Oregon Law Review : Vol. 87 No. 3, p867-906 : Direct Democracy, the Guaranty Clause, and the Politics of the “Political Question” Doctrine: Revisiting Pacific Telephone
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Date
2008
Authors
Williams, Robert F.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
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.
Description
46 p.
Keywords
Direct democracy