Political responses to supreme court decisions

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 113-123

  Hamilton, Marci A ^a  

^a YESHIVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 64249163217     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (74)

1. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434, 435-37, 478-79 (1998).
2. See id. at 473-78.
3. Compare THE FEDERALIST NO. 68, at 412 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[T]he sense of the people should operate in the choice of the [President]....."),
4. and id. at 413
5. ("[T]he executive should be independent for his continuance in office on all but the people themselves."), with 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 48 (Max Farrand ed., 1911) [hereinafter FARRAND] ("The people ... [immediately] should have as little to do as may be about the Government. They want information and are constantly liable to be misled." (brackets in original) (statement of Roger Sherman)).
6. See infra notes 5-8 and accompanying text.
7. FARRAND, supra note 3, at 48 (brackets in original) (statement of Roger Sherman).
8. See id.
9. Id. (footnote omitted) (statement of Elbridge Gerry).
10. 2 Id. at 31 (statement of George Mason).
11. See Kenneth W. Starr, The Court of Pragmatism and Internationalization: A Response to Professors Chemerinsky and Amann, 94 GEO. L.J. 1565, 1582 (2006) ("In 1787, America knew that the Articles of Confederation had failed badly.....").
12. See 2 FARRAND, supra note 3, at 288 ("What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States." (statement of John Mercer)).
13. See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV. 395, 401-02 & n.23 (2003).
14. See Elizabeth Garrett, Who Directs Direct Democracy?, 4 U. CHI. L. SCH. ROUNDTABLE 17, 24 (1997) ("The framers... realized that the real world legislature would often diverge from an ideal one. Accordingly, they constructed an institutional structure designed to constrain the influence of factions and to encourage deliberation....");
15. Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-Rule with an Attorneyship Model of Representation, 69 N.Y.U L. REV. 477, 523-32 (1994) [hereinafter Hamilton, Discussion and Decisions] (arguing that the Framers intended that elected representatives exercise independent judgment with a view toward the common good while at the same time always remaining accountable to the people, from whom they receive their power and authority);
16. Marci A. Hamilton, The People: The Least Accountable Branch, 4 U. CHI. L. SCH. ROUNDTABLE 1, 8-10 & nn.34 & 40 (1997) ("The Constitution frees representatives from direct control by the people during the term of representation so that they may make the decisions that are in the country's best interest.").
17. See Garrett, supra note 12, at 17 (explaining that many "mechanisms of direct democracy" originated in the populist and progressive movements at the turn of the twentieth century);
18. Maimon Schwarzschild, Popular Initiatives and American Federalism, or, Putting Direct Democracy in Its Place, 13 J. CONTEMP. LEGAL ISSUES 531, 537 (2004) ("The initiative is... a device that was championed by the late nineteenth and early twentieth century Progressives as a counterweight to what the Progressives saw as corrupt back-room politics.").
19. See Garrett, supra note 12, at 18 ("Very little scholarly attention has been directed to the appropriate method of interpreting laws passed by direct democracy." (footnote omitted));
20. Schwarzschild, supra note 13, at 537 (indicating that the initiative process exists in about half of the states, most of which are west of the Mississippi).
21. See Garrett, supra note 12, at 18 (arguing that "special interests, not ordinary citizens," wield a disproportionate influence in both "[traditional lawmaking and direct lawmaking").
22. See Hamilton, Discussion and Decisions, supra note 12, at 523-27 (explaining that, under the delegated authority model, "the ... legislator ... was supposed to be seeking the ideal common good, not listening to a daily cacophony").
23. Cf. Marci A. Hamilton, Direct Democracy and the Protestant Ethic, 13 J. CONTEMP. LEGAL ISSUES 411, 416, 452 (2004) (arguing that part of the Framers' intent in selecting a representative form of government was to curb self-interest in favor of the common good).
24. See Garrett, supra note 12, at 18-23 ("Special interests have a comparative advantage in determining both what questions are placed on the ballot for popular decision and how those questions are drafted.");
25. see also David B. Magleby, Let the Voters Decide? An Assessment of the Initiative and Referendum Process, 66 U. COLO. L. REV. 13, 46 (1995) (arguing that many proposals blocked in the legislature by "powerful interests ... run into the same phalanx of interest groups in the [ballot] election campaign").
26. See Garrett, supra note 12, at 23 ("[T]he salience of issues for public debate and decision in both [direct democracy and representative democracy] turns largely on how organized interests spend their money to influence the media, to pay for advertising, and to put issues before the public." (footnote omitted)).
