Who Directs Democracy?

Lawmaking by direct democracy has become an increasingly important part of the legislative process at the state level. Voters in twenty-six states and the District of Columbia have the right to propose legislation through the initiative process, and voters in all states except Delaware must vote to approve changes to their state constitutions. While the mechanisms of direct democracy are not new-many date to populist and progressive movements at the turn of the century-they are being used with greater frequency. During this decade, the number of proposed initiatives and referenda are projected to exceed the number proposed at the height of the progressive era (1910-19) by nearly one hundred, and ore are expected to pass during the 1990s than ever before.

The appeal of popular lawmaking is no surprise given the growing public disillusionment with elected representatives. For example, in 1992, as part of a presidential campaign fueled by voter alienation, Ross Perot proposed that national leaders seek public input through frequent electronic town meetings and that a national referendum be required to adopt important tax and budget legislation. At the same time that supporters of federal and state term limits seek to transform legislatures into the domain of citizen-legislators, eligible citizens already wield direct legislative power through their use of the initiative and the referendum. As Thomas Cronin observes, direct democracy is attractive to some reformers because of the "idealistic notion that populist democracy devices can make every citizen a citizen-legislator and move us closer to political and egalitarian democracy."

In this essay, I dispute one of the central claims of supporters of direct democracy that such lawmaking is freer from special interest domination than lawmaking by legislatures. I also challenge the supporters’ claim that the availability of the initiative and the referendum provides a desirable safeguard to empower ordinary citizens, who believe that their voices are often unheard by elected representatives. In fact, special interests, not ordinary citizens, generally frame the terms of the debate concerning ballot measures. Special interests have a comparative advantage in determining both what questions are placed on the ballot for popular decision and how those questions are drafted.

I am not arguing that special interests are more powerful in the context of direct democracy than in the halls of the state and national legislatures. Rather, I am merely suggesting that both forums may be susceptible to interest group pressures, although the specific groups that dominate each forum may differ, and that neither structure may facilitate the enactment of legislation that accurately reflects the popular will. Traditional lawmaking and direct lawmaking are different mechanisms used to aggregate and shape individual preferences, which may lead to different outcomes, but both are influenced disproportionately by those groups that can express their preferences more loudly or more clearly than other groups or individuals.

The judicial branch also plays a role in determining the direction of direct democracy. judges must interpret popularly-enacted laws, which are often unclear in meaning or scope. Although most judges faced with questions concerning the interpretation of direct legislation claim to be following the directions of the voters, it seems unlikely that judges can accurately discern the "popular intent" or even that such a clear, monolithic intent actually exists. If intentionalism is not a legitimate interpretive method in this context, judges should rely on other techniques to decide the meaning of contested language. Very little scholarly attention has been directed to the appropriate method of interpreting laws passed by direct democracy. At the conclusion of this essay, I offer some preliminary thoughts on this provocative question and on the role courts might play in ameliorating the deliberative shortcomings of direct democracy and in reducing the distorting influence of interest groups in the process.

Evaluating Direct Democracy: A Response

Professors Marci Hamilton and Elizabeth Garrett address different questions about how to deal with direct democracy. Professor Hamilton asks whether direct democracy is a good idea, and concludes that "the tide of direct democracy should be stemmed." Professor Garrett focuses a bit more narrowly, arguing that direct democracy is influenced and shaped by the same interest groups that shape legislation. She also c6nsiders how a court should approach interpreting directly enacted legislation.

