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Direct democracy

By Jack M. Balkin

A fundamental debate, both in theory and practice, concerns the relative merits of "representative democracy" as against some form of "direct democracy," seen most vividly in the United States in the practices of many American states that allow some versions of public referenda (or initiatives and referenda) even with regard to amending the state constitution. My own view, with appropriate ambivalence, is that our own system is too Madisonian in its exclusive embrace of only representative democracy and that some infusion of direct democracy would be helpful. I do, of course, recognize that some--how many is, of course, a central question--execises of direct democracy are scarcely encouraging. The most recent example in the United States is the overturning by a slender majority of Maine voters of a law passed by the state legislature (and signed by the governor) permitting same-sex marriage, which, of course, followed on the passage in California of Proposition 8, overturning a California Supreme Court decision to that affect.

So I was not happy to read this afternoon of a new constitutional amendment added to the Swiss Constitution by popular referendum that bans the further building of minarets. This presumably overrides the guarantee of freedom of religion in the present Swiss Constitution. I note, incidentally, that Switzerland is probably the most important example of "direct democracy" in the world today, given the frequency of referenda. And, generally at least, one rarely places Switzerland and California in the same cohort of "reckless" polities.

Obviously, many countries and states have managed to pass egregious legislation (or constitutional amendments) without going through the procedures of direct democracy. That being said, this doesn't bode well for those of us who identify more with Jefferson (and Lincoln) than with Madison regarding the willingness to put ultimate trust in government by the people.

Full post as published by Balkinization on November 29, 2009 (boomark / email).