV. 1096 (2004-2005); Elizabeth Garrett, Crypto-Initiatives in Hybrid Democracy, 78 S. Cal. L. Rev. 985 (2004-2005). 49

208

Endnotes

DUBOIS & FEENEY, supra note 5, at 20, 164-65; Zimmerman, supra note 14, at 235; BETTY ZISK, MONEY, MEDIA AND THE GRASS ROOTS: STATE BALLOT INITIATIVES AND THE ELECTORATE PROCESS 266-69 (1987); CRONIN, supra note 37, at 10-11; SCHMIDT, supra note 32, at 26-29, 37-38. 50

51


DUBOIS & FEENEY, supra note 5, at 78-81; ALMANAC, supra note 2, at 27.

52

53

DUBOIS & FEENEY, supra note 5, at 82.

54


MAGLEBY, supra note 2, 29-30, 100-21, 122-44; ZIMMERMAN, supra note 14, at 237-38; WILLIAM N. ESKRIDGE, JR., et al., LEGISLATION AND STATUTORY INTERPRETATION 29 (2000); Lynn A. Baker, Direct Democracy: Preferences, Priorities, and Plebiscites, 13 J. CONTEMP. LEGAL ISSUES 317, 31718 (2004). 55

MAGLEBY, supra note 2, at 29; DUBOIS & FEENEY, supra note 5, at 11314.

56

57


58

MAGLEBY, id., at 29-30.

MAGLEBY, supra note 2, at 29, 182-88; DUBOIS & FEENEY, supra note 5, at 19; DUBOIS & FEENEY, supra note 5, at 25, fn. 44; ESKRIDGE, supra note 55, at 30; Baker, supra note 55, at 317-18; Stefan Kapsch & Peter Steinberger, The Impact on Legislative Committees and Legislative Processes of the Use of the Initiative in the American West, 34 WILLAMETTE L. REV. 689, 69798 (1998). 59

Endnotes

209

Schacter, supra note 3, at 128-30; Michael Vitiello & Andrew J. Glendon, Article III Judges and the Initiative Process: Are Article III Judges Hopelessly Elitist? 31 LOY. L. A. L. REV. 1275, 1285-89 (1997-1998). 60

MAGLEBY, supra note 2, at 29; DUBOIS & FEENEY, supra note 5, at 12123, 127, 147. For more techniques of voters abuse and deception see MAGLEBY, at 60-61.

61

MAGLEBY, supra note 2, at 29; SCHMIDT, supra note 32, at 35-7; Vitiello & Glendon, supra note 60, id. 62

MAGLEBY, supra note 2, 100-21, 181-84; Eule, supra note 5, at 1513-22; Baker, supra note 55, at 317-18. 63

DUBOIS & FEENEY, supra note 5, at 153-55; SCHMIDT, supra note 32, at 38; compare with CRONIN, supra note 37, at 68-70. 64

See, generally, CRONIN, supra note 37, at 99-116; Vitiello & Glendon, supra note 60, at 1282-83 (arguing money plays a central role in the initiative process). 65

See discussion in MAGLEBY, supra note 2, at 145-51; DANIEL A. SMITH, Campaign Financing of Ballot Initiatives in the American States in DANGEROUS DEMOCRACY? THE BATTLE OVER BALLOT INITIATIVES IN AMERICA 71 (Larry J. Sabato et al. eds., 2001). 66

67

MAGLEBY, supra note 2, at 147.

DUBOIS & FEENEY, supra note 5, at 181-221; DAVID S. BRODER, DEMOCRACY DERAILED – INITIATIVE CAMPAIGNS AND THE POWER OF MONEY (2000) chapter 4; RICHARD J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA 77-121 (2002); CRONIN, supra note 37, at 99-116; MAGLEBY, supra note 2, at 145-65; Eskridge, supra note 55, at 28; Baker, supra note 55, at 317-18 and accompanying notes. But, see, 68

210

Endnotes

SCHMIDT, supra note 32, at 35-36 and generally ELIZABETH R. GERBER, THE POPULIST PARADOX (1999). MAGLEBY, supra note 2, at 29, 182; DUBOIS & FEENEY, supra note 5, at 19, 25 fn. 44.

69

See Dubois & Feeney, supra note 5, at 256. But compare with Todd Donovan et al., Political Consultants and the Initiative Industrial Complex in DANGEROUS DEMOCRACY? THE BATTLE OVER BALLOT INITIATIVES IN AMERICA 101 (LARRY J. SABATO et al., eds., 2001). 70

MAGLEBY, supra note 2, at 30, 184; DUBOIS & FEENEY, supra note 5, at 19.

71

72


73

DUBOIS & FEENEY, supra note 5, at 148, fn. 100.

74

CRONIN, supra note 37, at 87.

CRONIN, supra note 37, at 90-99; see, generally, MATSUSAKA, supra note 19.

75

76

CRONIN, supra note 37, at 60-89, 228-32.

77

CRONIN, id., at 90-99, 229.

CRONIN, id., at 199-201; ZIMMERMAN, supra note 14, at 248; MATSUSAKA, supra note 19, at 73-79; Clayton P. Gillette, Is Direct Democracy Anti-Democratic? 34 WILLAMETTE L. REV. 609, 625 (1998). But see MAGLEBY, supra note 2, at 190-91 and SCHMIDT, supra note 32, at 37. 78

See, e.g., Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 WASH. L. REV. 1 (1978); William E. Adams, Jr., Pre-Election

79

Endnotes

211

Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 OHIO ST. L.J. 583 (1994); Brewster C. Denny, Initiatives – Enemy of the Republic, 24 SEATTLE U. L. REV. 1025 (2001) (arguing that initiatives make for bad budgetary laws). Discussion of these claims is available in Appendix A, section 2.I. See, e.g., Eule, supra note 5, at 1522-30; ZIMMERMAN, supra note 14, at 239. 80

81

See, e.g., Eule, supra note 5, at 1536-38.

MAGLEBY, supra note 2, at 30; Bell, supra note 79; Adams, supra note 79; Hans A. Linde, When Initiative Lawmaking is not ‘Republican government’: The Campaign Against Homosexuality, 72 ORE. L. REV. 19 (1993). 82

Chapter 3 DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES 190-1 (1984); WILLIAM N. ESKRIDGE, JR., ET AL., LEGISLATION AND STATUTORY INTERPRETATION 32 (2000); JOHN M. ALLSWANG, THE INITIATIVE AND REFERENDUM IN CALIFORNIA, 1898-1998 228 (2000); J. F. ZIMMERMAN, THE REFERENDUM – THE PEOPLE DECIDE PUBLIC POLICY 248 (2001); AKHIL REED AMAR & ALAN HIRSCH, FOR THE PEOPLE 38 (1998). Some conclude that there is reason to believe that voters tend to approve liberal economic initiatives but conservative social initiatives. See REFERENDUMS – A COMPARATIVE STUDY OF PRACTICE AND THEORY 83-5 (David Butler & Austin Ranney eds., 1978) [hereinafter REFERENDUMS]. 1

2

See also AMAR & HIRSCH, supra note 1, at 37-8.

If in fact they do, there are tools to address that. See discussion in Appendix A, section 3, fn. 108 and accompanying text. 3

212

Endnotes

Here, I follow Amar and Hirsch. See AMAR & HIRSCH, supra note 1, at 37. 4

To name a few: CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY (1970); BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); JOHN RAWLS, A THEORY OF JUSTICE (1971); JOHN RAWLS, POLITICAL LIBERALISM (1993); BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984); DAVID HELD, MODELS OF DEMOCRACY (1987); IRIS M. YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990); JAMES S. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM (1991); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996); JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS (1996); PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (1997); ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (1989); ROBERT A. DAHL, ON DEMOCRACY (1998); AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? (2004). 5

See, also, WILLIAM N. NELSON, ON JUSTIFYING DEMOCRACY (1980); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 26-39 (1996) [hereinafter DISAGREEMENT]. 6

7

NELSON, supra note 6, at 5-7.

NELSON, supra note 6, at 17-33; Gutmann & Thompson, supra note 6, at 27-33. 8

NELSON, supra note 6, at 17-33. See, also, ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 83-89, 106-18 (1989) [hereinafter CRITICS] (arguing that democratic institutions, more than non-democratic institutions, are generally in line with equality); ROBERT A. DAHL, ON DEMOCRACY, 48-50, 56-7 (1998) [hereinafter DEMOCRACY]. 9

10

See NELSON, supra note 6, at 17-33.

Endnotes

213

Lynn A. Baker, Direct Democracy: Preferences, Priorities, and Plebiscites, 13 J. CONTEMP. LEGAL ISSUES 317, 320 (2004). 11

See, also, Clayton P. Gillette, Is Direct Democracy Anti-Democratic? 34 WILLAMETTE L. REV. 609, 620-35 (1998); John Gastil et al., There’s More Than One Way to Legislate: An Integration of Representative, Direct, and Deliberative Approaches to Democratic Governance, 72 U. COLO. L. REV. 1005, 1014-15 (2001) (arguing direct legislation does not fare worse on political equality than ordinary lawmaking). 12

See RICHARD J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA 59 (2002) claiming that the monetary contribution necessary to an initiative campaign can be one measure of support and the level of popular interest. 13

NELSON, supra note 6, at 38-39, 42-45; see, also, DAHL, CRITICS, supra note 9, at 106-17; DAHL, DEMOCRACY, supra note 9, at 48-50, 56-7; GUTMANN & THOMPSON, DISAGREEMENT, supra note 6; BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE, 163-212 (1984); JAMES S. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM 35-41 (1991); Stefan Kapsch & Peter Steinberger, The Impact on Legislative Committees and Legislative Processes of the Use of the Initiative in the American West, 34 WILLAMETTE L. REV. 689, 692-97 (1998). 14

15


See, also AMAR & HIRSCH, supra note 1, at 40-41; Kapsch & Steinberger, supra note 14, at 701 (making this claim with some reservation). 16

17

Baker, supra note 14, at 320.

Baker, supra note 14, at 320 (describing the “equal participation” deficiencies in representative democratic process); Gastil, supra note 14, at 18

214

Endnotes

1011-14 (arguing direct legislation better enhances these features of democracy). NELSON, supra note 6, at 53-54. The word democracy is from the Greek, demokratos, “rule by the people,” and its contemporary dictionary definition is “government by the people, exercised either directly or through elected representatives.” The American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. (26 Jul. 2007, http://dictionary.reference.com/browse/democracy). 19

NELSON, supra note 6, at 62-65. See, also, DAHL, CRITICS, supra note 9, at 89-91; DAHL, DEMOCRACY, supra note 9, 52-4. 20

Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2041 (2002). 21

NELSON, supra note 6, at 54. See, also, Thomas E. Cronin, The Paradoxes and Politics of Citizen Lawmaking, 34 WILLAMETTE L. REV. 733, 739 (1998). 22

Magleby, supra note 1, at 20-22; see, generally, DAVID S. BRODER, DEMOCRACY DERAILED – INITIATIVE CAMPAIGNS AND THE POWER OF MONEY (2000), chapter 1; THOMAS E. CRONIN, DIRECT DEMOCRACY – THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 56-7 (1989). 23

See discussion of the problem of collective intent, infra, Chapter 4, section 1.II, footnotes 41-46, and accompanying text.

24

See, e.g., BRODER, supra note 23; Elizabeth Garrett, Who Directs Direct Democracy, 4 U. CHI. L. S. ROUNDTABLE 17, 8-19 (1997); Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV 395, 412-34 (2003); Sherman Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998-1999). 25

Endnotes

215

Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 SO. CAL. L. REV. 845 (1981-1982).

26

27

Id., at 864-67.

28

See, also, discussion in Chapter 4, fn. 77-82 and accompanying text

29

See discussion in Chapter 2.

See, also, Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1144 (1986) (suggesting that, in contrast with representative decision-making, “there is good reason to believe [referendum] reflects the majority’s preferences”); Cathy R. Silak, The People Act, The Courts React: A Proposed Model for Interpreting Initiatives in Idaho, 33 IDAHO L. REV. 1, 33-34 (1996-1997); Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L. J. 1503, 1514 (1990); Baker, supra note 14, at 334-39. 30

The claim that initiatives better reflect the people’s will is strengthened if the single-subject rule is strongly applied. The theory of initiatives I present suggests that this should be the case. See infra, Chapter 5, section 2.II. 31

32

NELSON, supra note 6, at 73.

