Direct Democracy: The Right of the People to Make Fools of Themselves; The Use and Abuse of Initiative and Referendum, A Local Government Perspective

The Framers of the United States Constitution did not embrace direct, populist democracy. They rejected the Swiss model of direct legislation\u27 and chose a system of representative-republican, not democratic-government that would, as James Madison wrote, enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial [partisan] considerations. Representative democracy presumes that an informed electorate will choose wise legislators. Direct democracy, by extension, demands that citizens themselves demonstrate wisdom enough to discern the true interest of their country as opposed to their self-interest, and that they love justice enough to eschew mere partisanism. One form of direct democracy is direct legislation-legislation by initiative and referendum. Today, direct legislation is increasingly popular-and increasingly destructive as serious proposals have been made to adopt and implement it at the federal level. This Article addresses the problems of direct legislation, focusing on two general themes. First, it briefly traces the history of the initiative and referendum in the United States, addressing problems with the process, particularly with the local-government exercise of the process, and proposing reforms that might improve the quality of citizen-made legislation. Second, the Article examines some fundamental causes for and difficulties with the use of direct legislation. The experience of Whatcom County, Washington, is considered throughout as an illustrative case study of the enthusiasm for and the failure of direct democracy. The experience of other jurisdictions is also considered and compared to this local experience