27. See Glenn C. Smith, Solving the "Initiatory Construction" Puzzle (and Improving Direct Democracy) by Appropriate Refocusing on Sponsor Intent, 78 U. COLO. L. REV. 257, 265 (2007) (arguing that "initiative sponsors" campaign "through simplistic, and, at times, misleading, slogans in short, emotional advertisements and in media 'sound bites'" (footnote omitted)).
28. See John G. Matsusaka, Fiscal Effects of the Voter Initiative in the First Half of the Twentieth Century, 43 J.L. & ECON. 619, 641 (2000) (concluding that "initiative states decentralized expenditure (from state to local governments) more than noninitiative states").
29. See id. at 639-40 (evaluating empirical data in three states and finding that "21 initiatives were approved that increased spending, taxes, or borrowing compared to 11 initiatives that reduced spending, taxes, or borrowing");
30. see also Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy, 78 S. CAL. L. REV. 949, 973 (2005) (discussing the Colorado initiative "FasTracks," which passed in November 2004 and appropriated increased funds for mass transit).
31. See ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 100 (1970) (contrasting populist majoritarianism against the Framers' system of complex checks and balances among countervailing groups and factions); Hamilton, supra note 17, at 452 ("The mob was a vivid image for the Framers, and they crafted the Constitution ... to restrain mobs and factions from violence and lawmaking against the public interest." (footnote omitted)).
32. 1,911 BEST THINGS ANYBODY EVER SAID 232 (Robert Byne ed., 1988) (quoting Otto von Bismarck). Despite the truth of the quotation, it may be apocryphal and it has appeared in different versions. In 1958, the Florida Supreme Court attributed a different version of the same quotation to Bismarck: "[T]o retain respect for sausages and laws, one must not watch them in the making." In re Graham, 104 So. 2d 16, 18 (Fla. 1958).
33. See Clark, supra note 1, at 477 (arguing that representative government not only identifies popular will but also modifies and improves it through the deliberative process).
34. See id. at 476-82.
35. See Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. REV. 505, 608 (1982) ("[T]he power of some groups to raise enormous sums of money to oppose ballot propositions... seriously interferes with the ability of other groups to use the institutions of direct democracy for their intended purpose.");
36. cf. James A. Gardner, Comment, Protecting the Rationality of Electoral Outcomes: A Challenge to First Amendment Doctrine, 51 U. CHI. L. REV. 892, 892 (1984) (asserting that people often vote irrationally by casting their vote "on the basis of incomplete information, or without understanding election issues, or in response to factors unrelated to the candidates' fitness for office" (footnotes omitted)).
37. 545 US. 469 (2005).
38. See Jonathan Zasloff, Left and Right in the Middle East: Notes on the Social Construction of Race, 47 VA. J. INT'L L. 201, 228 (2006) (relating that Kelo was selected as a test case by the Institute for Justice).
39. See Kelo, 545 U.S. at 475.
40. Id. at 489.
41. See, e.g., Tim Cavanaugh, Property Seizures and the New London Tea Party, REASON, Nov. 2005, at 25 ("Few events in the last 25 years have prompted a national uproar over a specifically libertarian issue. Fewer still have produced as much outrage as the U.S. Supreme Court's June ruling in Kelo v. City of New London.");
42. Kenneth R. Harney, Court Ruling Leaves Poor at Greatest Risk, WASH. POST, July 2, 2005, at F1 ("In brief: The court's decision leaves you in a weaker position, at least under federal law, than you might imagine.");
43. Adam Karlin, A Backlash on Seizure of Property, CHRISTIAN SCI. MONITOR, July 6, 2005, at 1 ("[Kelo] is fueling a nationwide backlash ....");
44. Elizabeth Mehren, States Acting to Protect Private Property, LA. TIMES, Apr. 16, 2006, at A1 (discussing the "landslide of legislation" that Kelo spurred);
45. Mark Steyn, Eminent Case of Domain Poisoning, WASH. TIMES, July 3, 2005, available at http://www.washingtontimes. com/news/2005/jul/03/20050703-101101-4646r/ ("On this Independence Day weekend, the people might wish to give some thought as to how they might reclaim their independence from the godlike Supremes.").
