How Might Direct Democracy Affect Individual Liberties?

By 1977, Justice Brennan realized that the Supreme Court moving away from the ideals of the Warren Court, and that it was retracting some of its former protections on civil liberties. Justice Brennan also noticed that the states were beginning to interpret their own constitutions’ protections more broadly than the new federal standard, in an attempt to fill the new void.[1]

The trend that Brennan observed and predicted (and likely inspired) has continued into the present day, and has been deemed New Judicial Federalism. Under the doctrine of New Judicial Federalism, states are free and encouraged to interpret their constitutions’ clauses differently than comparable (or even the exact same) clauses in the federal Constitution. Although this doesn’t sound like a large change, the implications have been huge. Rarely before had attorneys made separate claims under a state constitution – but after New Judicial Federalism, the state constitutions mattered.

What implications does this have for direct democracy? Even though it is never used at the federal level, most states use direct democracy to amend their constitutions. Now that state constitutions are being used more regularly in court, direct democracy has a greater chance to affect legal policy. Specifically, now that state constitutions are being relied on to protect civil liberties, direct democracy can be used to great effect to provide more civil liberties protections.

However, there’s a downside. Just as voters using the initiative and referendum may expand individual liberties by modifying their state constitutions to be more protective than the federal standard, voters may also use these systems to modify their state constitutions so that they are less protective. Although state constitutions cannot technically be less protective of the peoples’ liberties than the federal standard (or at least, if they are less protective, it is rendered moot by the federal standards incorporated against the states under the Fourteenth Amendment), this can still be problematic.

If the Supreme Court has truly left a void in the space of civil liberties protections to fill, then conforming to the federal standard won’t be enough. According to Justice Brennan’s logic, if a state’s citizenry use direct democracy to modify its constitution so that it only minimally protects civil liberties the way the federal government does, then the state has failed its duty to protect those liberties.

Yet the threat that the initiative and referendum poses is deeper than that, since it appears that citizens exercising direct democracy may have incentives to abridge the rights of minorities, in doing so creating a “tyranny of the majority.” In her examination of civil rights initiatives and referenda between 1959 and 1993, Gamble found that of the 74 ballot measures concerning civil rights between those years, “92% actively sought to restrict the rights of minorities.”[2] According to Gamble, the “68 ‘restrictive’ measures that citizens voted on had a pass rate of 78%, as opposed to the pass rate of 33% for all substantive measures.”[3]

Of course, civil rights and civil liberties are not the same thing. However, one might reasonably assume that a majority willing to strip minorities of their “positive” civil rights might also be willing to strip them of their “negative” civil liberties. Perhaps direct democracy is not just the people’s check against the government, but also the majority’s weapon to abuse the minority.

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

[2] Barbara S. Gamble, “Putting Civil Rights to a Popular Vote,” American Journal of Political Science 41 (1997): 245-269.

[3] Ibid.