Although Professor Hamilton's result---direct democracy "should be stemmed"-may be correct, her methodology is not. Professor Hamilton argues that the framers of the U.S. Constitution set up a system designed to avoid tyranny by decentralizing power. The framers spread power between Congress, President, and Courts; between state and federal governments; between church and state; and between authors and publishers. The framers believed that spreading power among various social organs would naturally check power, and mob rule-otherwise known as the "tyranny of the majority"-would be defeated. Professor Hamilton invokes the images of a clock and of a solar system to animate these ideas, but I think they are not much different from the conceptions usually referred to as "checks and balances." The net result of all of these checks and balances should include, at least, a slow, deliberate, status quo-oriented government. Within this framework, legislators become trustees, charged with weighing and balancing various aspects of the public good when deciding how to vote on legislation and do other legislative tasks. In contrast, according to Professor Hamilton, a voter in a booth need merely ask "what's in it for me?" Because direct democracy thus represents such a wide departure from the framers' plan for our federal and state governments, it should be abandoned.

Professor Hamilton's methodology fails because she compares two different things. She contrasts the aspirational vision of democratic government as framed by our Constitution with the real politics of voters in booths. If one were to invoke the aspirational vision of direct democracy, it would include actively interested citizen voters, informing themselves of the arguments about ballot propositions, engaging in spirited debates, and coming to well-reasoned decisions about how to vote prior to entering the voting booth. The long period of time between qualifying an initiative for the ballot would allow for a full reflective equilibrium, both on the level of the individual voter and within interest groups. The result of the vote should thus define the public's vision on the subject of the initiative.

Although comparing the aspirational ideal of representative government with the analogous ideal for direct democracy might illuminate the relative merits of the ideal conceptions, and might also represent a starting point for evaluating direct democracy, it does little to help us choose whether to value existing forms of direct democracy.

I contend that evaluating direct democracy requires at least comparing the available theory and evidence on the actual operation of representative legislation with the theory and evidence on the actual operation of direct democracy. Such theory and evidence will naturally bear on both the process and out- comes of legislation and direct democracy.

In short, I agree with Professor Garrett when she writes:

The purpose of my small contribution is to emphasize the nature of some of the comparisons that must be made, and to introduce a bit of the learning from political science into the evaluation. I will start by giving a thumbnail sketch of what is known about representative legislation, and then do the same for direct democracy.

In a speech before the House of Commons on November 11, 1947, Winston Churchill repeated what had long since become a common opinion among democrats. "No one pretends," Churchill observed, "that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time." Although Churchill's claim has remained entrenched, it is only partly true. Democracy is certainly better than its rivals. It is also true that the serious faults which democracies exhibit worldwide provide evidence that it may be a bad form of government. But that it must be a bad form is doubtful. I believe that an analysis of political thought from America's founding era can justify the doubt and thus raise the hope that democratic politics can exhibit a high degree of excellence.

Although democracies have existed at various times in human history-for example, in medieval Iceland and Switzerland-there have been only two important periods of democracy. The first began in Greece toward the end of the sixth century B.C. It lasted about two centuries. The second began in America in the second half of the eighteenth century. So far it has also lasted about two centuries. The American revolutionists took history seriously and tried to learn from past errors. What is surprising is their hostility to the Greek experiment. According to Alexander Hamilton, "[tlhe ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure deformity: When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity." Modern scholarship has not ratified Hamilton's sweeping and harsh judgment. Athenian democracy, for example, was very much concerned with liberty and equality. Yet Hamilton's hostility was not to democracy itself, but to mob rule; in fact, he believed the best form of government to be a "representative democracy." Thomas Jefferson also stressed representation. The ancient Greeks, Jefferson said, "knew no medium between a democracy . . . and an abandonment of themselves to an aristocracy, or a tyranny independent of the people. . . . The full experiment of a government democratical, but representative, was and is still reserved for us. . . . The introduction of this new principle of representative democracy has rendered useless almost everything written before on the structure of government."

The problem of achieving representation in practice, however, was often formidable. As James Madison observed in his notes of the Federal Convention: "if the opinions of the people were to be our guide, it would be difficult to say what course we ought to take. No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here." So what could be done? One option was to make legislators statistically representative with respect to profession. The Founders agreed with Hamilton that this option was "altogether visionary." There are too many professions and free elections would not produce such outcomes. Instead a legal model was adopted: as a lawyer represents a client, so government officials represent the people. In the words of John Adams: "Rulers are no more than attorneys, agents, and trustees, for the people ...