33


See Catherine A. Rogers & David L. Faigman, “And to the Republic for Which It Stands”: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L. Q. 1057, 1062-64 (1996) (arguing direct legislation lacks ability to deliberate and compromise and is thus unconstitutional). 34

See Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 74-75 (2000); David Schkade, Cass R. Sunstein & Daniel 35

216

Endnotes

Kahneman, Deliberating About Dollars: The Severity Shift, 100 COLUM. L. REV. 1139, 1139 (2000). 36

Elhauge, supra note 21, at 2047-48.

See, also, Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 CHI.-KENT L. REV. 707 (1991).

37

38

See, e.g., GUTMANN & THOMPSON, supra note 6, at 33-39.

39


40


41


42


See also AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996), particularly chapters 3 and 4. 43

44


45

See, generally, NELSON, supra note 6, at 131-56.

46


47 See, e.g., Eule, supra note 30, at 1551-52, fn. 214 (arguing that it is hard to evaluate whether initiatives, as such, tend to tyrannize minorities more than ordinary statutes); Craig B. Holman & Robert Stern, Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts, 31 LOY. L.A. L. REV. 1239, 1247-49 (1998) (arguing that initiatives are not any more tyrannical or any less deliberative than ordinary statutes); Robin Charlow, Judicial Review, Equal Protection and The Problem With Plebiscites, 79 CORNELL

Endnotes

217

L. REV. 527, 626 (1994); James M. Fischer, Plebiscites, the Guaranty Clause, and the Role of the Judiciary, 41 SANTA CLARA L. REV. 973, 984-85 (2001); Baker, supra note 37, at 709-10 (arguing initiatives are not any more likely to produce laws that disadvantage racial minorities). Gastil, supra note 14, at 1008-11 (arguing that direct legislation does not inherently harm right and liberties more than ordinary lawmaking). 48

49

See, generally, RICHARD D. PARKER, HERE, THE PEOPLE RULE (1994).

See, Charlow, supra note 47, at 629 (1994) (arguing the general public is quite capable of defeating policies that are contrary to the public good). 50

In any event, my theory will address that. See discussion of the singlesubject rule in Chapter 5, section 2.II.

51

See Jack Citrin, Who’s the Boss? Direct Democracy and Popular Control of Government in BROKEN CONTRACT? CHANGING RELATIONSHIPS BETWEEN AMERICANS AND THEIR GOVERNMENT (Stephan C. Craig. ed. 1996), quoted in DANIEL H. LOWENSTEIN & RICHARD L. HASEN, ELECTION LAW: CASES & MATERIALS 357-59 (2nd ed., 2001). 52

M. DANE WATERS, INITIATIVES (2003) [hereinafter ALMANAC]. 53

AND

REFERENDUMS ALMANAC 27

PETER L. DUBOIS & FLOYD FEENEY, LAWMAKING ISSUES, OPTIONS, AND COMPARISONS 78-81 (1998) 54

55

Id. See, e.g., Washington Const. art. 2, § 1(c).

56

Id. See, e.g., Arkansas Const., Amendment 7.

57

DUBOIS & FEENEY, supra note 54, at 81-82.

BY INITIATIVE:

218

58

Id., 81.

59

Id., 81.

Endnotes

See Zimmerman, supra note 1, at 234, claiming that original proponents of direct democracy also perceived it to be a device to be employed only occasionally. 60

David Schmidt points out that it is less than 1 percent. See DAVID D. SCHMIDT, CITIZEN LAWMAKERS – THE BALLOT INITIATIVE REVOLUTION 38-9 (1989). 61

62

Baker, supra note 11, at 324.

Only about 40 percent of initiatives voted on the ballot are actually approved. See, REFERENDUMS, supra note 1, at 77; ALMANAC, supra note 2, at 533. If we include propositions that did not qualify for the ballot, then the passage rate declines even further. 63

See discussion in Todd Donovan et al., Political Consultants and the Initiative Industrial Complex in DANGEROUS DEMOCRACY? THE BATTLE OVER BALLOT INITIATIVES IN AMERICA 101 (Larry J. Sabato et al. eds., 2001). 64

Steven W. Ray, Note, The California Initiative Process: The Demise of the Single-Subject Rule, PACIFIC LAW JOURNAL 1095, 1103 (1983). 65

There are time limitations on the circulation period and the proposition is to be placed on the ballot on a specified election date, usually the next general elections. As a result, the whole process is time constrained. 66

67

ALMANAC, supra note 2, at 18-20.

Endnotes

219

See, also, JOHN M. ALLSWANG, THE INITIATIVE AND REFERENDUM IN CALIFORNIA, 1898-1998, at 246-47 (2000). 68

See Brosnahan v. Brown, 651 P.2d. 274, 292 (Cal. 1982) and also, Schmitz v. Younger 577 P.2d. 652, 657 (1978). 69

MAGLEBY, supra note 14, at 8-14. As Magleby’s polls show, most people surveyed favored the idea of dire legislation. Nevertheless, the polls also show that many people believe that voters are incompetent to decide some issues. See also Baker, supra note 37, at 753, fn. 165; CRONIN, supra note 23, at 203, fn. 10; JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW – THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY, preface p. ix (2004), describing the initiative as the right of the principals (voters) to overrule their agents (legislators); AMAR & HIRSCH, supra note 1, at 34. 70

All of these measures were constitutional amendments, not statutory initiatives. As such, they are not directly within the scope of this work. Yet, the point I want to make here is about the added value of the people’s involvement in the process. That is true for both constitutional and statutory initiatives. 71

In February 2004, the Massachusetts Supreme Judicial Court ruled that the state’s ban on gay marriage violated the Massachusetts constitution. Subsequently, the Mayor of San Francisco issued marriage licenses to gay couples that were later invalidated by the California Supreme Court. These events triggered intense political debate all across the nation. See, e.g, http://www.cnn.com/2004/LAW/02/12/gay.marriage.california.ap/ and “The Battle Over Same-Sex Marriage - Uncharted Territory, Political Landscape Upended” San Francisco Chronicle, 4.15.2004, page A-1 (also at http://www.sfgate.com). For these events’ impact on the same-sex ballot measures and the 2004 presidential race see, e.g., Focus On Marriage, BALLOTWATCH (October 2004, no. 8)(also at http://www.iandrinstitute.org/bw%202004-8%20(marriage)(update).pdf); 72

220

Endnotes

“Did Gay Marriage Galvanize Voters?” WALL STREET JOURNAL, 11.5.2004, at A5; “Same-Sex Marriage Issue Key to Some G.O.P. Races,” NEW YORK TIMES, 11.4.2004, Section P, p. 4; “A Symposium on the Politics of Same-Sex Marriage” in PS: POLITICAL SCIENCE AND POLITICS (Apr. 2005). See, e.g., http://jackman.stanford.edu/papers/RISSPresentation.pdf (accessed on 7.5.2007). 73

DUBOIS & FEENEY, supra note 54, at 80; Richard L. Hasen, Parties Take the Initiative (and Vice Versa), 100 COLUM. L. REV. 731, 735-4 (2000); see SAMUEL ISSACHAROFF et al., THE LAW OF DEMOCRACY - LEGAL STRUCTURE OF THE POLITICAL PROCESS 1007 (2nd ed., 2002) (affirms a growing tendency to place some of the most controversial issues of the day on the ballots); MATSUSAKA, supra note 70, at 83-92, 173-5 (arguing initiative state legislators are more responsive to their voters). 74

E.g., as he unveiled an initiative and referendum proposal, New York Governor, George Pataki, stated that “[t]his initiative and referendum proposal is a cornerstone of our effort to ensure that the voices of all the people of New York are heard. This fundamental reform will empower all New Yorkers by enabling them to become an integral part of the lawmaking process and giving them the power to propose and approve new laws. By reforming the democratic process, we renew our allegiance to the sacred principle that all power ultimately rests in the hands of the people.” Press release from March 12, 2002 available at http://www.ny.gov/governor/press/02/march12_1_02.htm. 75

76

See, e.g., ISSACHAROFF, id., at 1008.

77

DUBOIS & FEENEY, supra note 54, at 80.

Endnotes

221

Quoted from Associated Home Builders v. City of Livermore, 557 P.2d. 473, 477 (Cal. 1976) in J. Clark Kelso, California’s Constitutional Right to Privacy, 19 PEPP. L. REV. 327, 347 (1991-1992).

78

79

James v. Valtierra, 402 U.S. 137, 141 (1971).

Schmitz v. Younger, 21 Cal.3d 90, 91 (1978); see, also, Matter of Estate of Thompson, 692 P.2d 807 (Wash., 1984). See, also, City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. at 672-73; James v. Valtierra, 402 U.S. 137, 142 (1971). See, also, commentary in Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 WASH. L. REV. 1, 4 (1978); Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in which Majorities Vote on Minorities’ Democratic Citizenship, 60 OHIO ST. L.J. 399, 477-79 (1999). 80

See, also, James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 NOTRE DAME L. REV. 298, 306 (1998). 81

I found only one writer phrasing the initiative in a somewhat similar way. See Daniel H. Lowenstein, California Initiatives and the Single-Subject Rule, 30 UCLA L REV. 936, 964 (1982-1983).

82

83

See, J.W. SULLIVAN, DIRECT LEGISLATION

84

CITIZENSHIP (3rd ed. 1896).

BY THE

THROUGH THE INITIATIVE AND REFERENDUM, 90-120

See Appendix A.

Chapter 4 Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2049-51 (2002) (discussing interpretive differences between statutes and contracts); John Copeland Nagle, Direct Democracy and Hastily Enacted Statutes, 1996 ANN. SURV. AM. L. 535, 547-51 (1996) (discussing 1

222

Endnotes

how the haste with which a legislature passes a law is relevant in statutory interpretation); William D. Popkin, Interpreting Conflicting Provisions of The Nevada State Constitution, 5 NEV. L.J. 308 (2004); WILLIAM D. POPKIN, MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS, 373 (3rd ed., 2001). See, generally, William D. Popkin, Interpreting Conflicting Provisions of The Nevada State Constitution, 5 NEV. L. J. 308 (2004). 2

11 WILLISTON ON CONTRACTS § 31:2 (4th ed.). One example, is contra proferentem, the rule of interpretation of ambiguities against the party who drafted the contract.

3

16 WILLISTON ON CONTRACTS §49:15 (4th ed.); 11 WILLISTON ON CONTRACTS §32:12 (4th ed.); ROBERT H. JERRY, II, UNDERSTANDING INSURANCE LAW §25C (2nd. ed., 1996). 4

16 WILLISTON ON CONTRACTS § 49:14 (4th ed.); See also, Kenneth S. Abraham, A Theory of Insurance Policy Interpretation, 95 MICH. L. REV. 531 (1996-1997); JERRY, supra note 4, at §25A[C].

5

See AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 307-9, 31825 (2005); See also, 80 AM. JUR. 2D, Wills, §996-§1002, generally discussing the interpretive rules governing interpretation of wills. 6

7

See, generally, BARAK, id., at 307-38.

See relatively early examples such as, Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV 263 (1982); William N. Eskridge, Jr. & Philip F. Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. PITT. L. REV. 691, 691 (1986-1987). 8

9

See, e.g., BARAK, supra note 6, at 339-41.

Endnotes

223

There is vast literature discussing the impact of public choice theories on statutory interpretation. See, e.g., Posner, supra note 8; Kenneth A. Shepsle, Congress is a “They”, Not an “It”: Legislative Intent as Oxymoron, 12 INT’L REV. L. & ECON. 239 (1992); McNollgast, Positive: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705 (1992); William Landes & Richard Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & ECON. 875 (1975); William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988); William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L. J. 523 (1991-1992); Einer Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L. J. 31 (1991); John Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 23640 (1986). 10

See, e.g., Popkin, supra note 2, at 311 (discussing three relevant differences between statutory and constitutional interpretation). Popkin cites J. Marshall’s famous words: “[w]e must never forget that it is a constitution we are expounding” in McCulloch v. Maryland, 17 U.S. 316, 407 (1819); See, also, BARAK, supra note 6, at 370-72. 11

In Israel, e.g., the same elected body carries out both tasks of ordinary legislation and the drafting of a constitution. 12

See, GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 91-119 (1982), demonstrating how the conventional distinctions between statutory law and case law can be undermined.

