Written by Nathan Tucker (Davenport)
Recently I wrote in favor of amending the Iowa Constitution at a constitutional convention so as to allow Iowans the ability to propose constitutional amendments by way of a ballot initiative. This proposal was in response to an ongoing discussion among conservatives over the prudence and practicality of using a constitutional convention to pass a marriage amendment in Iowa if the General Assembly failed to vote one out of the legislature for the people’s vote.
There are several understandable and viable concerns over the use of a constitutional convention which were addressed in my earlier article. But my proposal for a ballot initiative as a two-fold means to (i) keep the lid on Pandora’s Box at such a convention and (ii) check judicial activism aroused concerns of its own with claims, among other things, that it was liberal populism in disguise.
Though the ballot initiative was introduced and enjoyed the height of its popularity during the Progressive Era, my proposal is anything but progressive. The traditional process of amending the constitution through legislative initiative is long and cumbersome and, with the sole exception of the 13th Amendment which overturned Dred Scott, has yet to repeal any acts of judicial activism. The process is purposefully meant to be difficult so that the temporary passions of a majority will not make things worse by an ill-conceived amendment that has not been fully deliberated.
But in light of an increasingly active judiciary and the corresponding loss of public faith in its decisions, it is perhaps time to amend the amendment process itself to allow citizens the ability to place a constitutional amendment directly on the ballot for voters to consider and ratify. Such a process can still be deliberative while at the same time ensuring that the people, independent of the legislature, have the power to check the judiciary.
My proposal does exactly that. First, it requires a significantly high threshold—15% of voters in the last gubernatorial election—before the proposed amendment can be placed on the ballot. Only one other state that has ballot initiatives requires a 15% threshold, while the remaining states required only 8% or 10%.
Additionally, it not only requires such a high threshold across the state, but also requires it uniformly throughout the state by dividing the state into sections (each congressional district is divided in ½) in order to ensure wide-spread support for it. Again, only one other state requires such a measure.
Secondly, my proposal requires that the ballot initiative be approved in two of the last three general election cycles. No other state with a ballot initiative has this requirement, which guards against an ill-conceived amendment being passed in a fit of temporary passion by the majority. It ensures that two years—the time between general election cycles—passes between votes on the amendment, and prohibits a special election from being called to speed up the process. The process remains deliberative and laborious, but it remains the people’s process and not that of party bosses in the legislature.
In addition to groundless fears of progressive liberalism behind the proposal, critics point to California as an example of everything that is wrong with the ballot initiative. Because of the wide-spread use of the ballot initiative in that state, most people commonly associate it with California and, as a result, with liberals. It should first be noted that the vast majority of alleged abuse in California concern proposed statutes or referendums on statutes already passed by the state legislature, while my proposal only concerns constitutional amendments.
Additionally, while California is the most notorious state with ballot initiatives, it is one of only sixteen states where the citizens have such power. The remaining fifteen are: Arkansas, Arizona, Colorado, Florida, Illinois, Michigan, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Oregon, and South Dakota. Because these states are not liberal (in fact, a majority either lean or are reliably Republican0, their ballot initiatives are more moderate and, as a result, get very little notice. One bad example does not prove that the process has no merit.
Finally, no better example of how the ballot initiative can stop judicial activism is the wave of defense of marriage amendments that have swept the nation in the past decade. Thirty states have adopted such amendments, including all but one state that has the option of ballot initiatives. Of those fifteen states with the option of ballot initiatives, nine of their amendments were the result of ballot initiatives rather than legislative initiatives. In several of those states, including California, the amendment never would have seen the light of day if it were dependent upon a vote by the legislature.
There is no better check on judicial activism than the ability of the people to trump an egregiously decided opinion of the court by amending the constitution. The ballot initiative not only allows the people the mechanism to do this without dependence on the legislature, but it allows them to check judicial activism even before the judges strike.
Of the thirty states which have passed marriage amendments, the vast majority did so before their supreme court had an opportunity to strike down their marriage statutes. Unlike a legislature which is purely reactionary, the people can see a looming attack by the judiciary and pass a constitutional amendment before the crises hits.
There is no surer remedy to judicial activism than We The People. As James Madison wrote in Federalist 49: “As the people are the only legitimate fountain of power, and it is from them that the Constitutional Charter under which the several branches of government hold their power is derived, it seems strictly consonant to the republican theory to recur to the same original authority whenever it may be necessary to enlarge, diminish, or new-model the powers of government.”
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