Yet the study of ancient democracies convinced the Founders that rulers should not represent all the opinions of the people, but only what Jefferson called the "common reason of society" and Madison "the cool and deliberate sense of the community."" The Founders' intention can be understood by looking at the individual. Individuals know that they will have weak moments in the future. Hence they can take a variety of self-paternalistic actions to guard against those moments. Thus, a man might authorize friends to prevent him-with force if necessary-from driving home if he gets drunk at a party. A democratic people might likewise authorize the government to prevent the people-with force if necessary-from lynching a person who has not received a fair trial. A representative democracy, as understood by the Founders, is structured to insure the triumph, in political matters, of critical reason over irrational desire. "[Ilt is the reason of the public alone," Madison maintained, "that ought to control and regulate the government. The passions ought to be controlled and regulated by the government."

Yet it is a mistake to think that representatives need only use their reason and that, since reason is universal, their actions will automatically be consistent with the reason of the people. It is a mistake because reason is not always universal in the requisite sense. "When men exercise their reason coolly and freely, on a variety of distinct questions," Madison points out, "they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same." Madison had no answer to the question of how the reason of the public, which he believed should prevail, could even be known let alone triumph on those occasions when it was different from the reason of the rulers. Jefferson, however, did. In a letter to John Adams, he proposed that Virginia be divided into small political units called wards. Then a "general call of ward-meetings . . . on the same day that the state would at any time produce the genuine sense of the people on any required point, and would enable the state to act in mass, as your people have so often done, and with so much effect, by their town meetings." Jefferson considered wards so important that he called them the "most admirable of all human contrivances in government." They were the means by which the common reason of society would be an effective remedy to the ineptitude and corruption that are so characteristic of political life.

Virginia never implemented a system of wards. In a real sense, Jefferson's idea was ahead of its time because its development requires a host of disciplines, such as sampling theory, and a host of technologies, such as telecommunications, which did not then exist. The proposal is perhaps the first ever made for what is now called teledemocracy (literally, democracy at a distance). In teledemocracy the people do not assemble en masse; only their views, so to say, are assembled into a collective decision. In Jeffersonian teledemocracy those views must be the product of deliberation conducted in small groups. Jefferson saw that the self-interest of rulers corrupts the representative process of democratic government. As a remedy he proposed a political mechanism which would express the common reason of the people and thereby check or destroy the power of rulers who are unfaithful to that reason. In spite of Jefferson's enthusiastic advocacy, and in spite of his status as one of the greatest democrats of all time, his idea has received little attention either as a theory or as a practical proposal for political reform.

I will attempt to remedy that neglect by providing a sketch of a deliberative teledemocracy in the spirit of Jefferson. My aim is the comparatively modest one of showing that Jeffersonian teledemocracy might be a fruitful idea. To demonstrate that it is actually fruitful is beyond my competence and would, in any case, require many scholars both to articulate theory and perform political experiments. Since a fruitful idea is one that illuminates many areas, I must of necessity refer to a large variety of topics. For this I apologize in advance, and hope others will pursue what is here only an incomplete summary.

Articles

Race and Gender Exclusivity in Legal Scholarship

In 1992 the American Association of Law Schools recommended that new forms of scholarship be given the same consideration for promotion and tenure as "more traditional" scholarship. Traditional scholarship includes vocational, doctrinal, and interdisciplinary writing, and aspires to be objective and analytical, and to cover all relevant arguments. As the dominant model, doctrinal scholarship is the progeny of Christopher Columbus Langdell's conversion of legal education from vocational training to law as a science and profession. The law as a science thesis assumes that decisions can be analyzed and distilled into general principles for guidance in problem solving. The traditional doctrinal article is a written expression of the scientific technique in the form of a research paper on a specific problem that synthesizes cases and statutes to produce a recommended solution.

