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Upcoming Symposium on Direct Democracy and State Constitutionalism, Featuring Judge Jeff Sutton

James Madison is famous for many things, but chief among them was his distaste of direct democracy. Madison believed that popular sovereignty was best realized through representative government, and that direct democracy enabled majority faction, fueled destructive populism, and empowered self-interested demagogues. Indeed, in Federalist 55, Madison (or perhaps Hamilton) quipped that “had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.” This mindset dominated the 1787 convention in Philadelphia. In designing the federal government, the Founders explicitly rejected institutions of direct democracy and prioritized systems of representation.

Viewed through this lens, contemporary state constitutions appear silly and defunct. From California to Massachusetts, state constitutions have incorporated various forms of direct democracy that can undermine sound governance, short-circuit representative deliberation, and enable impassioned popular majorities. In at least sixteen states, for example, citizens can propose and ratify constitutional amendment with nominal public deliberation and minimal involvement by state government. In those states, the initiative has been used to target vulnerable political minorities, micro-manage state fiscal policy, and even entrench regulations for the treatment of pregnant pigs. As Alan Tarr has suggested, Madison would surely “roll over in his grave” if he could see the nature of constitutionalism in many states today.

But contemporary problems in state constitutionalism are more sophisticated than this Madisonian caricature might suggest. The states didn’t end up here by accident. From the outset, state constitutionalists were skeptical of Madison’s faith in representative government. Scarred by their abusive English governors and corrupt legislative assemblies, early state constitutionalists viewed representation as separating the people from their rulers, producing a cohort of political elites, and increasing the likelihood that government would fail the people. Of course, it was not practical for the people to govern themselves en masse, but early state constitutionalists viewed representation as a necessary evil to be handled with great caution. It had to be carefully monitored. Most importantly, it had to be subject to direct popular intervention to correct for inevitable corruption and recalcitrance.

Contemporary mechanisms of direct democracy such as the initiative, referendum, and recall (IR&R) are an outgrowth of this alternative approach to constitutional design. Indeed, from Founding state constitutions have been built to enhance popular control over government. Early forms of direct democracy included annual elections for all legislators, the right of constituents to “instruct” representatives, large legislative assemblies with small electoral districts, and even intervening legislative elections before statutes could take effect. Perhaps the greatest innovation of state constitutional theory was the state constitutional convention, which requires a statewide referendum to call the convention; followed by a special election to select delegates and another referendum to ratify proposed reforms.

The IR&R are a continuation of this tradition. They represent a thoughtful alternative to constitutional design that deserves more careful consideration; especially today where partisan gerrymandering and staunch partisanship can create significant misalignment between intra-state majorities and state government outputs. Indeed, the IR&R sprung from a time with many similarities to our present circumstances. The IR&R gained popularity during the Progressive Era, when state government was widely believed to be captured by party bosses and wealthy private interests. In state after state, popular social reforms (such as improved working conditions and collective bargaining rights) were blocked by state legislatures and courts. Progressives endorsed the IR&R as efficient methods for freeing government policy from capture and realigning it with popular preferences. This history suggests a useful alternative perspective on direct democracy that challenges Madison’s critique. On this view, direct democracy can operate to improve democracy when government has been captured.

But even this perspective likely oversimplifies the nature of direct democracy in the states. Notwithstanding a sound theoretical basis for introducing direct democracy, the states have encountered a host of problems with effectively implementing it. The initiative, for example, has been turned on its head in many states as well-financed special interests have industrialized the process and hijacked it for their own gain. Indeed, in 2020, statewide ballot campaigns reported $1.24 billion in contributions and $1.22 million in spending. Even sitting government officials sometimes utilize the initiative to entrench their policy agenda and undermine popular efforts to correct government outputs. And state governments have developed a variety of nuanced countermeasures to undermine and limit initiatives approved by voters; such as refusing to fund programs adopted by initiative, failing to adequately staff agencies tasked with implementing an initiative, and adopting legislation that effectively undermines an initiative.

Here, in our home state of Nebraska, many of these issues have played out over the years. In 1982, citizens adopted by initiative one of country’s toughest anti-corporate farming laws. The initiative was the result of long-standing reluctance by the legislature and popular perception that the legislature was unduly influenced by corporate farming interests. In the early 2000s, Nebraska witnessed a significant influx of out-of-state funds and political entrepreneurship in support of an anti-affirmative action amendment and a pre-Obergefell ban on same-sex marriage. Most recently, citizens have taken to the initiative in response to legislative inaction regarding Medicaid expansion, gambling, and medical marijuana. The gambling and marijuana initiatives introduced a new complexity because various groups challenged the initiatives in court for violating various procedural requirements. The Nebraska Supreme Court ultimately removed the marijuana initiative from the ballot for violating the state’s single-subject rule; overturning a decision by the Secretary of State and effectively granting a victory to the legislature and governor who had mostly opposed the initiative. At the same time, the court permitted the gambling initiative on the ballot, overturning a decision by the Secretary of State withholding it on single-subject grounds.

Nebraska’s experience illustrates the need for more thoughtful and rigorous investigation into the structures, performance, and theories of direct democracy in the sates. To that end, the University of Nebraska College of Law has convened a keynote address on November 12 and symposium on November 13. On November 12, Judge Sutton will discuss his new book, Who Decides? States as Laboratories of Constitutional Experimentation, which has been the subject of a book symposium here. Nebraska is obviously an example of our state constitutional pluralism. On November 13, Judge Sutton will join a group of leading scholars, practitioners, and policymakers as we evaluate direct democracy within the state constitutional order. Proceeding from theory to implementation, to the practicalities of actual constitutional change in Nebraska, this symposium may bring scholarship to the voting booth. The event will be viewable online and the Nebraska Law Review will publish a series of papers from the event. More information is available here, including registration.

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