46. See, e.g., Marie Price, Their Way or the Highway, TULSA WORLD, Nov. 21, 2005, at All; Dimitri Vassilaros, Editorial, This Won't Protect Property, PITT. TRIB.-REV., Dec. 23, 2005, at A15.
47. See Marcilynn A. Burke, Much Ado About Nothing: Kelo v. City of New London, Babbit v. Sweet Home, and Other Tales from the Supreme Court, 75 U. CIN. L. REV. 663, 683 (2006) ("Perhaps the only surprising part of [Kelo] was Justice Sandra Day O'Connor's scathing dissent....");
48. John M. Zuck, Note, Kelo v. City of New London: Despite the Outcry, the Decision is Firmly Supported by Precedent - However, Eminent Domain Critics Still Have Gained Ground, 38 U. MEM. L. REV. 187, 187-88, 192 (2007) (relating that despite the Supreme Court's adherence to precedent in Kelo, "[n]ewspapers and magazines exploded with reaction and analysis").
49. See Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 244-45 (1984) (sustaining the constitutionality of the taking at issue and adding that the "Court long ago rejected any literal requirement that condemned property be put into use for the general public"); Berman v. Parker, 348 U.S. 26, 35-36 (1954) (upholding government's use of the taking power to condemn blighted areas, including parcels of well-kept properties lying within designated blighted areas).
50. In 2006, thirteen states included takings initiatives on their ballots. See Bill Want, The Lucas Case: The Trial Court Strategy and the Case's Effect on the Property Rights Movement, 27 STAN. ENVTL. L.J. 271, 294 (2008).
51. 494 U.S. 872, 878-82, 890 (1990).
52. Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 107 Stat. 1488, invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).
53. See 42 U.S.C. §§ 2000bb.
54. ALA. CONST, amend. DCXXII;
55. ARIZ. REV. STAT. ANN. §§ 41-1493 to -1493.02 (2004);
56. CONN. GEN. STAT. ANN. § 52-571b (West 2005);
57. FLA. STAT. ANN. §§ 761.01-.05 (West 2005);
58. IDAHO CODE ANN. §§ 73-401 to 404 (2006);
59. ILL. COMP. STAT. 35/1-35/99 (2006);
60. MO. ANN. STAT. §§ 1.302, 1.307 (West Supp. 2008);
61. N.M. STAT. ANN. §§ 28-22-1 to -5 (LexisNexis 1978);
62. OKLA. STAT. ANN. tit. 51, §§ 251-258 (West 2008);
63. PA. CONS. STAT. ANN. §§ 2401-07 (West Supp. 2008);
64. R.I. GEN. LAWS §§ 42-80.1-1 to -4 (2006);
65. S.C. CODE ANN. §§ 1-32-10 to -60 (2005);
66. TEX. CIV. PRAC & REM. CODE ANN. §§ 110.001-.012 (Vernon 2005).
67. MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW 10 (2005) (identifying RFRA as "the grand blind exemption of all time").
68. Elizabeth Garrett, Hybrid Democracy, 73 GEO. WASH. L. REV. 1096, 1097 (2005) (defining a "hybrid democracy" as a government that is "neither wholly representative nor wholly direct, but rather a complex combination of both at the local and state levels, which in turn influences national politics").
69. See Marci A. Hamilton, The Calvinist Paradox of Distrust and Hope at the Constitutional Convention, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT 293, 293 (Michael W. McConnell et al. eds., 2001) (describing the Calvinist perspective as a "marriage of distrust in individuals but hope in properly structured institutions").
70. See G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions, 59 N.Y.U. ANN. SURV. AM. L. 329, 335 (2003) (explaining that States enacted these rules "with the expectation that greater transparency in the legislative process would deter abuses or at least increase accountability for them" (footnote omitted));
71. Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT. L. REV. 797, 798-99 (1987) (citing examples of procedural limitations).
72. See U.S. CONST, amend. XVII.
73. See, e.g., Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment, 91 NW. U. L. REV. 500, 567-69 (1997) (arguing that state legislatures were, and are, better able to hold senators accountable than the people at large);
74. Sean Gailmard & Jeffery A. Jenkins, Agency Problems and Electoral Institutions: The 17th Amendment and Representation in the U.S. Senate 1-2 (Feb. 2008), http://www.gmu.edu/departments/economics/bcaplan/jenkins.pdf (arguing that by doing away with "the informed selection and monitoring of U.S. Senators by relative political experts, [namely] state legislators," the Seventeenth Amendment decreased the Senate's standard of accountability).