Non-traditional scholarship is the overflow, anything from storytelling to poetry. Flourishing within the non-traditional category is the race-gender genre-a submarket of writers dedicated to exposing the perceived injustices of the legal establishment. Their style is purposely subjective, emotional, empathetic, openly "oppositional," and ideological. Moreover, the genre's race and gender ideology ferments the notion of "exclusivity"-the assumption that the group's culture and historical experience produces a distinctive and unique type of scholarship. Uniqueness creates barriers around the scholarship, leaving race and gender scholars with exclusive rights to the production, interpretation, and evaluation of their work.

The race-gender crusade considers exclusivity to be the product of alienation and oppression. In addition, the "voice" assumption posits that there are fundamental differences of perception between outsider females and people of color and insider white males." They contrast the dominant "voice" of the liberal white mate establishment (the "insiders") with the subordinate "voice" of the people of color and females (the "outsiders"). Outsider "experiences of the same circumstances may be very, very different" from insider perceptions and "the same symbol may mean different things to each of us."' Moreover, insider and outsider categories evoke a range of conflicting secondary meanings. "Liberal white male" is associated with authoritarianism, hierarchy, rationalism, objectivism, individualism, and patriarchy. Race-gender writers attach negative connotations to these words; they describe an oppressive agenda.

The response to the oppression agenda comes in the secondary meaning of words associated with females and people of color: empathy, altruism, emotion, community, an ethic of caring, and nurturing. These words are, however, ignored or denigrated by the voice of the majoritarian liberal white male oppressors. The voice of the dominant insider trumps the marginalized voices of the outsider victims.

This sharp dichotomy has two consequences. First, outsiders assume that their work is excluded from mainstream establishment scholarship. "Legal scholarship remains one of the last vestiges of white supremacy in civilized intellectual circles." Secondly, outsiders have the obligation and right to exercise exclusive authority for producing and judging "their" scholarship."

The most resolute rationalization for exclusivity is based on essentialism which posits a distinct Black experience. To Professor Williams, essentialism is derived from slavery, which robbed Blacks of a sense of self. "The black slave experience was that of lost languages, cultures, tribal ties, kinship bonds, even of the power to procreate in the image of oneself and not that of an alien master."" Derrick Bell agrees and sees Blacks as permanent outcasts in an alien culture, a theme that he uses parables such as The Space Invaders to cultivate. A fleet of space ships suddenly appears to trade with what has become an economically besieged United States. The space invaders make a non- negotiable offer of gold and other critically needed supplies in exchange for all African Americans. The initial reaction is shock, then indignation-it is, after all, slave trading. After reflection, the offer becomes an "irresistible temptation," prompting the fast passage of a constitutional amendment to legalize the trade. "And just as the forced importation of those African ancestors had made the nation's wealth and productivity possible, so their forced exodus saved the country from the need to pay the price of its greed-based excess."

Comment: A Right to Talk Dirty?: Academic Freedom Values and Sexual Harassment in the University Classroom

Public universities today are becoming increasingly diverse while remaining committed both to academic freedom and equality. In theory at least, academic freedom and equality are compatible values that support a vision of the university as a community of scholars committed to the pursuit of truth, the ideals of democracy, and autonomous self-fulfillment. In practice, however, academic freedom and equality often appear to conflict when universities seek to limit classroom speech in order to create a hospitable learning environment for women. Attempts to prohibit hostile environment sexual harassment perpetrated in the university classroom highlight the educational and societal need to accommodate both academic freedom and equality. We should neither allow professors to invoke academic freedom to avoid the consequences of discrimination against women in the classroom, nor allow highly constrictive regulation of classroom speech in the name of nondiscrimination to destroy the important goals of academic freedom. So far, an effective compromise has been elusive.

When academic freedom has been challenged by hostile environment sexual harassment regulation of the classroom speech of university professors, the courts have failed to accommodate properly both the values of academic freedom and nondiscrimination. The courts' analysis has suffered from both an overly narrow conception of academic freedom and a misguided reliance on judicial precedents that reflect inapposite concerns.

