The Pitfalls of Direct Democracy

Some states have mechanisms in which the electorate takes on the role of the legislature, passing laws or amending the state’s constitution with a simple majority vote. On November 15, Mississippi tried to wiggle into its constitution an amendment that would have established legal personhood at the time of conception. The amendment was a thinly-veiled attempt to outlaw abortion by granting a blastocyst the same rights as the rest of us, effectively making abortion — and many other forms of contraception — a crime.

Fortunately, Mississippi voters saw through the hooey and handily defeated the initiative. Other states, however, have not been so lucky, California among them.

California’s voter initiative system was cited by former California Supreme Court Chief Justice Ronald M. George as the reason for our state government being “dysfunctional.” Chief Justice George wasn’t far off. It’s thanks to the voter initiative system that we have the notorious Proposition 8, a constitutional amendment that actually takes away a right that people already had. It’s thanks to voter initiatives that the state is in a fiscal crisis, with no way to raise new tax revenue. Anti-tax pioneer Howard Jarvis got Proposition 13 on the ballot in 1978, successfully preventing the state legislature from increasing ad valorem property taxes or raising state income tax rates without a two-thirds majority.

It’s tempting to take an outcome-determinative approach to voter initiatives. Obviously, it’s terrific when the voters approve something with which I agree (like Ohio’s anti-union law, rejected the same day as Mississippi’s proposed amendment) and deplorable when voters approve something with which I disagree.

But on the whole, is direct democracy really better? In Federalist #10, Madison argued that a republic of elected delegates was better than a direct democracy because it protected the interests of the minority: “Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the People, will be more consonant to the public good, than if pronounced by the People themselves, convened for the purpose.”

Of course, Madison was not so naive as to think that delegates would exercise their power with the innocent beneficence of Barney and Friends. Nevertheless, in evaluating the pros and cons of each method, republics “are more favorable to the election of proper guardians of the public weal.”

The freedom to choose also involves the freedom to choose poorly. But does that mean it should? There are easy ways around this problem, such as requiring heightened majorities for amending a state’s constitution or for passing any initiatives that would adversely affect the state budget, either through a decrease in tax revenue or an increase in spending. Maybe an absolute prohibition on voter initiatives that adversely affect the rights of a particular group? If one reason for having a legislature at all is to protect the minority from the tyranny of the majority, the least we could do is find some way to prevent the majority from skirting the legislature when it wants to eliminate people’s rights.