13

That courts do not distinguish between initiatives and ordinary statutes is agreed by almost all scholars. See: 2 SUTHERLAND STATUTORY CONSTRUCTION § 36.05 (4th ed. 1986); Cathy R. Silak, The People Act, The Courts React: A Proposed Model for Interpreting Initiatives in Idaho, 33 IDAHO L. REV. 1, 3, 38 (1996-1997); Michael M. O’Hear, Statutory Interpretation and Direct Democracy: Lessons from the Drug Treatment Initiatives, 14

224

Endnotes

40 HARV. J. ON LEGIS. 281, 319-21 (2003); Kara Christenson, Note, Interpreting the Purposes of Initiatives: Proposition 65, 40 HASTINGS L. J. 1031, 1051 (1988-1989). See ABNER J. MIKVA & ERIC LANE, LEGISLATIVE PROCESS 154 (2nd. ed., 2002); Phillip F. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477, 482 (1996); Christenson, supra note 14, at 1051; Elizabeth Garrett, Who Directs Direct Democracy? 4 U. CHI. L. SCH. ROUNDTABLE 17, 27 (1997). 15

Some examples are MIKVA & LANE, supra note 14, at 152-4 (two page discussion of the issue affirming the lack of enough scholarly attention); WILLIAM D. POPKIN, MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS 329-31 (2nd. ed., 1997) (two page discussion of interpretation of initiatives as such) and compare with a slightly lengthier discussion in Popkin’s next edition. WILLIAM D. POPKIN, MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS 363-70 (3rd ed., 2001). 16

17

See, e.g., MIKVA & LANE, supra note 14, at 152.

See J. Clark Kelso, California’s Constitutional Right to Privacy, 19 PEPP. L. REV. 327, 346 (1991-1992). 18

19

See discussion above, Chapter 3, fn. 78-80 and accompanying text.

SAMUEL ISSACHAROFF et al., THE LAW OF DEMOCRACY - LEGAL STRUCTURE OF THE POLITICAL PROCESS 1007 (2nd ed., 2002); Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 139-44 (1995-1996); Jack L. Landau, Interpreting Statutes Enacted by Initiative: An Assessment of Proposals to Apply Specialized Interpretive rules, 34 WILLAMETTE L. REV. 487, 495 (1998); O’Hear, supra note 14, at 281-82. 20

Endnotes

21

225

See, Silak, supra note 14, at 3.

See, also, Frickey, supra note 14, at 482; DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES 192-4 (1984); Schacter, supra note 20, at 108. 22

23

See, generally, BARAK, BARAK, supra note 6, at 3 (2005).

See, e.g., ODED BALABAN, PLATO AND PROTAGORAS: TRUTH AND RELATIVISM IN ANCIENT GREEK PHILOSOPHY, 3-30 (1999); BARAK, supra note 6, at 52-3. These questions should not be confused with the positive-realist divide. The question of whether judges discover the law or invent it is closely related but not identical. The positivist assumptions about legal activity being that of discovering the law are much broader than the issue I raise here. Positivist claims are about the legal process in general and not about interpretation of a single statute or clause as such. Similarly, realist claims about judges reinventing the law are of general character. I am interested here with a more specific question pertaining to the actual psychological activity of interpreting a statute, or a clause within it. 24

REED DICKERSON, THE INTERPRETATION STATUTES 13-33 (1975). 25

AND

APPLICATION

26

Id., at 21.

27

Id., at 14.

28

See DICKERSON, id at 15-18; BARAK, supra note 6, at 52-3.

29

DICKERSON, supra note 25, at 16.

OF

See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE, 119-77 (1985); BARAK, supra note 6, at 53. 30

226

Endnotes

See general discussion in WILLIAM N. ESKRIDGE, JR., ET AL., LEGISLATION AND STATUTORY INTERPRETATION, 249-86, 329-75 (2000); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV. 1179; Blake A. Watson, Liberal Construction of CERLA Under the Remedial Purpose Canon: Have the Lower Courts Taken a Good Thing Too Far? 20 HARV. ENVTL. L. REV. 199, 208-28 (1996). 31

32

See, e.g., Frickey, supra note 14, at 500.

There are other possible distinguishing criteria and I chose the most frequent one invoked in most scholarly work. See, e.g., DICKERSON, supra note 25, at 228; Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 454 (1989-1990); Watson, supra note 31, at 22228; Stephen F. Ross Where Have You Gone Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You? 45 VAND. L. REV. 561, 563 (1992); Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and its Consequences, 45 VAND. L. REV. 743, 743-49 (1992); O’Hear, supra note 14, at 299-301; David Shapiro, Continuity and Change in Statutory Interpretation, N.Y.U.L. REV. 921, 927-40 (1992). 33

34

Frickey, supra note 14, at 500.

35

Watson, supra note 31, at 225-28.

WILLIAM N. ESKRIDGE, JR., ET AL., LEGISLATION AND STATUTORY INTERPRETATION 211-48 (2000) [hereinafter LEGISLATION]; William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 626-65 (1990) [hereinafter Textualism]; DICKERSON, supra note 25, at chapters 7 and 8; Watson, supra note 31, at 210-213; Frickey, supra note 14, at 499; O’Hear, supra note 14, at 297; Garrett, supra note 14, at 28-36. 36

Eskridge, supra note 36, at 214-18; BARAK, supra note 6, at 260-65, fn. 2; Joseph Raz, Intention in Interpretation in THE AUTONOMY OF LAW (Robert P. George ed., 1996). 37

Endnotes

227

See, Sunstein, supra note 33, at 428-34; Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 SO. CAL. L. REV. 845 (calling for more resort to legislative history). But compare with Kenneth W. Starr, Observations about the Use of Legislative History, 1987 DUKE L. J. 371 (1987) objecting resort to legislative history in search of intent. 38

39

Eskridge, Textualism, supra note 36, at 626-30.

40

Sunstein, supra note 33, at 424-25; BARAK, supra note 6, at 12-4.

41

Sunstein, supra note 33, at 426-28; BARAK, supra note 6, at 85-96.

Sunstein, supra note 33, at 433-34; Eskridge, LEGISLATION, supra note 36, at 220-21; Kenneth A. Shepsle, Congress is a “They”, Not an “It”: Legislative Intent as Oxymoron, 12 INT’L REV., L. & ECON. 239 (1992). 42

See, e.g., BARAK, supra note 6, at 260-68; Eskridge, Textualism, supra note 36, at 642 (a summary of criticisms of the search of legislative intent).

43

Frederick Schauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 806 (1981-1982).

44

Quoted in Eskridge, LEGISLATION, supra note 36, at 218, from Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REV. 379, 381 (1907). See also HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374 (Foundation Press, 1994) [hereinafter THE LEGAL PROCESS]. 45

46

ESKRIDGE, LEGISLATION, supra note 36, at 221.

Quoted in WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 26 (Cambridge, 1994) [hereinafter DYNAMIC INTERPRETATION] from THE LEGAL PROCESS, at 1415. 47

228

Endnotes

See WILLIAM N. ESKRIDGE JR. ET AL, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY, 742 (2001) and Textualism, supra note 36; But see pp. 769-71 where the authors discuss the possible decline of neo-textualism, in courts and in academia. The discussion here will primarily focus on what is known as the new-textualism rather than on classic textualism. Classic textualism, in the end, is some form of intentionalism and, as such, is of less relevance in this section. See ESKRIDGE, LEGISLATION, supra note 36, at 225. 48

Sunstein, supra note 33, at 415-18; ESKRIDGE, LEGISLATION, supra note 36, at 223-30. 49

50

Eskridge, Textualism, supra note 36, at 691.

51

See Schauer, supra note 44, at 809; ESKRIDGE, supra note 47, at 34.

Our ability to understand each other through language is based on the common concession that words carry a meaning that is not dependent on the specific intent of the speaker. When I say something I hope that I am understood correctly; that is, that my specific intent is well conveyed. But there is always a chance that I will be misunderstood, in the sense that the listener will attach a meaning to the words other than the one I really had in mind. This misunderstanding is possible only because the words I used, and the sentences they comprise, refer to independent linguistic conventions that I am trying to invoke in order to convey my message. Nevertheless, there is always a possibility that I choose words that make sense, but do not accurately reflect my intention. We must admit that words have independent meaning regardless of the intent of the speaker who tries to utilize them in order to convey his meaning. See discussion in Schauer, supra note 44, at 804-12. 52

53

See Eskridge, Textualism, supra note 36, at 650-52.

Endnotes

229

For a discussion of these points see ESKRIDGE, LEGISLATION, supra note 36, at 227-30; ESKRIDGE, DYNAMIC INTERPRETATION, supra note 47, at 34; Kenneth A. Shepsle, Congress is a “They”, Not an “It”: Legislative Intent as Oxymoron, 12 INT’L REV. L. & ECON. 239 (1992); McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705 (1992); William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988); John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 684-89 (1997). 54

See discussion in Eskridge, Textualism, supra note 36, at 650-52. This argument can be justified by scholars on several grounds. First, it can be formalistically claimed that only what has been actually enacted is law, and it is therefore unconstitutional to give any authority to unlegislated intentions. Article I, Section 7 of the Constitution demands that a bill be approved by both houses in order for it to become a law. The only thing approved by both houses is the text, not some implicit or unarticulated intentions. The text is the only thing that can be said to have been agreed upon by the many legislators (and the President). Unincorporated intentions are one thing, incorporated intentions are simply the text. So even if legislative intent was a coherent concept, it could not have been admitted into the interpretive process, at least presumptively. See ESKRIDGE, DYNAMIC INTERPRETATION, supra note 47, at 34; ESKRIDGE, LEGISLATION, supra note 36, at 227-30. Substantially speaking, there is no good reason to assign any higher value for any un-enacted will/intent of the legislators. After all, “[I]n law, the specific individuals who make up the legislature are men to whom a specialized function has been temporarily assigned. That function is not to impose their will even within limits on their fellow citizens, but to ‘pass statutes,’ which is a fairly precise operation . . . And once the words are out, recorded, engrossed, registered, proclaimed, inscribed in bronze, they in turn become instrumentalities which administrators and courts must use in performing their own special functions. The principal use is that of ‘interpretation.’ To say that the intent of the legislature decides the interpretation is to say 55

230

Endnotes

that the legislature interprets in advance . . . a situation which does not exist.” (Quoted by WILLIAM N. ESKRIDGE JR. ET AL, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 687 (2001), from Max `Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870-1 (1930)). Second, opening up the interpretive process -- in the sense of demanding interpreters to look for unlegislated intentions -- is democratically dangerous and undermines the rule of law. When interpretation becomes obsessed with discerning unwritten directives there is a likelihood that the intention actually found is a mere reflection of the political biases of the interpreter. See ESKRIDGE, LEGISLATION, supra note 36, at 229; Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L. J. 371. Forcing interpreters to be grounded by the text, and motivating legislators to pay more attention to the texts they create (since they are expected to understand its crucial role in the interpretive process) will significantly contribute to the rule of law. It will prevent the judiciary from aggressive intervention in the legislative process since it will minimize its discretional role. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2390 (2003). It will serve the democratic ideal of separation of powers by differentiating between legislation/policy-making by elected officials and adjudication. It will make the law more easily accessible to all since it will leave less room for extra-textual analysis. In short, textualism is very much in line with democratic ideals and aspirations. ESKRIDGE, DYNAMIC INTERPRETATION, supra note 47, at 34. Third, it is economically unwise to allow extra-textual analysis into the interpretive process. By perceiving text as the only source of interpretation, enormous amounts of resources, currently aimed at discerning the legislative meaning of law from a variety of other extrinsic sources, could be saved. With interpretation limited to the language and its immediate surroundings we could expect a more simple interpretive process which will demand fewer resources on part of all legal players.