Part I of this Comment examines the development and justifications for the courts' recognition of academic freedom as deserving of special protection under the First Amendment, concluding that apparent conflicts between academic freedom and equality must be reconciled by adopting the resolution that best preserves and fosters autonomy. Part II reviews the current judicial treatment of classroom speech and argues that cases concerning the government's limited rights to restrict the workplace speech of government employees and cases concerning the First Amendment rights of secondary school children should not be relied upon in cases concerning the classroom speech of state university professors because these cases fail to embrace a properly robust vision of academic freedom. With this background, Part III attempts to clarify the complex set of rights at stake when professors' speech creates a hostile environment in the classroom and addresses two recent cases where the classroom speech of university professors has allegedly created a sexually hostile educational environment. Then, in Part IV, the Comment will draw upon the autonomy-based understanding of academic freedom developed in Part I and the cautionary tales revealed in Part III to suggest an approach to these cases that will better accommodate and respect both academic freedom and equality.

Comment: Promoting the Arts by Dissolving the National Endowment for the Arts

The National Endowment for the Arts ("NEA") has become a battle-ground for the cultural war in the United States between conservatives and liberals. In the battle over funding for the arts, the conservative right continues to call for the abolition of the NEA. This call intensified when the courts thwarted attempts to stop the NEA from awarding grants to artists who, in the opinion of NEA foes, produce indecent work. Generally, liberals have supported the continued existence of the NEA as part of their general view that society is better off if individuals have broad and vigorous First Amendment rights. Both sides have taken a position on the NEA without necessarily considering what would be best to sustain excellence in arts in the United States.

This Comment argues that the NEA should be abolished because, given the desire of politicians to control the viewpoints promoted by government-funded art, the NEA is constitutionally suspect, if not altogether unconstitutional. The N]EA should also be abolished for the good of artistic excellence in America, especially post-modern, homoerotic, and other types of avant-garde art. The creators of the NEA feared that government funding for the arts would become government control of the arts. The recent politicization and polarization of NEA funding demonstrate that the NEA has realized its founders' worst fears. The proposed Fowler Amendment of 1989, an effort to stop the NEA from funding "indecent" art work, illustrates that the realm of arts funding is irrevocably infused with politics.

Furthermore, although the creators of the NEA specifically did not want the award of an NFA grant to be the imprimatur of government approval, today the awards exert powerful influence in the arts community. Artists and artistic institutions that receive NEA grants are regarded by private and corporate sponsors as more legitimate and hence more worthy of funding. As a result, artists who receive NEA grants are more likely to receive funding from other sources. This pattern of funding means that NEA grants are exerting a signaling effect- they signal to non-government sources of funding which art and artists the government has deemed worthy of support and approval. In this way, the NEA now operates contrary to the intentions motivating the creation of the endowment.

Section I of this Comment discusses the history of the NEA to demonstrate that its original purpose was to support a so-called objective, artistically excellent aesthetic. Section II will discuss the now famous Mapplethorpe/Serrano NEA funding controversy. This incident has demonstrated how the NEA funding process has been captured by politicians who will inevitably attempt to control the viewpoint of art through funding decisions. Such decisions are constitutionally suspect.

Section III will examine the challenges brought against legislative attempts to restrict the flow of NEA funds to art that promotes points of view. This examination will demonstrate the futility of any attempt to craft a constitutionally sound method of controlling NEA funding in the post-modern world. This is because, in the post-modem world, all art expresses a point of view. Finally, Section IV will make the case for the abolition of the NEA. It will conclude that the only solution that is both constitutionally sound and supportive of arts in the United States is the dissolution of the NEA; the alternatives are constitutionally suspect and stifle the progress of art beyond the modern period.

