Standing Up for Direct Democracy: Who Can Be Empowered Under Article III to Defend Initiatives in Federal Court?

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Abstract

This Article analyzes whether and under what circumstances private
citizens, especially those who qualify initiatives for the ballot by drafting the
measures and gathering and presenting the requisite signatures (initiative
proponents), should be permitted to defend those initiatives in federal court,
consistent with Article III of the federal Constitution, when elected
representatives ordinarily to be relied upon to defend state laws decline to
defend. Professor Amar's analysis seeks to balance the legitimate instinct of
federal courts to keep their assertions of jurisdiction within constitutional
bounds, on the one hand, and the need for the people of states that want to
make use of initiatives to find ways to prevent elected officials (a distrust of
whom is often part of the motivation behind an initiative) from effectively
killing initiatives by failing to defend in federal court, on the other. Drawing
on the essential rationale underlying the initiative device and theoretical and
pragmatic foundations of federal constitutional standing doctrine, Professor
Amar argues that the key question in cases involving standing by initiative
proponents is not, as the Supreme Court suggested in Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013), whether the people of a state have "control"
over the proponents, but rather whether the people can be said to have
"assented" to the proponents as representatives of the electorate. He thus
concludes that the Supreme Court reached the right result in the
Hollingsworth dispute, but for the wrong reasons.
Original languageEnglish (US)
Pages (from-to)473-504
JournalUC Davis Law Review
Volume48
StatePublished - 2014

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