Endnotes

231

Eskridge, Textualism, supra note 36, at 685-86; ESKRIDGE, LEGISLATION, supra note 36, at 229. See, e.g., Kenneth W. Starr, Observations about the Use of Legislative History, 1987 DUKE L. J. 371 and compare with Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 SO. CAL. L. REV. 845. 56

57

See, also, Stephen Salvucci, Say What You Mean and Mean What You Say: The Interpretation of Initiative in California, 871 S. Cal L. Rev. 871, 883-86 (1997-1998). 58

See Eskridge, Textualism, supra note 36, at 667.

“. . . [T]here is a difference between the intention of a text and the human thoughts that accompanied the creation of that text. Although the authority of a text is derived in part from the intention that it be authoritative, a text can have a purpose without reference to the psychological condition of its creator, as we see in the attempts of courts to derive purpose from statutes themselves. As one philosopher has put it, ‘[c]ommunication is a public, social affair and [the communicator] is not exempted from responsibility for aspects of his performance he failed to notice.’ Thus, ‘a speaker is not the sole arbiter over what import his utterances have,’ and our touchstones must be the rules of language rather than largely futile explorations into the mind of the communicator . . . This is even more true when the language used has an authoritative embodiment, as in a statute or in a written constitution. Schauer, supra note 44, at 811. Furthermore, words and linguistic conventions are not dependent-free. Oftentimes (some would claim almost always), the words’ conventional meaning is dependent on some prior understanding which is based on context and theory-oriented. That background involves much more than the narrow meaning of the word itself. When a speaker uses a certain word, he must accept the implications that that word’s meaning carries, whether he has intended so or not. These are simply the rules of the game. Schauer, supra note 44, at 826. 'Philosophers commonly argue that if a speaker says p, and p logically entails q, then the 59

232

Endnotes

speaker is committing to q even if he had never thought of q and never would have intended to say q. A similar convention of language use appears applicable to the use of theory-laden terms. When a speaker uses a theory-laden term, the speaker is committing to the theory that may at any time surround the use of the term, even if the speaker did not intend the result. If, e.g., I accuse someone of having an anal-retentive personality, my use of that term commits me to accusing him of having whatever an anal-retentive personality entails as a matter of psychiatric theory. And if I use terms such as equal protection of the laws, that too commits me to having authorized the incorporation (and, if necessary, the creation) of a theory without which the term’s meaning is incomplete. "Given that theories change, we can legitimately commit the user of theory-laden terminology to the possibility of change implicit in any theory. Thus, the users of theory-laden language such as 'the freedom of speech' and 'privileges and immunities of citizens of the United States', are committed to the meanings they have authorized by their choice of words. Whether or not the user of those terms intended to be so committed does not matter. It’s just part of the rules of the game.” Schauer, supra note 44, at 825. 60

Eskridge, Textualism, supra note 36, at 668-69.

61

See discussion in Chapter 3, section 5.

Interestingly, one state, South Dakota, has addressed statutory interpretation of initiatives and requires that initiatives “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.” SDCL § 2-1-11. 62

See Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 149 (1995-1996) (arguing that an interpretive regime of initiatives should be shaped in light of the initiatives’ uniqueness). 63

Endnotes

233

It is not my purpose here to develop an account of collective intent in general or of legislative intent in particular. The debate among scholars regarding the viability of the concept of legislative intent is all too familiar. Nevertheless, I cannot enjoy the luxury of remaining neutral on this issue. Clearly, I find the notion of collective intent and legislative intent to be rational and coherent. As I will briefly touch upon below I find most criticism on the notion of legislative intent to be exaggerated. For an excellent analysis and defenses of the concept of legislative intent and a rejection of its most popular criticism see M.B.W. Sinclair, Review Essay: Legislative Intent: Fact or Fabrication? 41 N.Y. L. SCH. L. REV. 1329 (19961997); Larry Alexander & Saikrishna Prakash, “Is that English You’re Speaking?” Why Intention Free Interpretation is an Impossibility, 41 SAN DIEGO L. REV. 967 (2004); Gerald C. MacCallum, Jr., Legislative Intent in ESSAYS IN LEGAL PHILOSOPHY (Robert S. Summers, ed., 1968); Arthur Lupia & Mathew D. McCubbins, Lost in Translation: Social Choice Theory Is Misapplied against Legislative Intent 14 J. CONTEMP. LEGAL ISSUES 585 (2004-2005). 64

See also Elizabeth A. McNellie, Note, The Use of Extrinsic Aids in the Interpretation of Popularly Enacted Legislation, 89 COLUM. L. REV. 157, 170 (1989). Note, that intentionalism and originalism are usually not identical. Intentionalism refers to the subjective intent of the legislature. Originalism refers to the conventional understanding of the statute at the time of its enactment. See BARAK, supra note 6, at 260, fn. 2. In the case of initiatives, where the public legislates, it seems that originalism and intentionalism merge. The legislative intent is the conventional understanding of the statute at the time of enactment. 65

See Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2040-48 (2002) (arguing why courts rules should attempt to maximize political satisfaction). 66

Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 117-19 (1995-1996); J. Clark Kelso, California’s Constitutional Right to Privacy, 19 PEPP. L. REV. 327, 351 (199167

234

Endnotes

1992); Jack L. Landau, Interpreting Statutes Enacted by Initiative: An Assessment of Proposals to Apply Specialized Interpretive rules, 34 WILLAMETTE L. REV. 487, 495 (1998); Stephen. H. Sutro, Comment, Interpretation of Initiatives by Reference to Similar Statutes: Canons of Construction Do Not Adequately Measure Voter Intent, 34 SANTA CLARA L. REV. 945, 955 (1993-1994). See, e.g., Missourians for Honest Elections v. Missouri Election commission, 536 S.W.2d 766, 775 (Mo. Ct. App. 1976) (“[I]t must be held that once a law has been adopted, whether through legislative enactment or the initiative procedure, and its provisions are express and unambiguous, we are not at liberty to construe the language of an act or the words embodied therein in accordance with the intentions of its supporters or opponents. The function of the courts is to enforce the law according to its terms.”); Silak, supra note 14, at 48-59; Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 119-23 (19951996). A student’s note even argues that the lack “legislative trail” in the initiatives pushes courts to focus more on the text and neglect the full range of external evidence they would ordinarily consult in the context of regular statutes. See, Elizabeth A. McNellie, Note, The Use of Extrinsic Aids in the Interpretation of Popularly Enacted Legislation, 89 COLUM. L. REV. 157, 164-66 (1989). 68

See also Stephen Salvucci, Say What You Mean and Mean What You Say: The Interpretation of Initiatives in California, 71 S. CAL. L. REV. 871, 886-86 (1997-1998). 69

See BARAK, supra note 6, at 86-7, describing common understanding of purposivism as being an abstraction of intent. 70

See Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV 263, 282-83 (1982) (making the claim that most scholars agree that Constitutional provisions should be interpreted liberally.) 71

Endnotes

72

235

See BARAK, supra note 6, at 266-68.

The judicial role of updating statutes is controversial even in the context of ordinary statutes. I claim that it is more inappropriate in the initiative context. 73

See Phillip F. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477, 506 (1996). See also Einer Elhauge’s Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027 (2002) and Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162 (2002), both articles’ underlying assumption is that such discourse exists; See, also, generally William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & Econ. 875 (1975) (offering a law and economics description of the judiciary’s discourse with other branches of government). 74

75

Frickey, supra note 74, at 507-08.

See Frickey, supra note 74, at 508; McNellie, supra note 68, at 170; Sutro, supra note 67, at 972-73. 76

Schacter, supra note 68, at 123-30. See, also, Eskridge, Textualism, supra note 36, at 642-44.

77

78

Breyer, supra note 56, at 864-67; See BARAK, supra note 6, at 261.

I would even dare to say that our ability to communicate is dependant on this habit. 79

See M.B.W. Sinclair, Review Essay: Legislative Intent: Fact or Fabrication? 41 N.Y. L. SCH. L. REV. 1329, text accompanying notes 118-24 (1996-1997). 80

E.g., California’s proposition 13 from 1978 and the “taxpayer revolt.” See California Budget Project, Proposition 13: Its Impact on California 81

236

Endnotes

and Implications for State and Local Finances (April 1997) available at http://www.cbp.org and see also general discussion at http://www.cato.org/dailys/7-30-98.html (accessed on 7.5.2007). See Sinclair, supra note 80, at 1335-65, for a persuasive account for the concept of collective intent generally and legislative intent in particular. See also discussion in Chapter 3, fn. 24-27 and accompanying text. 82

See BARAK, supra note 6, at 132-35, describing the possibility, notwithstanding potential difficulties, to ascertain subjective collective intent. 83

84

See McNellie, supra note 68, at 170-72.

85

McNellie, supra note 68, at 170.

86

See discussion below in section II.

87

See supra, Chapter 3, section 2.VI.

Compare with Elizabeth Garrett, Who Directs Direct Democracy? 4 U. CHI. L. SCH. ROUNDTABLE 17, 29-31 (1997) (rejecting textualism in the initiative context for other reasons). 88

See, Elhauge, supra note 74, at 2040-48 (arguing that statutory rules should maximize political satisfaction). 89

90

Silak, supra note 14, at 3, 35-37.

See also McNellie, supra note 68, at 172-79; Salvucci, supra note 69, at 886-88; Mihui Pak, The Counter-Majoritarian Difficulty In Focus: Judicial Review of Initiatives, 32 COLUM. J.L. & SOC. PROBS. 237, 263 (1998-1999). 91

92

Schacter, supra note 68, at 130-44.

Endnotes

93

Schacter, supra note 68, at 130.

94

Sutro, supra note 67, at 974-76; Salvucci, supra note 69, at 886.

95

Schacter, supra note 68, at 144-47.

237

Stanley Fish, Working on the Chain Gang: Interpretation in the Law and in Literary Criticism, 60 TEX. L. REV. 551 (1981-1982) (arguing in the general interpretive arena); Breyer, supra note 56, at 861-62 (presenting the argument that legislative history is incapable of helping the legal interpreter). 96

See Silak, supra note 14, at 43-44; Sutro, supra note 67 (arguing against interpretation by reference to similar statutes); Salvucci, supra note 69, at 881-82. 97

One might forcibly argue that invalidating an unconstitutional initiative is less respectful than giving it an unfaithful interpretation. Indeed, invalidation of approved initiatives is the last thing the theory of Qualified Respect implies. Only there are other ways of minimizing the need for such invalidation, pre-election review being one of them. The avoidance canon is not. See discussion in Chapter 4, section 0.

98

See Frank Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 544-51 (1983).

99

See 2B SUTHERLAND STATUTORY CONSTRUCTION, chapter 58 (2000); DICKERSON, supra note 25, at 198-16; Morell E. Mullins, Sr., Coming to Terms with Strict and Liberal Construction, 64 ALB. L. REV. 9 (2000-2001) (discussing in depth the concepts of strict and liberal interpretation). 100

Bradley C. Karkkainen, ‘Plain Meaning’: Justice Scalia’s Jurisprudence of Strict Statutory construction, 17 HARV. J. L. & PUB. POL. 401, 439-40 (1994).

101

238

Endnotes

See, e.g., David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U.L. REV. 921, 936-40 (1992) (arguing that narrow construction promotes continuity); Easterbrook, supra note 99, at 533 (arguing narrow construction reflects legislature’s political compromise); Macey, supra note 10 (arguing narrow construction promotes publicregarding legislation). 102

See Easterbrook’s similar argument in the context of ordinary legislation. Easterbrook, supra note 99, at 550-51. 103

Salvucci, supra note 69, at 884-85. Easterbrook makes a somewhat similar argument in regards to ordinary statutes. See, Easterbrook, supra note 99, at 548. 104

See detailed analysis in Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162 (2002). 105

106 Jane S. Schacter, The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995-1996).

See also ELIZABETH R. GERBER ET AL., STEALING THE INITIATIVES: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY 10910(2001) (arguing that broad and ambiguous drafting allows proposition proponents to appeal to greater audience without tackling the exact issues at hand.) 107

108

See also Salvucci, supra note 69, at 884-86.

