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Taking the initiative: may Congress reform state initiative lawmaking to guarantee a republican form of government?

I. INTRODUCTION

Lawmaking by citizen initiative (1) is currently driving public policy in the twenty-seven states that have bestowed voters with the initiative power. Initiative sponsors span the political spectrum, ranging from liberal to conservative, pro-business to environmentalist and pro-labor. In 1998, for example, voters used the initiative process to end affirmative action, raise the minimum wage, ban billboards, decriminalize drugs, permit medical marijuana, restrict campaign spending and contributions, expand casino gambling, ban certain forms of hunting, prohibit some abortions, and allow adopted children to obtain the names of their biological parents. (2)

Although successful ballot initiatives inevitably create winners and losers, most voters in these states continue to support the initiative as bringing power to the people. (3) Supporters typically harbor a deep distrust of state legislators and view direct democracy as a counterbalance to special interest-dominated politics. (4) However, this battle cry of support has not been universal. The initiative power creates state policy by simple majorities of eligible lay-voters. These voters are unaccountable to the public, are free to cast their ballots in secret, and are under no obligation to inform themselves on the issues. Critics commonly point to recently passed initiatives restricting gay rights, establishing English as the official language, and enhancing criminal penalties as examples of "tyranny of the majority." (5) Reformers often seek a principled way to prohibit "bad" initiatives dealing with minority group interests while permitting "good" initiatives for school or park bonds. (6) Others prefer to prohibit initiative lawmaking altogether. (7)

Opponents of individual initiatives have sought relief from the federal government, primarily from the courts. Litigants and academics have recently given increased attention to the Guarantee Clause of Article IV, which provides: "The United States shall guarantee to every State in this Union a Republican Form of Government...." (8) Federal courts, however, have been unwilling to evaluate alleged Guarantee Clause violations by state initiative lawmaking since 1912 when the U.S. Supreme Court, in Pacific States Telephone & Telegraph Co. v. Oregon, (9) refused to grant jurisdiction based on political question grounds. One commentator refers to the judiciary's invocation of the political question doctrine as a "remarkable case of professional default." (10)

Little attention has been paid to the role of Congress. Perhaps this inattention is not surprising. First, the Clause does not specifically designate Congress, but is silent as to the branch of the United States government with the duty to enforce the guarantee. Second, the phrase "republican form of government" is subject to various interpretations. Finally, it may be politically impossible to build a coalition in Congress sufficient to reform the states' initiative power. Indeed, twenty-seven states with the initiative power form a majority in the Senate, and the remaining twenty-three may have little interest in reforming direct democracy. Thus the Clause remains dormant as state lawmaking by initiative accelerates.

Given the default of the courts and the inconceivable role for the President, this Note argues that the duty to enforce the Guarantee Clause has fallen on Congress. Two commentators have evaluated the role of Congress in guaranteeing a republican form of government, yet have reached differing conclusions. Professor Chemerinsky has argued that Pacific States was wrongly decided and that the Guarantee Clause should be justiciable by the courts. (11) Congress, he argues, would face pragmatic obstacles and may be barred by the Tenth Amendment from enforcing the Clause against the states. Chemerinsky recognizes the possibility, however, that the Guarantee Clause could trump Tenth Amendment concerns, given the Clause's "specific grant of power to the federal government over state government structure and processes." (12) Still, he maintains that such an exercise of congressional authority would be of "questionable constitutionality." (13)

On the other hand, commentator Leong has argued that Congress should create judicially manageable standards for courts to evaluate whether initiatives comply with the republican form of government. (14) Leong argues that Congress should assert its power under the Guarantee Clause and the Fourteenth Amendment to invalidate any voter-initiated ballot measure that "uniquely burdens a member of an identifiable group traditionally the subject of arbitrary or invidious discrimination ... or that has been popularly enacted to avoid the protective structures of a republican form of government." (15) She cites examples of "identifiable groups" as including classifications based on illegitimacy, homosexuality, language proficiency, or military duty. (16) Leong would also have Congress invalidate initiatives that avoid a republican form of government, requiring "reflection, exposure to competing needs, and occasions for transforming preferences." (17) Such a congressional statute, Leong asserts, would leave untouched the "highest and best use of ballot initiatives." (18)

Over the past decade, the Supreme Court has restricted Congress' power to enforce the Fourteenth Amendment and has given teeth to state sovereignty, identifying the Tenth Amendment and the Guarantee Clause itself as sources of federalism. These restraints on congressional power bolster Chemerinsky's concern about the "questionable constitutionality" of Congress' power to enforce the Guarantee Clause. Furthermore, the Court has hinted that it might be willing to reevaluate the holding of Pacific States. (19) This Note evaluates Congress' authority to enforce the Guarantee Clause in light of the current constitutional separation of powers landscape.

