Judicial Approaches To Direct Democracy

Judicial Review and the Legislative Process; Relevant? The importance of judicial review is uncontested today. That the court system has a role in reviewing the actions of other governmental bodies and ensuring their constitutionality is imperative in the system of checks and balances between the three branches of government in the United States. The question remains, however, as to how far should this judicial power extend. When reviewing a piece of legislation, should the courts stop by merely deciding the constitutionality of the legal writing itself? Should it consider the intentions of the writers? The intention of the legislative voters? When applying these questions to pieces of legislation that originate not with the legislators but rather with the public, the answers become even more elusive. In Judicial Approaches to Direct Democracy,
It is implied then that the majority does not always know what is best for it. It is therefore also true to say that the courts “save voters from themselves” (Ellis 175). It should do these “saving” actions both when considering representative legislation and direct legislation. When considering a piece of legislation that originates with the legislation, however, we would never hear the court stating that the voters “were not adequately informed” (174) about what the proposition contained. As expressions like this appear quite naturally in court decisions on ballot measures we see that the court applies a different, more suspicious standard toward direct legislation. In face of the judiciary being the only line of defense put forth in the initiative process, perhaps the court should be more suspicious, however, this does not seem as the best solution. A more encompassing one would be to change some of the institutions of direct democracy in order to assure both judicial defense and guarantee that the judiciary would not overstep its