109

Shapiro, supra note 102.

110

Shapiro, supra note 102, at 942.

111


Endnotes

112Shapiro,

239

supra note 102, at 944; see also Rodriguez, supra note 33, at

744. 113

Supra, section 2.II.b.

114

Shapiro, supra note 102, at 947-48.

115


116


117


118


Karkkainen, supra note 101, at 450-56; Rodriguez, supra note 33, at 750; Shapiro, supra note 102, at 940-41; Sunstein, supra note 33, at 457-58. 119

120

Shapiro, supra note 102, at 935-6

Shapiro, supra note 102, at 937; 2B SUTHERLAND STATUTORY CONSTRUCTION, §58:3, p. 93 (2000). 121

Shapiro, supra note 102, at 945-46; 2B SUTHERLAND STATUTORY CONSTRUCTION, §58:4, p. 98. 122

123

Supra, section 2.II.b.

Silak, supra note 14, at 44-45. 1A SUTHERLAND STATUTORY CONSTRUCTION §23:15-16 (6th ed.) 124

Currently, courts are faithful to their “no differentiation” approach and do not treat initiatives distinctly. See 1A SUTHERLAND STATUTORY CONSTRUCTION §23:24 (6th ed.) 125

240

Endnotes

See Silak, supra note 14, at 44-45. Silak makes more plausible suggestions such as less application of the rule against lenity, and interpretation of tax initiatives against the government. Id., 45-47. 126

127

Frederick Schauer, Precedent, 39 STAN. L. REV. 571 (1986-1987).

Rafael Gely, Of Sinking and Escalating: A (Somewhat) New Look on Stare Decisis, 60 U. PITT. L. REV. 89, 105 (1998-1999); ESKRIDGE, LEGISLATION, supra note 36, at 277-81. 128

DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 158-59 (1993). 129

Gely, supra note 128, at 108; Schauer, supra note 127, at 572-75; SCHOENBROD, supra note 129, at 160; ESKRIDGE, LEGISLATION, supra note 36, at 279; Michael Stokes Paulsen, Abrogating Stare Decisis By Statute: May congress Remove the Precedential Effect of ROE and CASEY, 109 YALE L. J. 1535, 1553-57 (1999-2000). 130

Gely, supra note 128, at 107; Schauer, supra note 127, at 596; Stokes, supra note, at 130, 1564-67. 131

132

Gely, supra note 128, at 109; SCHOENBROD, supra note 129, at 159.

133

Gely, supra note 128, at 106-7.

134

Silak, supra note 14, at 41-42.

135

See Gely, supra note 128, at 108-10 and accompanying references.

See Arizonans for Official English v. Arizona 520 U.S. 43, 117 S.Ct. 1055 (discussing rationales behind federal deference to state courts’ statutory interpretation); California Profile Council v. Scully 989 F.Supp. 1282, 1287-90

136

Endnotes

241

(E.D.Cal 1998) (discussing possible judicial avenues in absence of state court statutory construction).

Chapter 5 See, e.g., JOHN H. ELY, JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). 1

See Alexander M. Bickel’s classic, THE LEAST DANGEROUS BRANCH (1962).

2

See Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L. J. 1503, 1505, fn. 4 (1990). 3

Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964); Hunter v. Erickson, 39 U.S. 385, 392 (1969); Eule, supra note 3, at 1505; SAMUEL ISSACHAROFF et al., THE LAW OF DEMOCRACY - LEGAL STRUCTURE OF THE POLITICAL PROCESS 1009 (2nd ed., 2002); Marc Slonim & James H. Lowe, Judicial Review of Laws Enacted by Popular Vote, 55 WASH. L. REV. 175, 201 (1979-1980); Craig B. Holman & Robert Stern, Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts, 31 LOY. L.A. L. REV. 1239, 1246 (1998); Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in which Majorities Vote on Minorities’ Democratic Citizenship, 60 OHIO ST. L.J. 399, 475-77 (1999); Mihui Pak, The Counter-Majoritarian Difficulty In Focus: Judicial Review of Initiatives”, 32 COLUM. J.L. & SOC. PROBS. 237, 249 (1999). 4

See, e.g., WILLIAM N. ESKRIDGE JR. ET AL, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 526-7 (2001). 5

BICKEL, supra note 2, at 16-7; There are scholars who believe that this presentation of the difficulty of judicial review is unjustified. Frank I.

6

242

Endnotes

Michelman, ‘Protecting the People from Themselves,’ or How Direct Can Democracy Be? 45 UCLA L. REV. 1717, 1723 (1998); Eule, supra note 3, at 1531. GEOFFREY R. STONE ET AL. CONSTITUTIONAL LAW 44 (2005); Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1983-1984); BICKEL, supra note 2, at 16; GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 97 (1982). 7

See JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 86-7 (1980). 8

9

ELY, id., at 100-101.

10

Pak, supra note 4, at 241-42.

11

As J. ELY, supra note 8, titles his fourth chapter.

12

STONE, supra note 7, at 44.

13

BICKEL, supra note 2, at 24.

14

BICKEL, supra note 2, at 24-26.

15


16

BICKEL, supra note 2, at 239, 258; see also RONALD DWORKIN, 69-70 (1985).

A

MATTER OF PRINCIPLE

See also Pak, supra note 4, at 244-45; Julian N. Eule, Checking California’s Plebiscite, 17 HASTINGS CONST. L. Q. 151, 152 (1989). It is worth noting that a rhetoric suggesting invalidation of initiatives in the name of the people (as it is expressed in the Constitution) has been mentioned. For example, Chief Justice Bird, of the Supreme Court of California, in a dissenting opinion calling for invalidation of an approved proposition on 17

Endnotes

243

signal-subject grounds, confronts the question of muffling the people’s will. His conclusion is, interestingly, that “I have great respect for the will of the people. The sovereign power is theirs, and they have chosen to express that power through the Constitution which they, in their wisdom, saw fit to establish. Respect for the Constitution is the truest measure of a justice’s respect for the people. The Constitution speaks for the people, and as long as its voice remains strong, the voice of the people will not be muffled.” Brosnahan v. Brown, 651 P.2d. 274, 311 (Cal. 1982); see also Michael Vitiello & Andrew J. Glendon, Article III Judges and the Initiative Process: Are Article III Judges Hopelessly Elitist? 31 LOY. L. A. L. REV. 1275, 1295-1303 (1997-1998) (arguing that federal courts are in a better position to reflect popular will that initiatives). 18


19


Pak, supra note 4, at 245; See Vargas, supra note 4, at 480-505 (discussing possible justifications for judicial review of initiatives under the equal protection clause). 20

21

See discussion in Appendix A, fn. 106 and accompanying text.

Quoted in Alexander M. Bickel, Forward: The Passive Virtues, 75 HARV. L REV. 40, 61 (1961-1962) from JAMES. B. THAYER, JOHN MARSHALL 106-7 (1901) 22

23

See discussion above, Chapter 3, section 3.II and section 5.

Quoted from Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1437 (9th Cir. 1997) in Pak, supra note 4, at 244.

24

25

Eule, supra note 3, at 1581-86.

244

Endnotes

James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 NOTRE DAME L. REV. 298, 306 (1998) (suggesting this reason against pre-election judicial review). 26

In fact, that is one of the rationales for justifying judicial review altogether as discussed above, fn. 7 and accompanying text. 27

ELIZABETH GERBER ET AL., STEALING THE INITIATIVE: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY (2001); Kara Christenson, Note, Interpreting the Purposes of Initiatives: Proposition 65, 40 HASTINGS L. J. 1031, 1040-41(1988-1989) (describing difficulties involved in implementation of an initiative by a hostile administration). 28

See, e.g., Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162 (2002). 29

30

BICKEL, supra note 2, at 258; CALABRESI, supra note 7, at 92.

Lynn A. Baker, Direct Democracy: Preferences, Priorities, and Plebiscites, 13 J. CONTEMP. LEGAL ISSUES 317, 323-24 (2004). 31

32

see above fn. 4-5 and accompanying text.

33

Id., id.

34

See discussion below Appendix A, section 2.I.

35

See discussion below, Appendix A, section 2.II.

The following can illuminate the point. When one faces the ability to achieve a goal in two ways, one that involves a “white lie” while the other does not, the latter should be preferred. Simply because lying, as such, is inappropriate. This is not to say that lying is always unjustified, only that, all other things being equal, lying should be avoided. See also CALABRESI, 36

Endnotes

245

supra note 7, at 11-15, elaborating on the harsh consequences of judicial review. 37

Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71.

See, Alexander M. Bickel, Forward: The Passive Virtues, 75 HARV. L REV. 40 (1961-1962). 38

Lujan v. Defenders of Wildlife 504 U.S. 555, 560-61 (1992); STONE, supra note 7, at 105.

39

40

STONE, supra note 7, at 101.

See Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 106-9 (2002). 41

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L REV. 881 (1983); Cass Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988); see also Barak, id., describing similar trends in Israel, South Africa and India. 42

43

Scalia, id., at 894.

44

Scalia, id., at 894.

45

BICKEL, supra note 2, at 158-59, 180-83.

Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844 (1969-1970).

46

The following analysis, with slight modifications, is valid to the facial vs. as-applied review under the vagueness doctrine too. 47

246

48

Endnotes

See BICKEL, supra note 2, at 115-16; Note, supra note 46, at 847-52.

See Note, supra note 46, at 853-54, 873 for the convergence of the overbreadth and vagueness doctrines in first amendment law. See also, Bickel, supra note 22, at 62. 49

50

Note, supra note 46, at 871-72.

51


52

Note, supra note 46, at 845.

See, e.g., Elhauge, supra note 29 (basing statutory default rules on a judicial-legislature discourse). 53

54


Note, supra note 46, at 859. See, also, discussion about non-delegation, infra, Chapter 6, section 2. 55

56

Note, supra note 46, at 856-57; Bickel, supra note 22, at 62-63.

57

See discussion supra, section III.

58

See GERBER, supra note 28, 4-5, 15-26.

59

See, supra, fn. 27-28, and accompanying text.

60

367 U.S. 497 (1961) [hereinfater Poe].

61

Bickel, supra note 22, at 58-59.

62


Endnotes

63


64

Bickel, supra note 22, at 62.

247

Gordon & Magleby, supra note 26, at 304; Holman & Stern, supra note 4, at 1241-42. 65

See Note, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Elections? 53 FORDHAM L. REV. 919, 920-21 (1984-1985); Gordon & Magleby, supra note 26, at 302-18. 66

Gordon & Magleby, supra note 26, at 311-17; Note, supra note 66, at 92225. 67

Gordon & Magleby, supra note 26, at 304, 313-14; Note, supra note 66, at 922. 68

69

Note, supra note 66, at 930.

70

Note, supra note 66, at 930; Holman & Stern, supra note 4, at 1242.

Note, supra note 66, at 925-26; Gordon & Magleby, supra note 26, at 310; William E. Adams, Jr., Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 OHIO ST. L. J. 583 (1994). 71

Gordon & Magleby, supra note 26, at 304-11; Note, supra note 66, at 92627; Holman & Stern, supra note 4, at 1242-43; William Lawton Teague, Jr., Comment, Pre-Election Constitutional Review of Initiatives: A Pox on Vox Populi? 17 OKLA. CITY U. L. REV. 201, 216 (1992). 72

Gordon & Magleby, supra note 26, at 305, 308; Holman & Stern, supra note 4, at 1242-43; Teague, supra note 72, at 214; Steven W. Ray, Note,

73

248

Endnotes

The California Initiative Process: The Demise of the Single-Subject Rule, PACIFIC LAW JOURNAL 1095, 1100 (1983). 74

Gordon & Magleby, supra note 26, at 306; Adams, supra note 71, at 620.

Gordon & Magleby, supra note 26, at 312; Note, supra note 66, at 930-31; Adams, supra note 71, at 619.

75

Gordon & Magleby, supra note 26, at 310; Note, supra note 66, at 930-31; Adams, supra note 71, at 620.