This Note argues that Congress' duty to guarantee a republican form of government includes the power to restrict state lawmaking by initiative. Part II provides the historical background of state initiative lawmaking. Part III discusses Congress' authority to legislate under the Guarantee Clause and the Necessary and Proper Clause. (20) Part IV notes that Congress has limited authority to interpret the Constitution as consistent with separation of powers principles. Although its ability to interpret the Constitution sans the judiciary is unrestricted under the political question doctrine, the Supreme Court would likely hold the Guarantee Clause justiciable if Congress interpreted the Clause in a manner that infringed upon state sovereignty. Part IV argues that Congress has the authority to interpret the phrase "republican form of government" as consistent with horizontal separation of powers issues, even if the Supreme Court reverses Pacific States and holds the Guarantee Clause justiciable.

Part V discusses the impact of state sovereignty on Congress' authority to enforce the Guarantee Clause by analogizing to Congress' authority to enforce the Civil War Amendments against the states. The barrier imposed by the Tenth Amendment is probably quite low under Garcia v. San Antonio Metropolitan Transit Authority, (21) so long as the national political process adequately addresses sovereignty concerns. However, Part V argues that, like its use of enforcement powers under the Fourteenth Amendment, Congress may only enforce remedial measures against state violations of republican government particularly since state lawmaking lies at the heart of state sovereignty. As such, Congress' reforms must pass the "congruence and proportionality" test articulated by the Supreme Court in City of Boerne v. Flores (22) for enforcement of the Civil War Amendments. Part VI evaluates three types of legislative proposals to reform initiative lawmaking for consistency with separation of powers and federalism. Part VI concludes that Congress has the authority to enact a complete ban on state initiative lawmaking. Congress may also prohibit specific subject matter from initiative lawmaking, but only such reforms that are remedial and sufficiently tailored to achieve the purposes of the Guarantee Clause.

II. BACKGROUND OF INITIATIVE LAWMAKING

A. State Lawmaking by Initiative

States began their grand experiment with direct democracy when South Dakota adopted the initiative as a constitutional amendment in 1898. Fueled by the Populist and Progressive movements, nineteen states adopted some form of the initiative as part of their respective state constitutions during the period 1898 to 1918. (23) The reformers believed that special interests and big business controlled state legislatures. The initiative was a means to empower the people to act directly where the legislature failed to be responsive to their will. (24)

The initiative is deeply rooted in the democratic tradition, yet these roots appear largely inapplicable to the modern statewide practice. (25) Its history dates back to Athens, where adult male citizens met, discussed, and decided issues face-to-face. (26) More recently, the colonial New England town meeting permitted adult males to participate in community decisionmaking. (27) However, the Founders viewed direct democracy as contributing to the failure of Greek city-states. (28) Furthermore, the New England town meeting provides a weak analogy to statewide initiative lawmaking today. The homogeneous citizenry of colonial New England used direct democracy to decide local issues primarily by consensus. (29) In sharp contrast, a diverse and populous state citizenry approves modern initiatives by simple majorities in the private confines of the voter booth.

Today, twenty-seven states have some form of the initiative or referendum. (30) Eighteen of those states permit the use of the initiative to amend the state constitution. (31) In 1911, California amended its constitution to incorporate the initiative and has since used the initiative power more frequently than any other state. (32) Initiative sponsors in California often submit their measures as constitutional amendments, which may be enacted by a majority of voters, because amendments are harder for the legislature to undo, requiring a two-thirds vote of each house. (33)

