The case against the (strong) rights-based judicial review of citizen-initiated referenda

Thesis

Direct democratic institutions – such as citizen-initiated statutes and citizen-initiated constitutional amendments – are a fact of political life in Switzerland and several US states. However, the question then arises whether the outputs of such institutions (warts and all) should at any point be subject to strong rights-based judicial review. This thesis argues that they should not. Instead, judicial review of direct democracy should be replaced by a Constitutional Council of Revision, a partly-appointed, partly randomly-selected body which at any point in time can propose amendments or revisions to any pending or past ballot measures.

Drawing on a diverse array of historical case studies, I suggest that my hypothesised Constitutional Council of Revision might well be an institutionally superior institutional mechanism to address any alleged drawbacks associated with citizen lawmaking. This is especially so, given that: (1) voters typically lead, rather than trail, the judiciary when it comes to progressive social change; (2) the glaringly counter-majoritarian character of judicial review, which thwarts the votes cast by millions of voters, and thereby threatens to breed greater cynicism about the democratic ideal; (3) the backlash that comes with judicial intervention can sometimes do more harm than good and may even unwittingly cause public policy to shift to an even more extreme anti-minority position; (4) most constitutional objections to direct democratic outputs can be remedied by minor amendments or "tweaks" to the original proposal without needing to invalidate the proposals in their entirety; (5) direct democratic measures involve reasonable almost invariably involve attempts to defend fundamental rights and heated but good faith attempts to secure what justice or good policy requires; (6) direct democratic outputs already face multiple potential roadblocks in order to be successfully implemented, even without an additional vetopoint like strong rights-based judicial review.

Authors: Spadijer, S

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: referendums; direct democracy; populism; bills of rights; judicial review of direct democracy; citizen-initiated referendums; referenda; judicial review
• Subjects: Constitutional history; Constitutional law