76

Gordon & Magleby, supra note 26, at 301, 304; Holman & Stern, supra note 4, at 1241-42; Teague, supra note 72, at 204-206; Ray, supra note 73, at 1100; But see Gerald F. Uelman, Handling Hot Potatoes: Judicial Review Of California Initiatives After Senate v. Jones, 41 SANTA CLARA L. REV. 999, 102024 (2001) (suggesting California courts are gradually opening the door for pre-election review). 77

Florida allows the attorney general to ask for advisory opinions on the constitutionality of propositions. Montana and California have exercised substantial pre-election judicial review and blocked approval of propositions. See Note, supra note 66, at 930-31.

78

79

Gordon & Magleby, supra note 26, at 313, 304.

But see other classifications in Gordon & Magleby, supra note 26, at 302-3; Douglas C. Michael, Preelection Judicial Review: Taking the Initiative in Voter Protection, 71 CALIF. L. REV. 1216, 1228 (1983) (student comment); Note, supra note 66, at 920-21. 80

Holman & Stern, supra note 4, at 1241-42; Michael, supra note 80, at 1226-27. 81

82

Gordon & Magleby, supra note 26, at 314.

Endnotes

249

Gordon & Magleby, supra note 26, at 314; Michael, supra note 80, at 1227-28. The exception to this are claims based on single-subject grounds that are usually considered even after elections. See Michael, supra note 80, at 1228; Marilyn E. Minger, Note, Putting the “Single” Back in the Single-Subject Rule: A Proposal for Initiative Reform in California, 24 U. OF CAL. DAVIS L. REV. 879, 913-4 (1991). 83

84

Gordon & Magleby, supra note 26, at 314-15.

Teague, supra note 72, at 213-20; Gordon & Magleby, supra note 26, at 304-13; Michael J. Farrell, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Election?, 53 FORDHAM L. REV. 919, 930-35 (1985) (student note); Kenneth P. Miller, Constraining Populism: The Real Challenges of Initiative Reform, 41 SANTA CLARA L. REV. 1037, 1069-71 (2000-2001). 85

86

Adams, supra note 71, at 619-28.

I offer some ways of taking technical review seriously in the following sections. 87

88

Ray, supra note 73, at 1100.

89

Gordon & Magleby, supra note 26, at 306.

Holman & Stern, supra note 4, at 1243; Teague, supra note 72, at 205; Adams, supra note 71, at 1231 (arguing for pre-election review of singlesubject for economic reasons). 90

Jane Schacter also argues for utilizing the court room for deliberation, only after election. See discussion of her suggestions, infra, Appendix A, fn. 1-24 and accompanying text. 91

92

Uelman, supra note 77, at 1022-23.

250

93

Endnotes

Ray, supra note 73, at 1108; Uelman, supra note 77, at 1022-23.

See, M. DANE WATERS, INITIATIVES AND REFERENDUMS ALMANAC 15 (2003). 94

Senate of the State of California v. Jones, 21 Cal 4th 1142 (1999); Amalgamated Transit/Union Local 587 v. State, 142 Wash.2d 183 (2000).

95

PETER L. DUBOIS & FLOYD FEENEY, LAWMAKING BY INITIATIVE: ISSUES, OPTIONS, AND COMPARISONS 128 (1998); DANIEL LOWENSTEIN, ELECTION LAW, 36 (2004); Douglas C. Michael, Preelection Judicial Review: Taking the Initiative in Voter Protection, 71 Calif. L. Rev. 1216, 1221 (1983) (student comment); Rachael Downey, Michelle Hargrove & Vanessa Locklin, A Survey of the Single-subject Rule as Applied to Statewide Initiative, 13 J. Contemp. Legal Issues 579 (2004). 96

Millard H. Ruud, “No Law Shall Embrace More Than One Subject” 42 MINN. L. REV. 389 (1957-1958). 97

98

Ruud, supra note 97, at 391.

99


Ruud, supra note 97, at 391; Marilyn E. Minger, Note, Putting the “Single” Back in the Single-Subject Rule: A Proposal for Initiative Reform in California, 24 U. OF CAL. DAVIS L. REV. 879, 885 (1991). 100

101


See Mark Tushnet, Fear of Voting: Differential Standards of Judicial Review of Direct Legislation, 1996 NYU ANN. SURV. AM. L. 373, 384; Daniel H. Lowenstein, California Initiatives and the Single-Subject Rule, 30 UCLA L REV. 936, 944 (1982-1983); RICHARD J. ELLIS, DEMOCRATIC DELUSIONS: THE INITIATIVE PROCESS IN AMERICA 142 (2002); Karl Manheim & Edward 102

Endnotes

251

P. Howard, A Structural Theory of the Initiative Power in California, 31 LOY. L. A. L. REV. 1165, 1207-08 (1997-1998). Lowenstein, supra note 96, at 35; DUBOIS & FEENEY, supra note 96, at 138; Steven W. Ray, Note, The California Initiative Process: The Demise of the Single-Subject Rule, PACIFIC LAW JOURNAL 1095, 1098-1101 (1983). 103

104

Minger, supra note 100, at 896-97.

105

Minger, supra note 100, at 898; Lowenstein, supra note 102, at 965.

106

Lowenstein, supra note 102, at 938-41.

107


108


Perry v. Jordan, 207 P.2d 47, 50 (Cal. 1949) (quoting Evans v. Superior Court, 8 P.2d 467, 469 (Cal. 1932)); Ray, supra note 103, at 1095; Lowenstein, supra note 102, at 942-49; Minger, supra note 100, at 896-928.

109

LOWENSTEIN, supra note 96, at 35; DUBOIS & FEENEY, supra note 96, at 138; Tushnet, supra note 102, at 384.

110

Ray, supra note 103, at 1101-10; Minger, supra note 100, at 918-29; Kenneth P. Miller, Constraining Populism: The Real Challenges of Initiative Reform, 41 SANTA CLARA L. REV. 1037, 1074-78 (2000-2001). 111

112

Ray, supra note 103, at 1101-05.

Lowenstein, supra note 102, at 946; Minger, supra note 100, at 905; DUBOIS & FEENEY, supra note 96, at 148-49. 113

114

Minger, supra note 100, at 905.

252

Endnotes

Lowenstein, supra note 102; See, also, Kenneth P. Miller, Courts as Watchdogs of Washington State Initiative Process, 24 Seattle U. L. Rev. 1053, 1083-84 (2001). 115

116

Minger, supra note 100, at 923.

See illustration of how the courts should apply the strict version of the single-subject rule in Chapter 6, section 1 in the discussion of California’s Proposition 8. But see Lowenstein, supra note 102, at 963-65, for a similar understanding of the rationale behind the single-subject rule but concluding that the relaxed application is more in line with it.

117

See, e.g., Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998-1999). But compare with Lynn A. Baker, Direct Democracy: Preferences, Priorities, and Plebiscites, 13 J. CONTEMP. LEGAL ISSUES 317 (2004). 118

See Eule, supra note 3, at 1514; Cathy R. Silak, The People Act, The Courts React: A Proposed Model for Interpreting Initiatives in Idaho, 33 IDAHO L. REV. 1, 33 (1996-1997). 119

See Daniel Lowenstein, Initiatives and the New Single-subject Rule, 1 ELECTION L. J. 35 (2002); Rachael Downey, Michelle Hargrove & Vanessa Locklin, A Survey of the Single-subject Rule as Applied to Statewide Initiative, 13 J. CONTEMP. LEGAL ISSUES 579 (2004); Kenneth P. Miller, Courts as Watchdogs of Washington State Initiative Process, 24 Seattle U. L. Rev. 1053, 1083-84 (2001) (describing a similar trend in Oregon). 120

Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization 22 Cal.3d 208, 231 (1978). 121

Lowenstein, supra note 102, at 954-57; LOWENSTEIN, supra note 96, at 45-46. 122

Endnotes

123

253

Lowenstein, supra note 102, at 957-63; Lowenstein, supra note 96, at 44-

45. 124

Lowenstein, supra note 102, at 958.

125


126


127


128


129


130


131


132

See also DUBOIS & FEENEY, supra note 96, at 148-49.

See DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 44 (1993) for suggestions that logrolling is market efficient. 133

The most common form of delegation, at least in academic jargon, is delegation from the legislature to the executive. But the legislature can also delegate to the judiciary. When the people act as legislators they can, in fact, delegate to all other three branches of government. The following discussion is primarily focused on delegation of the first and most common kind. 134

Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 318 (2000). 135

254

Endnotes

See Peter H. Aranson et al., A Theory of Legislative Delegation 68 CORNELL L. REV. 1, 4 (1982-83). 136

137

Id., at 2-3.

138

Sunstein, supra note 135, at 315.

Sunstein, supra note 135, at 315; Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process 36 AM. U. L. REV. 419, 419 (1986-1987). 139

See, generally, SCHOENBROD, supra note 133; Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power 36 AM. U. L. REV. 295 (1986-1987). 140

Sunstein, supra note 135, at 319; William A. Niskanen, Legislative Implications of Reasserting Congressional Authority Over Regulations 20 CARDOZO L. REV. 939 (1998-1999). 141

Sunstein, supra note 135, at 319-20; David Schoenbrod, Separation of Powers and the Powers that Be: The Constitutional Purposes of the Delegation Doctrine 36 AM. U. L. REV. 355, 377-79 (1986-1987); Marci A. Hamilton Representation and Nondelegation: Back to Basics 20 CARDOZO L. REV. 807, 820-21 (1998-1999). 142

Sunstein, supra note 135, at 320; Lowi, supra note 140, at 303-04; Schoenbrod, supra note 133, 379-81; Paul Craig Roberts, How The Law Was Lost, 20 CARDOZO L. REV. 853 (1998-1999); Nadine Strossen, Delegation as a Danger to Liberty, 20 CARDOZO L. REV. 861 (1998-1999). 143

144


Sunstein, supra note 135, at 320-21; Aranson, supra note 136, at 63-66. But compare with Richard A. Posner, Economics, Politics, and the Reading of 145

Endnotes

255

Statutes and the Constitution, 49 U. CHI. L. REV 263, 288-90 (1982) (arguing against nondelegation from economic analysis of the legislative process). See illuminating expositions of the arguments for and against delegation in “A Symposium on Administrative Law ‘The Uneasy Constitutional Status of the Administrative Agencies’“ 36 AM. U. L. REV. 295-442 (1986-1987) and in “Symposium: The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” 20 CARDOZO L. REV. 731-1018 (19981999). 146

See JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW – THE INITIATIVE, PUBLIC POLICY, AND AMERICAN DEMOCRACY 129-32 (2004) describing the initiative process as an exercise of principals’ (voters) right to overrule their agents (legislators). 147

148

SCHOENBROD, supra note 133, at 9-10.

149

SCHOENBROD, supra note 133, at 14, 82-95, 99-106.

The argument against delegation in the initiative context is primarily targeting delegation by the people to the executive. But it appears to be valid also when delegation to the legislature is involved. In fact, it seems that the case against such delegation is even stronger. If initiatives are designed to allow the people to express their will when the legislature fails to do so, it makes little sense to allow them to use the initiative in order to pass the issue back to their representatives. 150

After conducting a case study of 11 initiatives in California, several authors concluded that broad and ambiguous drafting of initiatives grants great discretion to government officials that can in turn affect the actual implementation of a given initiative in a manner that, sometimes, is against what the proponents envisioned. Moreover, broad drafting allows proposition proponents to appeal to the majority since specific and detailed propositions are more likely to be criticized and rejected. 151

256

Endnotes

ELIZABETH R. GERBER ET AL., STEALING THE INITIATIVES: HOW STATE GOVERNMENT RESPONDS TO DIRECT DEMOCRACY 109-10 (2001). These findings support my call for a revival of the nondelegation doctrine and are in line with my arguments above. Both dangers associated with broad an ambiguous drafting can be mitigated by adherence to the suggested doctrine. 152


153


154

SCHOENBROD, supra note 133, at 120.

Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in which Majorities Vote on Minorities’ Democratic Citizenship, 60 OHIO ST. L.J. 399, 471 (1999). 155

156

Sunstein, supra note 135, at 321-28.

157


158


159


160


161


162


163


164


Endnotes

165

SCHOENBROD, supra note 133, at 183.

166


257

See also Miller, supra note 111, at 1074-78 (arguing for stricter preelection enforcement of the single-subject rule to constrain initiative lawmaking). 167

168

See, supra, Chapter 5, fn. 93 and subsequent text.

169

See discussion in Appendix A, section 3.

Scott H. Bice, Rationality Analysis in Constitutional Law, 65 MINN. L. REV. 1 (1980-1981). 170

171


172

Bice, supra note 170, at 37-39.

173

Bice, supra note 170, at 30.

174


175


PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 987-1010 (1975); Bice, supra note 170, at 50.

176

Bice, supra note 170, at 52. Bice here knowingly follows the analysis of Prof. Brest in PROCESSES OF CONSTITUTIONAL DECISIONMAKING (1975) id. 177

178

Bice, supra note 170, at 29-30, 50-51.

258

179

Endnotes


See Eule, supra note 3, at 1568, arguing for a heightened rationality review standard for initiatives based on other reasons, primarily because of an underlying fear of the initiative process. 180

181


182


183


See CALABRESI, supra note 7, at 91-119 discussing the legitimacy of judicial invalidation of old statutes. 184

See discussion on judicial review, supra, fn. 29-31 and accompanying text as well; discussion on interpretation in Chapter 4, fn. 72-77 and accompanying text. 185

186


Chapter 6 Proposition’s text is available at http://peoplesadvocate.org/prop8.html (accessed on 7.9.2007). 1

See Jeff Brown, Proposition 8: Origins and Impact – A Public Defender’s Perspective, 23 PAC. L. J. 881, 881 (1991-1992). 2

Brosnahan v. Eu, 641 P.2d 200, 204-05 (Cal. 1982) [hereinafter Brosnahan I]. 3

4

Brosnahan I, supra note 3, at 200.

Endnotes

5

See, e.g., Brosnahan I, supra note 3, at 202.

6

Id., at 201.

7

Id., at 202.

8

Id., at 206-10.

9

Id., id.

259

10

See Brosnahan v. Brown, 651 P.2d. 274, 279-80 (Cal. 1982).

11

See People v. Skinner 704 P.2d. 752, 753 (Cal. 1985) [hereinafter Skinner

I]. 12

See People v. Drew, 583 P.2d. 1318, 1320 (Cal. 1978).

13

See also Brown, supra note 2, at 906-12.

14

Id., 881-82.

15

See West’s Ann. Cal. Penal Code § 25.

16

704 P.2d. 752.

People v. Skinner, 201 Cal. Rptr. 483, 485-86 (1984) [hereinafter Skinner II]. 17

18

Id., id.

19

See Skinner I, supra note at 11, at 753.

20

Id., 757.

260

21

Id., 758.

22

Id., id.

23

Id., 759.

24

Id., id.

25

See, Brosnahan I, supra note 3, at 201.

Endnotes

See discussion in Chapter 5, section II, fn. 77-83 and accompanying text. 26

27

Id., id.

28


29

See discussion in Chapter 6, section 1.

It is indeed strange that this went unnoticed by the challengers of Proposition 8 as well as by the majority opinion. As Chief Justice Bird stated in her dissenting opinion “only once in [California’s] long history has an attempt been made to join both statutory and constitutional changed in a single initiative.” Brosnahan II, supra note 10, at 306. 30

31


Sections 3, 5 and 6 of Proposition 8 available at http://peoplesadvocate.org/prop8.html 32

33

Brosnahan II, supra note 10, at 301.

34


Endnotes

35

Brosnahan II, supra note 10, at 296.

36

See supra, fn. 16-24 and accompanying text

261

See also Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71 (discussing the problems with the avoid constitutional issues canon) and discussion above in Chapter 4, fn. 97 and accompanying text 37

38

Skinner I, supra note at 11, at 758.

39

See Brosnahan II, supra note 10, at 758.

40

See Skinner II, supra note 17, at 486-87.

41

Id., id.

Skinner I, supra note at 11, at 765-66. Interestingly, C.J. Bird who dissented in both Brosnahan I and II, by arguing Proposition 8 violated the single-subject rule, was brave enough to dissent in Skinner II, by arguing that the court’s rewriting of the statute was misplaced. In that sense, C.J. Bird was intuitively applying the theory of Qualified Respect; that is, aggressive judicial review on single-subject grounds, preferably before elections, but taking the back seat once the proposition is approved even if that entails approval of a bad policy choice. 42

See, e.g., Evangelatos v. Superior Court 753 p.2d 585, 598 (Cal. 1985) (absent express retroactivity provision, statute will not be applied retroactively); 58 CAL. JUR. 3D STATUTES §32. 43

44

753 P.2. 585 (Cal. 1988) [hereinafter Evangelatos].

45

Evangelatos, supra note 44, at 592.

46

Id., id.

262

47

Id., at 597-98.

48

Id., at 598.

49

Id., at 599.

50

Id., at 601.

51

Id., at 601.

52

Id., at 610.

53

532 P.2d. 1226 (Cal. 1975).

54

578 P.2d. 899 (Cal. 1978).

55

Evangelatos, supra note 44, at 589-92.

56

Id., at 607-08.

57

Id., at 607.

58

Id.

59

Id., at 617.

60

Id., at 619-20.

61

Id., at 620.

62

Id., at 622.

63

Id., at 621.

Endnotes

Endnotes

64

See supra, Chapter 5, section 2.

65

Evangelatos, supra note 44, at 641.

66

id., 601.

67

See discussion in Chapter 4, section 2.II.

263

Appendix Jane S. Schacter, The Pursuit of “Popular Intent”: Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995-1996). As Schacter admits there are three previous student notes as well as one article by Prof. J. Clark Kelso that I will discuss below. 1

2

Schacter, supra note 1, at 111, 117.

3

Id., at 117-19.

4

Id., at 120.

5

Id., at 120.

6

Id., at 120-21.

7

Id., at 122.

8

Id., at 131-35.

9

Id., at 130-44.

Id., at 124. See also discussion in Chapter 4, fn. 77-82 and accompanying text. 10

264

11

Id., at 125.

12

Id., at 144-45.

13

Id., at 127.

14

Id., id.

15

Id., id.

16

Id., at 129.

17

Id., id.

18

Id., at 156.

19

Id., at 155-56.

20

Id., at 156-59.

21

Id., at 157.

22

Id., at 159.

23

Id., at 157, fn. 216.

24

Id., at 161-64.

Endnotes

Stephen Salvucci, Say What You Mean and Mean What You Say: The Interpretation of Initiatives in California, 71 S. CAL. L. REV. 871 (1997-1998).

25

Stephen. H. Sutro, Comment, Interpretation of Initiatives by Reference to Similar Statutes: Canons of Construction Do Not Adequately Measure Voter Intent, 34 SANTA CLARA L. REV. 945 (1993-1994). 26

Endnotes

27

Id., page 966 on.

28

Id., at 967-69.

29

Id., at 969-70.

265

Phillip F. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477 (1996).

30

31

Id., at 506.

32

Id., at 506.

Id., at 507; see also Sutro, supra note 26 (rejecting interpretation of initiatives by reference to similar statutes since harmonizing via cross reference does not reflect electorate’s intent); J. Clark Kelso, California’s Constitutional Right to Privacy, 19 PEPP. L. REV. 327 (1991-1992) (arguing that because the people never take an oath to uphold constitutional values interpretation of initiatives should be unique). 33

34

Frickey, supra note 30, at 512-17.

35

Id., at 517-22.

36

Id., at 522-26.

Jack L. Landau, Interpreting Statutes Enacted by Initiative: An Assessment of Proposals to Apply Specialized Interpretive rules, 34 WILLAMETTE L. REV. 487 (1998). 37

38

Id., at 490, 522.

39

Id., at 513.

266

Endnotes

40

Id., at 508-15.

41

H. L. RICHARDSON in his book, WHAT MAKES YOU THINK WE READ 38 (1978), as quoted by Landau, id., at 514.

THE BILLS? 42

Landau, id. at 520-23.

43

Id., at 516-18, 523.

44

Id., at 524-26.

45

Id., at 527.

46

Id., at 528-32.

47

Id., at 491-94.

48

Id., at 497-99.

49

Id., at 496-97.

Michael M. O’Hear, Statutory Interpretation and Direct Democracy: Lessons from the Drug Treatment Initiatives, 40 HARV. J. ON LEGIS. 281, 325-6 (2003). See also J. Copeland Nagle, Direct Democracy and Hastily Enacted Statutes, 1996 ANN. SURV. AM. L. 535, 544-45 (1996) (arguing legislatures often legislate hastily thus suffering from similar deficiencies as direct legislation); John Gastil et al., There’s More Than One Way to Legislate: An Integration of Representative, Direct, and Deliberative Approaches to Democratic Governance, 72 U. COLO. L. REV. 1005, 1017-25 (2001) (arguing deliberation in the initiative context, is in some sense even superior to that in ordinary legislation). 50

51

O’Hear, id., at 321.

Endnotes

52

267

Id., at 322-37.

Elizabeth A. McNellie, Note, The Use of Extrinsic Aids in the Interpretation of Popularly Enacted Legislation, 89 COLUM. L. REV. 157, 169 (1989).

53

54

Id., at 170.

55

Id., at 170.

Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 CHI.-KENT L. REV. 707, 759-66 (1991); see also Robin Charlow, Judicial Review, Equal Protection and The Problem With Plebiscites, 79 CORNELL L. REV. 527, 570-72, 601 (1994) (arguing that there is no room for differentiation between initiatives and ordinary statutes since evidential difficulties regarding “discriminatory purpose” are present in both contexts). 56

57

McNellie, supra note 53, at 770-72.

See WILLIAM N. ESKRIDGE JR. ET AL, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 526 (2001). 58

Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L. J. 1503, 1514-15 (1990). 59

60

Id., at 1515.

61

Id., at 1515-18.

Id., at 1519-20 and see discussion above, Chapter 2, fn. 62-70 and accompanying text as well as Chapter 3, fn. 25-31 and accompanying text.

62

63

Id., at 1520-22.

268

64

Id., at 1548-49.

65

Id., at 1558-68.

66

Id., at 1568.

Endnotes

Hans A. Linde, State Courts and Republican Government, 41 SANTA CLARA L. REV. 951 (2000-2001); Hans A. Linde, When Initiative Lawmaking is not “Republican government”: The Campaign Against Homosexuality, 72 ORE. L. REV. 19 (1993); Hans A. Linde, Who Is Responsible for Republican Government? 65 U. COLO. L. REV. 709 (1993-1994); Hans A. Linde, When Is Initiative Lawmaking Not “Republican Government”? 17 HASTINGS CONST. L. Q. 159 (1989). See also Frank I. Michelman, “Protecting the People from Themselves” or How Direct Can Democracy Be? 45 UCLA L. REV. 1717 (1998). Some even go further and argue that direct legislation, as an institution, is unconstitutional altogether. See, e.g., Steven William Marlowe, Direct Democracy Is Not Republican Government, 24 SEATTLE U. L. REV. 1035 (2001) (arguing that initiative lawmaking is unconstitutional); Brewster C. Denny, Initiatives – Enemy of the Republic, 24 SEATTLE U. L. REV. 1025, 1032 (2001) (suggesting to rule out most ballot issues as unconstitutional); Catherine A. Rogers & David L. Faigman, “And to the Republic for Which It Stands”: Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L. Q. 1057, 1066-71 (1996) (arguing direct legislation is a violation of the Guarantee Clause and should be held unconstitutional); Douglas H. Hsiao, “Invisible Cities: The Constitutional Status of Direct Democracy in a Democratic Republic”, 41 Duke L. J. 1267 (1991-2) (arguing that direct legislation is not republican and thus unconstitutional). 67

Hans A. Linde, When Initiative Lawmaking is not “Republican government”: The Campaign Against Homosexuality, 72 ORE. L. REV. 19, 21-30 (1993) [hereinafter Campaign] and compare with Frank I. Michelman, “Protecting the People from Themselves,” or How Direct Can Democracy Be? 45 UCLA L. REV. 1717 (1998), who argues even that direct democracy does not propone democratic values and ideals. 68

Endnotes

69

269

223 U.S. 118 (1912).

See discussion regarding the constitutionality of the initiatives, supra, Chapter 1, fn. 37-44 and accompanying text. 70

Steven Frias, Power To The People: How The Supreme Court Has Reviewed Legislation Enacted Through Direct Democracy, 31 SUFFOLK U. L. REV. 721, 738-39 (1998); Eule, supra note 59, at 1544; Hans A. Linde, State Courts and Republican Government, 41 SANTA CLARA L. REV. 951, 953-56 (2000-2001) [hereinafter State Courts]; Hans A. Linde, Who Is Responsible for Republican Government? 65 U. COLO. L. REV. 709 (1994) [hereinafter Republican]. 71

Furthermore, Linde finds Justice White’s assertion that invalidating direct legislation would entail complete nullity of the State of Oregon as dicta. See Linde, State Courts, supra note 71, at 966; Linde, Campaign, supra note 68, at 30. 72

73

Linde, State Courts, supra note 71, at 955-56.