The popularity of the initiative has surged in the past two decades, corresponding with a decreased emphasis on representative democracy. (34) This surge in initiative lawmaking is often attributed to California's Proposition 13, the 1978 "tax revolt" measure. (35) Along with popularity has come well-founded criticism and increasing calls for reform. First, critics point out the problems with "ballot-box budgeting," which ties up state funds for special purposes. As a result, legislatures control smaller fractions of the state budget. (36) Voters have neither the duty nor the ability to balance state budgets. Furthermore, the initiative tends to drive state public policy, displacing the legislature's function. In contrast to the state legislative process, the initiative offers no forum for deliberation and exchange on these contentious policy issues. Finally, the irony of the initiative process is that it has become a big-dollar industry plagued by the same problems that it sought to reform. Journalist David Broder reports that in the 1998 election cycle, the "initiative industry" raised and spent at least a quarter-billion dollars in this "fitfully reported" arena of politics. (37) Indeed, in California, and perhaps Oregon as well, "it is almost impossible to get a measure on the ballot without a well-organized, well-funded campaign using paid signature gatherers." (38)

B. The Initiative's Consistency with Republican Government

The initiative is in tension with the American tradition of representative democracy. The Framers of the Constitution rejected direct democracy as a mode of national governance and, instead, created an elaborate system of representative democracy to protect against rash decisionmaking. (39) James Madison dedicated the entire Federalist No. 10 to describing the evils of direct lawmaking and the merits of the representative, or republican, form of government. For Madison, direct democracy posed the threat of "faction," which he described as "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." (40) Madison also pointed out that the danger of faction grows with the increasing size and territorial extent of the governed area. (41) Perhaps not surprisingly, California, the nation's most populous state, passes the most initiatives. Representative democracy, on the other hand, allows for deliberation and debate, where public views can be "refine[d] and enlarge[d] ... by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." (42)

The Framers also required the states to have a republican form of government under the Guarantee Clause. Madison defined the "republican form" in contrast with direct democracy:
 A republic, by which I mean a government in which the scheme of
 representation takes place, opens a different prospect and promises the
 cure for which we are seeking....

 The two great points of difference between a democracy and a republic
 are: first, the delegation of the government, in the latter, to a small
 number of citizens elected by the rest; secondly, the greater number of
 citizens and greater sphere of country over which the latter may be
 extended. (43)


Madison's interpretation of the Guarantee Clause would appear to foreclose any possibility of initiative lawmaking in the states. Obviously the goals of representative democracy are not achieved where there is no forum for deliberation outside the editorial pages of the newspaper. However, the Clause is subject to varying interpretations. For some Framers, the Clause meant nothing more than to ensure that states did not establish a monarchy or aristocracy. (44) Recently, several academics and Supreme Court opinions have pointed to the Clause as a source of state sovereignty. (45) However, the Court has not provided any hint as to what the Guarantee Clause means in the context of the voter initiative, since it has refused jurisdiction under the political question doctrine.

Numerous commentators have identified the initiative and referendum process as posing a unique threat to individual rights. (46) While the legislature can similarly pass statutes burdening individual rights, the deliberative process guards against self-interested lawmaking guided by common impulse and passion. Madison, in Federalist No. 10, explains how representative democracy protects minority interests from majority factions. In the case of direct democracy, the procedural safeguards of representative government are removed. A survey of recently passed initiatives identifies these "losers" in the polls. For example, a study of initiatives and referenda from 1959-1993 concerning five civil rights areas (housing and public accommodations for racial minorities, school desegregation, gay rights, English language laws, and AIDS policies) found that direct democracy has been extraordinarily successful in restricting civil rights. (47) Voters approved more than three-fourths of these measures, while passing only about one-third of all initiatives and referenda in the same period. (48) Furthermore, advertising campaigns that promote initiatives that burden unpopular groups such as non-native English speakers, gays, and criminal defendants can cause harm to the social fabric by perpetuating prejudice even if the initiative is not passed.

Initiatives also contrast sharply with representative democracy because the electorate lacks the competence of legislators. First, voters obviously lack expertise in the substantive issues and the legal jargon used in the text of the initiative. Indeed, in California, most voters do not read the ballot pamphlet. (49) This is hardly surprising since ballot pamphlets have inflated in size in recent years (50). For those that do, they are typically confronted with terms such as "joint and several liability" and "right of contribution" that are incomprehensible to the lay voter. (51) Voters may also be confused about the meaning of a "yes" vote. Indeed, initiatives may be worded and advertised in such a way to obscure the meaning of a "yes" vote. (52)

