Abstract: How Should States Protect Individual Liberties? An Evaluation of the Comparative Efficacy of Judicial Federalism and Direct Democracy at Protecting Individual Liberties in Oregon

Both direct democracy (specifically the initiative and referendum systems) and the doctrine of New Judicial Federalism arose in the United States as progressive attempts at, in part, providing more protections for individual rights.[i] However, each strategy has been critiqued, both generally and specifically, with regards to its particular progressive goal of protecting individual rights.[ii][iii][iv]

The initiative and referendum systems, in which individual citizens are entrusted with the power to vote on laws directly, began to be adopted by the American states in the early 20th century as a populist mechanism for controlling the perceived “elite” and “corrupt” political class, and to provide for protections of the common citizen.[v] In the 1970s, New Judicial Federalism emerged as a prominent legal theory in the various state high courts, promulgated by the progressive Justice William Brennan.[vi] This theory called for state courts to interpret state constitutional provisions that were similar to federal provisions as more protective than their federal counterparts, thus providing states a way independently to provide more protections of individual rights.[vii]

Oregon, my home state, has been particularly central to both of these efforts. It was one of the first adopters of the initiative and referendum system, and Oregon professor and judge Hans A. Linde was an instrumental force in developing and promoting the theory of New Judicial Federalism.[viii]

Professors Porter and Tarr, in their research on New Judicial Federalism, state that “research [in this field] should incorporate a historical focus” and that “research on particular state courts may yield greater insight than broad comparative studies.”[ix] My research would seek to do just that: use Oregon (because of its centrality to the development of both the initiative and referendum, and to the doctrine of New Judicial Federalism) as a specific case in order to make inferences about the effectiveness of direct democracy and New Judicial Federalism in protecting individual rights.

I will conduct my research over the summer of 2017 in Portland, Oregon. There I will have access to the Oregon Historical Society’s resources, along with those of the PSU Library. I will conduct my research over a period of seven weeks, the first four of which will be devoted to reading over the existing literature on the history of direct democracy and judicial federalism in Oregon. I will consult law review articles, in addition to other sources (like Oregon government records detailing court decisions and initiative and referendum results). I will then spend the last three weeks writing and editing my final project, an academic paper that summarizes the literature on the topic, and which presents my evaluation.

[i] Rex Armstrong, “State Court Federalism,” Valparaiso University Law Review 30 (1996): 493-495.

[ii] James A. Gardner, “The Failed Discourse of State Constitutionalism,” Michigan Law Review 90 (1992): 761-867.

This provides a general argument against New Judicial Federalism, specifically.

[iii] Hans A. Linde, “When Initiative Lawmaking Is Not ‘Republican Government’: The Campaign Against Homosexuality,” Oregon Law Review 72 (1993): 19-45.

This gives a specific example in which the initiative showed a danger of failure, with regards to protecting a progressive sense of individual rights.

[iv] Cornelia Porter and G. Alan Tarr, “The New Judicial Federalism and the Ohio Supreme Court: Anatomy of a Failure,” Ohio State Law Journal 45 (1984): 143-159.

This gives examples of the failure of New Judicial Federalism to protect individual rights in Ohio.

[v] Dominic D. Wells, “Dynamics of Direct Democracy and Voter Turnout,” In Why Don’t Americans Vote? Causes and Consequences, edited by Bridget A. King and Kathleen Hale, Santa Barbara, CA: ABC-CLIO, 2016. 136.

[vi] William J. Brennan Jr. “State Constitutions and the Protection of Individual Rights.” Harvard Law Review 90 (1977): 489-504.

[vii] Armstrong, “State Court Federalism,” 496.

Armstrong gives the textbook example of the California Supreme Court’s decision in People v. Anderson (1972), in which the Court determined that California’s “cruel and unusual punishment” provision, although similar to the federal provision, was actually more protective, and thus outlawed the death penalty in California.

[viii] Ibid., 493.

[ix] Porter and Tarr, “Anatomy of a Failure,” 158.