Oregon Law Review : Vol. 87, No. 3 (2008)

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Oregon Law Review : Vol. 87 No. 3, p. 979-1024 : Direct Democracy, the Guaranty Clause, and the Politics of the “Political Question” Doctrine: Revisiting Pacific Telephone
(University of Oregon School of Law, 2008) Williams, Norman R.
In light of the widespread use of direct democracy in Oregon and elsewhere, this anniversary provides a good occasion to examine how direct democracy at the state and local levels became an accepted part of the American constitutional order. In this Article, I argue that the constitutionality of direct democracy has never received the thorough judicial consideration that the issue deserves. The Oregon Supreme Court, which validated the initiative and referendum, did so in a case that, significantly, did not involve an initiated or referred measure; it was decided on other, nonconstitutional grounds that obviated the need for the U.S Supreme Court to opine on the constitutionality of direct democracy. By the time that the validity of direct democracy reached the U.S. Supreme Court several years later, the heated political controversy surrounding the adoption of direct democracy in several western states induced the Court in Pacific Telephone to avoid reaching the merits of the question. The net result was to close the federal courts to constitutional challenges to direct democracy under the Guaranty Clause, a doctrine that has—erroneously in my view— remained in place ever since.