Second, unlike legislators, voters cast their ballots in private, which threatens unbiased decision-making. (53) Courts are foreclosed from investigating the electorate's motivations based on privacy concerns. (54) Voters have thus been described as the "least accountable branch" (55) and the process of secret voting as "privatizing the public sphere." (56) Furthermore, initiative lawmaking does not allow for compromise, which is a fundamental characteristic of the legislature. Voters are presented with a one-time yes or no vote. Unlike elected representatives, voters have no incentive to take a compromise position in light of their continuing relationship with the "other side of the aisle." Third, initiative lawmakers tend to be a self-selected group. Since there is no voter quorum requirement, initiatives are passed by people most likely to vote--a predominantly educated, affluent and white group of citizens. (57) Thus, the initiative voter may not be representative of the population.

At the very least, the initiative is no longer serving the progressive purposes for which it was intended. Yet is Congress the appropriate governmental actor to modify or extinguish the experiment in direct democracy? Our nation's federalist system rests strongly upon the notion that states are laboratories for institutional innovation. (58) While direct democracy may be an experiment that has failed in several respects, it has succeeded in others. (59) On the other hand, state legislators may be politically incapable of refining the experiment in direct democracy. Power, once ceded to the people, would be politically difficult for state legislators to revoke. State judges may also be ill suited to curb the experiment in direct democracy since they are typically elected and may be subject to voter recall. The following sections elaborate upon congressional authority to restrict citizen initiative lawmaking and the external limits created by separation of powers and federalism problems.

III. CONGRESSIONAL POWER

The Guarantee Clause may represent the last bastion of authority held by Congress to pass laws that define substantive rights. The Supreme Court has held the Clause to be a political question, thus opening the door to congressional legislation that seeks to guarantee the states a republican form of government. Congress could pass reforms, under its Guarantee Clause authority, restricting the process of initiative lawmaking, prohibiting certain subject matter or banning lawmaking by initiative altogether. Furthermore, some federal courts have suggested in dicta that the Guarantee Clause was a source of congressional authority to pass the Voting Rights Act. (60) It is difficult to imagine, however, that the Supreme Court would continue to hold the Guarantee Clause a political question if Congress were to pass legislation under its authority. If the Court holds the Clause justiciable, Congress' interpretation of the phrase "republican form of government" would be vulnerable to being supplanted by that of the Court.

A. Nonjusticiability

Federal courts have refused to hear challenges brought under the Guarantee Clause since the Supreme Court's 1912 decision in Pacific States Telephone & Telegraph Co. v. Oregon. (61) Pacific States Telephone challenged a telephone tax passed pursuant to Oregon's citizen initiative lawmaking authority as denying them a republican form of government. (62) The Supreme Court refused to grant jurisdiction, holding that the guarantee of a republican form of government is a political question "within the scope of the powers conferred upon Congress." (63)

The Supreme Court's decision in Pacific States has been widely criticized for its refusal to recognize an important source of individual rights, (64) its unrestrained interpretation of Luther v. Borden, (65) and its anomalous use of the political question doctrine for challenges to actions of state government. (66) These criticisms have been lodged both by states' rights advocates (67) as well as by commentators looking for a constitutional basis to challenge products of direct democracy. (68) Indeed, the Supreme Court has recently expressed its willingness to reconsider the conventional view that claims founded on the Guarantee Clause present nonjusticiable political questions. (69) However, the expansive promise of "republican form of government" is susceptible to a wide variety of interpretations. Even John Adams confessed, twenty years after the Constitution was ratified, that he "never understood" what the Guarantee Clause meant and "believe[d] no man ever did or ever will." (70) On the one hand, Madison's Federalist No. 10 expressed the view that republican government means representative democracy. (71) Professor Amar, on the other hand, interprets the Clause as providing no more than an assurance of popular sovereignty in the states, (72) thereby upholding state initiative lawmaking power as consistent with the republican form of government.