74

Id., id.

75

44 Or. 118 (1903).

76

Id., at 145-46.

77


78


Linde, State Courts, supra note 71, at 961-64. See also Linde, Republican, supra note 71. 79

Linde, State Courts, supra note 71, at 963; Linde, Campaign, supra note 68, at 42-43.; Linde, Republican, supra note, at 717. 80

270

Endnotes

Linde, State Courts, supra note 71, at 964-65. See, also, Denny, supra note 67 (arguing that initiatives make bad budget laws and should be declared unconstitutional). 81

82


Linde, State Courts, supra note 71, at 965-66; Linde, Campaign, supra note 68, at 35-39 (1993) 83

84

Linde, State Courts, supra note 71, at 966.

Lawrence G. Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc. 91 HARV. L. REV. 1373, 1415-6 (19771978). 85

86

Id., at 1418.

Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 WASH. L. REV. 1, 12-13, 18-19, 23-24 (1978).

87

Marc Slonim & James H. Lowe, Comment, Judicial Review of Laws Enacted by Popular Vote 55 WASH. L. REV. 175, 206 (1979-1980). In essence this is a call for a applying the intermediate scrutiny standard for initiatives. 88

See Mihui Pak, The Counter-Majoritarian Difficulty In Focus: Judicial Review of Initiatives”, 32 COLUM. J.L. & SOC. PROBS. 237 (1999) (proposing that courts express less restraint when reviewing initiatives); Sylvia Lazos Vargas, Judicial Review of Initiatives and Referendums in which Majorities Vote on Minorities’ Democratic Citizenship, 60 OHIO ST. L.J. 399 (1999) (proposing a harder test for judicial review of initiatives one that focuses on statutory impacts not on legislative motives); William E. Adams, Jr., Is It Animus or a Difference of Opinion? The Problems Caused by the Invidious Intent of Anti-Gay Ballot Measures, 34 WILLAMETTE L. REV. 449 (1998) (arguing for 89

Endnotes

271

heightened scrutiny based on potential harm to homosexuals); Steven William Marlowe, Direct Democracy Is Not Republican Government, 24 SEATTLE U. L. REV. 1035 (2001) (arguing that initiative lawmaking is unconstitutional). See, e.g., C.B. Holman & R. Stern, Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts, 31 LOY. L.A. L. REV. 1239, 1247-49 (1998); Charlow, supra note 56; Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV. 395, 396 (2003) (arguing for a harder judicial look based on the claim that initiatives represent the will of its proponents instead of the people). 90

Mark Tushnet, Fear of Voting: Differential Standards of Judicial Review of Direct Legislation, 1996 NYU ANN. SURV. AM. L. 373, 376-77. 91

92

Id., at 379-83.

93

Id., at 380.

94

Id., at 382-83.

See also Holman & Stern, supra note 90, at 1247-49 (arguing that initiatives are not any more tyrannizing or any less deliberative than ordinary statutes). 95

96

Tushnet, supra note 91, at 385-92.

97

Id., at 385-86.

98

Id., at 387.

99

Id., at 389.

272

100

Id., at 389.

101

Baker, supra note 56, at 759-67.

Endnotes

See, e.g., Eule, supra note 59, at 1551-52, fn. 214 (arguing it is hard to evaluate whether initiatives, as such, tend to be more tyrannizing against minorities); Holman & Stern, supra note 90, at 1247-49 (arguing that initiatives are not any more tyrannizing or any less deliberative than ordinary statutes); Charlow, supra note 56, at 626 (claiming there is enough good and bad initiatives to proof any point); James M. Fischer, Plebiscites, the Guaranty Clause, and the Role of the Judiciary, 41 SANTA CLARA L. REV. 973, 984 (2001). 102

See Baker, supra note 56, at 708 (arguing initiatives contributed to the fight for women’s suffrage, abolition of poll tax, establishment of eight hour work day and campaign finance regulations); Bill Zimmerman, California Initiatives: If They Ain’t Broke, Don’t Fix ‘Em, 41 SANTA CLARA L. REV. 1027, 1031-33 (2000-2001) (listing examples of “good” initiatives). 103

Prof. Eule, who opposes the process in general, admits that “if our goal is to assess majority will, the legislature appears to start at a distinct disadvantage. Even if it does better than plebiscites at aggregating individual preferences, its collective judgment is still one large step away from reflecting popular will.” Eule, supra note 59, at 1521. 104

105

Vargas, supra note 89, at 462-64, 470-71.

Charlow, supra note 56, at 629 (implying different agendas are the incentive behind calls from stricter equal protection scrutiny of initiatives). 106

107

Baker, supra note 56, at 757-58.

108

Charlow, supra note 56, at 571-72.

Endnotes

273

See a discussion of such an attempt, supra, fn. 67-84 and accompanying text. 109

Richard H. Fallon, Jr., What Is Republicanism, and Is It Worth Reviving? 102 HARV. L. REV. 1695, 1698 (1988-1989). See also Fischer, supra note 102, at 979-80; Nagle, supra note 50, at 544; G. Edward White, Reading the Guarantee Clause 65 U. COLO. L. REV. 787 (1994) (arguing that the term republican has lost its meaning). 110

WILLIAM WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 13 (1962) quoted in Fischer, supra note 102, at 998. 111

See Fallon, supra note 110, at 1723-24 (suggesting republican “revivalists” such as G. Frug and M. Sandel would “permit more citizens to participate efficaciously in the politics of self government”); AKHIL REED AMAR & ALAN HIRSCH, FOR THE PEOPLE 41-4 (1998); Akhil Reed Amar The Central Meaning of Republican Government: Popular Sovereign, Majority Rule, and the Denominator Problem 65 U. COLO. L. REV. 749, 756-59 (1994); Richard Collins, Initiative Enigmas 65 U. COLO. L. REV. 807 (1994) (arguing that the Constitution Framers’ intent supports resort to initiatives). 112

113

Note, Constitutionality of the Referendum, 41 YALE L.J. 132, 133 (1931).

Frickey, supra note 30, at 507; see also Sutro, supra note 26 (rejecting interpretation of initiatives by reference to similar statutes since harmonizing via cross reference does not reflect electorate’s intent). 114

Quoted in WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 26 (Cambridge, 1994) from HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1415 (Foundation Press, 1994). 115

See Peter L. Strauss, Comment, Legal Process and Judges in the Real World, 12 CARDOZO L REV 1653, 1659-60 (1991). 116

274

117

Endnotes

See, e.g., supra, fn. 1-29 and accompanying text.

See, J. Clark Kelso, California’s Constitutional Right to Privacy, 19 PEPP. L. REV. 327, 340-44 (1991-1992) (arguing that because no elected officials exercise any control on the initiative process then initiatives should be interpreted differently than ordinary statutes). 118

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INDEX

Dickerson, Reed, 65 Dworkin, Ronald, 138 Easterbrook, Frank, 70 Ellis, Richard, 196- 97 Eule, Julian, 182, 183, 186 Evangelatos v. Superior Court, 158164 Fallon, Richard, 190-191 free speech, 116 Frickey, Philip, 177-181 Garrett, Elizabeth, 195 Gerber, Elizabeth, 197 Hart, Henry, 69, 191 judicial review, 2, 6, 8, 35, 98138, 151, 182, 186, 187 as-applied, 109, 110, 112, 168, 245 chilling effect, 110 desuetude, 112, 113, 114, 168 facial review, 110, 112 majoritarian difficulty, 99, 101, 102 post-election, 100, 111, 118, 151-152, 164 pre-election, 100, 111, 114, 115-123, 138, 139, 147, 151

American Motorcycle Assn. v. Superior Courts, 160-165, 183 Baker., Lynn, 188 Bell, Derrick, 186 Bickel, Alexander, 100, 101, 102, 103, 106, 112, 113 Broder, David, 197 Brosnahan v. Eu, 145-163 conflict of statutes, 94 Cronin, Thomas, 32, 195, 197, 198, 199 democracy, 2, 5, 6, 7, 9, 10, 11, 12, 13, 14, 17, 21, 22, 23, 24, 25, 26, 28, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 59, 67, 79, 99, 100, 101, 103, 106, 133, 171, 174, 183, 184, 186, 191 and fairness, 38, 39, 40, 48, 162, 163 and morality, 23, 39, 45, 46, 47, 48, 101 and participation, 25, 26, 37, 39, 40, 41, 48, 49, 79, 104, 175, 182, 191

287

288 rational basis review, 100, 139, 140, 141 right of standing, 107, 108, 168 Kadderly v. City of Oregon, 13, 184185 Landau, Jack, 178-181 legislative intent, 3, 4, 57, 64, 67, 68, 69, 70, 71, 73, 74, 78, 79, 80, 81, 94, 141, 142, 150, 154, 155, 160, 164, 165, 167, 172, 173, 174, 179, 183 Li v. Yellow Cab Co., 160, 161, 162, 163, 165 Linde, Hans, 183, 184, 185, 186 Lowenstein, Daniel, 126, 128, 129, 130 nondelegation doctrine, 111, 131, 132, 133, 134, 135, 136, 137, 139, 168 Pacific States Telephone & Telegraph Company v. Oregon, 13, 14, 184 People v. Drew, 148, 149, 148 Poe v. Ullman, 112 political satisfaction, 22, 48, 79, 87, 103, 111, 121, 167 popular will, 3, 30, 42, 43, 49, 58, 75, 76, 79, 82, 87, 88, 94, 102, 103, 108, 126, 131, 156, 182, 192, 243, 189 Proposition 51, 158, 159, 160, 161, 162, 163, 165 Proposition 8, 145, 147, 148, 149, 150, 151, 152, 153, 155, 156, 157

Index retroactive legislation, 93 Sacks, Albert, 69, 191, 227, 191 Scalia, Antonin, 70, 108 Schacter, Jane, 80, 81, 88, 172, 173, 174, 175, 176, 179, 180, 181 Schoenbrod, David, 133, 135, 137, 138 separation of powers, 116, 118, 120, 131 Shapiro, David, 89-92 single subject rule, 20, 50, 124, 125, 126, 127, 128, 129, 130, 139, 147, 148, 151, 152, 153, 158, 168 statutory interpretation, 2, 8, 62, 63, 64, 65, 66, 72, 77, 78, 82, 93, 94, 96, 98, 105, 156, 159, 168, 173, 176, 177, 179, 192 canons of, 3, 65, 66, 81, 87, 89, 91, 92, 93, 94, 136, 137, 158, 160, 165, 168, 176178, 180, 192 intentionalism, 66, 69, 7276, 78, 80, 94, 130, 173 narrow construction, 73, 74, 83, 85, 86, 87, 89, 90, 93, 94, 157, 165, 176, 180 purposivism, 66, 78 stare decisis, 95, 96, 97, 98, 168 textualism, 66, 70, 71, 72, 78, 79, 83 Sunstein, Cass, 136, 138 Tushnet, Mark, 186-188

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