Comment: CERCLA’s Contribution to the Federal Brownfields Problem: A Proposal for Federal Reform

Hazardous waste laws, therefore, enacted to protect the environment, have stymied the remediation and redevelopment of America's urban environment while accelerating the destruction of America's wilderness. Needless to say, this ironic effect needs to be addressed. Federal reform of Superfund is required. This Comment explores solutions to the federal brownfields problem. Because there has been very little innovation in the way of brownfields reform at the federal level, but a considerable amount at the state level, the Comment investigates possible remedies to the federal brownfields problem by examining state brownfields reform programs. Using ideas uncovered in this investigation, the Comment proposes a "model brownfields statute to be imposed through legislation or regulations on a federal level.

Part I of this Comment provides background on CERCLA law, and describes the ways in which CERCLA contributes to the brownfields effect. Part II analyzes and compares a group of state brownfields statutes, in order to identify possible programs to include in a federal brownfields legislative or regulatory proposal. Finally, Part III examines the status of brownfields reforms that have been taken on a federal level. As will be shown, these reforms do not adequately ameliorate the federal brownfields effect. Accordingly, the end of Part III proposes an effective federal brownfields reform package.

Comment: Why Johnny’s Parents Can’t Read . . . Or Vote, Or Work, Or Participate: The National Literacy Crisis and a Proposal to Integrate Illiterate Adults into Mainstream American Society

What does it mean to be illiterate in American society today? Illiterates cannot register to vote in an election. They cannot help their children with homework. Illiterates cannot read instructions on a bottle of prescription medicine. They cannot understand the written details on a health insurance form. Illiterates cannot read the lease that they must sign to live in an apartment. They cannot manage checking accounts. They cannot read the notices that they receive from welfare offices or from the IRS. Illiterates cannot complete basic job application forms. They cannot travel freely. Illiterates do not know what rights they have, what deadlines and requirements they face, what options they might choose to exercise. In almost all facets of life, illiterates live a circumscribed existence.

The preceding profile paints a harrowing picture of life in America for illiterate adults. Confronted with a society that presupposes its citizens are literate, illiterate adults struggle to perform daily tasks that literate citizens take for granted. Lacking the reading and writing skills necessary both to become informed and to access the basic rights essential to citizenship, illiterate adults lead lives isolated and segregated from mainstream American society. Autonomy and personal independence often remain unattainable goals for illiterate adults because day-to-day survival requires help from relatives, friends, strangers on the street, store clerks, and fellow employees. Indeed, illiterate adults seem to lack the status of citizens in several meaningful senses of the word.

The status of illiterate adults in American society also raises a host of critical questions. What is the scope of the literacy crisis? What do we mean by the term "illiterate"? What is the relationship between illiteracy and other social, economic, and political factors? Why don't illiterate adults learn how to read and write? Why should Americans care about illiteracy at all?

Research provides no clear answers to these important questions. However, the results of the most recent national literacy survey do suggest that 90 million American adults cannot fully participate in society because of their limited literacy skills. The exclusion of illiterate adults from mainstream American life extracts significant costs on both the individuals affected and society as a whole. In addition, the isolation and segregation of such a large segment of the population raises fundamental questions concerning America's commitment to equality and to a principle of fairness.

This Comment proceeds from the basic premise that an extensive national literacy crisis presently exists in the United States, and that the severity of this crisis warrants immediate national action. Section I of this Comment will assess the scope and the reach of the literacy crisis. It will examine the magnitude of the literacy crisis; detail the costs and consequences associated with the crisis; and introduce the problems associated with the intergenerational illiteracy cycle. Section I concludes with a discussion of the empirical and normative consequences associated with choosing either a functional or a progressive definition of "literacy."

Section II of the Comment makes the case for national legislative action to remedy the literacy crisis. Section II will examine the rationales for supporting national legislative action to help illiterate adults; propose a statute designed to integrate illiterate adults into mainstream society through the use of reason- able accommodations; and offer a commentary on the proposed statute that serves as a guide to interpreting the statute. Finally, Section Hi of the Comment addresses several possible criticisms of the proposed statute.