B. The Scope and Mechanics of Congressional Legislation

Rather than waiting for the Supreme Court to reverse Pacific States and hold the Guarantee Clause justiciable, Congress should step in to ensure that initiative lawmaking does not deny states the protection of a republican form of government. The Clause places a nondiscretionary duty upon the federal government: "The United States shall guarantee to every State in this Union a Republican Form of Government...." (73) Given the inherent uncertainty of the purposes served by the Guarantee Clause, this is no easy task. However, Congress is not without guidance. For instance, commentator and former Oregon Supreme Court Justice Hans Linde has proposed two underlying purposes. (74) First, he argues the Clause was meant to preclude lawmaking by initiative on measures of popular passion or self-interest. (75) These value-laden policy issues were reserved for a deliberative setting. Second, the Clause protects states from initiative laws that use constitutional text as a form of insulation from legislative amendment as well as judicial review. (76) In other words, the Clause prevents complete bypass of checks and balances. Where Congress finds that the use of the citizen initiative in the states undermines the "republican form," it has the affirmative duty to restrict the use of initiative lawmaking in the states.

Congress is authorized under the Necessary and Proper Clause to make laws to execute not only Article I powers, but also "all other Powers vested by this Constitution." (77) Under the Supreme Court's interpretation of the Necessary and Proper Clause in McCulloch v. Maryland, (78) Congress has broad power to legislate by any means rationally related to the guarantee of a republican form of government. The Constitution therefore contains a positive grant of power to Congress to restrict state practices that are inconsistent with the republican form of government. Congress could enforce its restrictions in federal courts or by refusing to recognize states that violate federal restrictions on initiative lawmaking. (79)

Congress could pass at least four types of reforms. First, Congress could enact a nationwide ban upon finding that initiative lawmaking is a Guarantee Clause violation. This ban would not necessarily include restrictions on the use of the referendum, which merely adds a layer of direct democracy while preserving the role of representative government. Second, Congress could enact procedural reforms. For example, Congress could require that all initiatives receive a two-thirds majority to pass. Or, Congress might enact a nationwide single subject rule, requiring that each initiative be limited to a single legislative proposal. Third, Congress could prohibit initiative lawmaking based on its subject matter. Thus, it might adopt Leong's proposal and invalidate initiatives that uniquely burden identifiable groups. (80) This proposal would address Linde's first concern because it would prohibit initiative subject matter that tends to reflect self-interested and impassioned lawmaking. Furthermore, this proposal would address Madison's concern about protection of minority interests. Fourth, Congress could enact subject matter-based restrictions that would prohibit all initiative lawmaking except that which concerns the instrumentalities of state government. Acceptable types of initiative lawmaking would include reforms that state legislators have a natural disincentive to pass, such as term limits, campaign finance reform, and the power to recall elected officials. First, however, in any and all of these instances, Congress must pass a statute that does not infringe upon the "province and duty of the judicial department to say what the law is." (81)

IV. CONGRESS' AUTHORITY TO INTERPRET THE CONSTITUTION

The Guarantee Clause may represent the last remaining source of congressional power to interpret substantive constitutional rights. Congress' power to interpret the Constitution was first restricted in Marbury v. Madison, (82) which stands for the proposition that the Supreme Court is the ultimate interpreter of the Constitution. (83) Despite Marbury, the Civil War Amendments appeared to grant Congress a certain degree of authority to define individual rights. For example, Section 5 of the Fourteenth Amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (84) The Guarantee Clause employs even stronger enforcement language since "shall guarantee" refers to an affirmative obligation, rather than the discretionary "shall have power" language in Section 5 of the Fourteenth Amendment. However, Congress has a weaker claim to power under the Guarantee Clause since the Framers' designated the "United States" rather than "Congress" to guarantee the states a republic form of government. Despite this textual ambiguity, the political question doctrine affords Congress tremendous leeway to interpret constitutional provisions. For example, Congress has the power to interpret the meaning of Article V because the constitutional amendment process represents a nonjusticiable political question. (85)

There is good reason to believe, however, that the Court would not refuse jurisdiction based on the political question doctrine were Congress to restrict state initiative lawmaking. Rather, the Court would likely step in to ensure that Congress had acted consistently with separation of powers, namely that Congress did not infringe upon the domain of the judiciary or the states. Furthermore, there is precedent for reversal of political question doctrine. In Baker v. Carr, (86) the Supreme Court reversed its prior view that legislative apportionment was a political question. Judge Bork has argued that the Guarantee Clause may have been a stronger basis for the legislative apportionment cases than the Equal Protection Clause. (87) Although the Baker majority distinguished the Guarantee Clause from legislative apportionment, Justice Frankfurter's dissent called legislative apportionment "a Guarantee Clause claim masquerading under a different label." (88) Given the links between the guarantee of a representative form of government and legislative apportionment, the Supreme Court has already opened the door to holding the Guarantee Clause justiciable.

