Direct Democracy and the Courts

Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders - the people, through direct democracy, and the courts. Now available in nearly half the states, direct democracy has surged in recent decades. Through ballot measures, voters have slashed taxes, mandated government spending, imposed term limits on elected officials, enacted campaign finance reform, barred affirmative action, banned same-sex marriage, and adopted many other controversial laws. In several states, citizens now bypass legislatures to make the most important policy decisions. However, the 'people's rule' is not absolute. This book demonstrates that courts have used an expanding power of judicial review to invalidate citizen-enacted laws at remarkably high rates. The resulting conflict between the people and the courts threatens to produce a popular backlash against judges and raises profound questions about the proper scope of popular sovereignty and judicial power in a constitutional system.

Table of Contents:
Introduction: a clash of rising powers: Part I. The Quest for Majority Rule: 1. The epic debate; 2. Direct democracy gathers force; Part II. Countering the Majority: 3. The counter-majoritarian power; 4. The courts at work; 5. Conflicts over rights; 6. Conflicts over powers; Part III. The Majority Strikes Back: 7. The people's check on the courts; Conclusion: a new constitutional equilibrium; Appendix.

About the Author :
Kenneth P. Miller is associate professor of Government at Claremont McKenna College in California. He holds a B.A. from Pomona College, a J.D. from Harvard Law School, and a Ph.D. from the University of California at Berkeley. His most recent publication is a volume co-edited with Frédérick Douzet and Thad Kousser titled The New Political Geography of California (2008). He has published articles on topics including the initiative process, the recall of California governor Gray Davis, and the federal Voting Rights Act. He has also served as a political analyst in various media outlets, including National Public Radio, BBC World Service Radio, the Los Angeles Times, and the San Francisco Chronicle.

Review :
'Miller's Direct Democracy and the Courts is a probing, well-researched, instructive, and much-needed assessment of the new politics pitting direct democracy initiative activists against the often countervailing forces of state and federal courts.' Thomas E. Cronin, Colorado College and author of Direct Democracy 'Courts play an increasingly central role in initiative politics, at both the qualification and post-election stages of the process. Initiative activists frequently bemoan this development and initiative critics generally welcome it, but outside of law reviews there has been depressingly little scholarly attention paid to it. Finally, with the publication of Ken Miller's book, we at last have a careful empirical study of the relationship between courts and direct democracy. This original and gracefully written book deserves to be widely read not only by scholars but by all citizens who live in states blessed (or cursed) with the initiative process.' Richard Ellis, Willamette University 'I think this is going to be the standard work on the relationship between the judiciary and direct democracy for a long time to come. Miller combines careful scholarship of legal issues and the judiciary with an impressive understanding of initiative politics – it is a fine piece of scholarship.' Shaun Bowler, University of California, Riverside 'Direct Democracy and the Courts is a timely and important contribution, unveiling the inherent tension between popular sovereignty as expressed by citizen lawmakers and the counter-majoritarian check of the judiciary. Scholars – as well as activists battling over ballot initiatives, such as California's Proposition 8 and other gay marriage measures – would be wise to read Miller's crisply reasoned and well-documented book.' Daniel A. Smith, University of Florida and author of Tax Crusaders and the Politics of Direct Democracy and Educated by Initiative