Distrust of Democracy

The current rediscovery of state constitutions has had a singular and curious feature: it has been focused largely on state constitutional provisions that are analogous, if not identical, to provisions of the United States Constitution. Scholars and jurists have devoted their attention to state protections of speech, state equal protection clauses, state privileges against self-incrimination, and state proscriptions of cruel and unusual punishments, and have developed interpretations of these texts that diverge from those adopted by the United States Supreme Court in construing comparable federal constitutional provisions. These attempts to play state variations on federal constitutional themes have not been matched by a similar degree of interest in those elements of state constitutions that are not paralleled in the federal constitution. And yet many state constitutions make extensive departures from the federal model, particularly in the design of the structure and processes of government. A striking innovation found in many state constitutions is in the role of citizens in the process of legislation. The United States has a representative government: citizens elect representatives who then run the government. The formal lawmaking role of the citizens is exhausted by the election of representatives. By contrast, virtually every state provides for some measure of direct citizen involvement in lawmaking. Nearly all states require popular approval of constitutional amendments. Most state constitutions require voter approval before the state may issue debt. Half the states allow a relatively small group of citizens to suspend the operation of any new law pending its submission to and approval by voters in a referendum. And almost two dozen states authorize citizens to initiate legislation directly, that is, to draft proposals that are then placed on the ballot and, if approved by the electorate, become law