A. Congress' Power to Interpret the Civil War Amendments

It is impossible to predict with absolute certainty how the Supreme Court would evaluate the horizontal separation of powers issues were Congress to interpret the phrase "republican form of government." Nevertheless, the Court's treatment of congressional power under the enforcement provisions of the Civil War Amendments suggests how the Court might address this issue. The provisions share two important similarities. First, both the Guarantee Clause and the Civil War Amendments apply directly against the states, suggesting that federal power may trump state sovereignty. Second, Congress has explicit authority to enforce the Civil War Amendments, which provide that Congress "shall have the power to enforce" their provisions. Similarly, the Supreme Court has granted Congress the sole authority to enforce the Guarantee Clause by stating repeatedly that the provision is for Congress to interpret and enforce. (89) The Supreme Court, however, has recently restricted Congress' ability to interpret substantive rights through its power to enforce the Civil War Amendments. Given the virtual monopoly the Supreme Court has in constitutional interpretation, Congress would likely face similar restrictions in its interpretation and enforcement of the Guarantee Clause.

For most of the twentieth century, it appeared that the Civil War Amendments granted Congress the power to interpret the Equal Protection Clause and other substantive individual rights more expansively than they were enforced by the Supreme Court. Congress used its enforcement power under Section 5 of the Fourteenth Amendment to pass Section 4(e) of the Voting Rights Act of 1965, which prohibited states from using certain literacy tests to determine voter eligibility. In Katzenbach v. Morgan, (90) the Supreme Court upheld this section of the Voting Rights Act even though the Court had previously held that such tests did not themselves violate the Fourteenth Amendment. (91) The Court provided two rationales for its holding. First, Justice Brennan, writing for the majority, noted that Section 5 enlarged the power of Congress, authorizing it to make the Fourteenth Amendment "fully effective." (92) In a footnote, Justice Brennan suggested that Section 5 powers could be used to expand the guarantee of equal protection since they could not be used to "restrict, abrogate, or dilute [this] guarantee[]." (93) Rejecting the argument that Congress could only abrogate those state laws that the Supreme Court found unconstitutional, the Court noted that this interpretation would "confine the legislative power in this context to [an] insignificant role." (94) Second, the Court noted the superior factfinding and remedy-making ability of Congress. (95) The Court's treatment of the first rationale led some commentators to refer to the enforcement provisions as a "ratchet" Congress could use to expand individual rights. (96)

Despite the promise of the one-way "ratchet" theory for proponents of congressional authority to interpret the Constitution, the Supreme Court closed the door to this interpretation of Katzenbach in City of Boerne v. Flores. (97) In City of Boerne, the Court struck down the Religious Freedom Restoration Act of 1993 ("RFRA"), passed pursuant to Section 5 of the Fourteenth Amendment. In passing RFRA, Congress sought to change to strict scrutiny the standard of review applied to facially neutral laws that burden religion, whereas the Supreme Court had previously held, in Employment Division v. Smith, (98) that rationality review should apply. The Court explicitly rejected the one-way ratchet theory as inconsistent with the consequence of Marbury v. Madison that Congress cannot alter the Constitution except by amendment. (99) Instead, Congress' power to enforce the Fourteenth Amendment is limited to passing statutes that are both "congruen[t] and proportional[]" to remedy unconstitutional conduct. (100) The Court distinguished the provision of the Voting Rights Act upheld in Morgan, which in large part resembled RFRA, based on Congress' superior ability to perform factfinding and determine "in the first instance ... `whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.'" (101) In such cases, the Court would defer to legislative findings and uphold statutes that enforce the Fourteenth Amendment.

B. The Guarantee Clause as a Judicially Underenforced Norm

It is difficult to imagine, after City of Boerne, what is left for Congress to do under its power to enforce the Civil War Amendments. Likewise, it is difficult to determine to what extent Congress may interpret and enforce the Guarantee Clause without offending horizontal separation of powers if the Supreme Court reverses Pacific States. The pessimistic view is that Congress may only use its enforcement power to pass laws that "lock-in" decisions by the Supreme Court. This interpretation renders the enforcement provision virtually meaningless. Another, more optimistic, view is that Congress retains the authority after City of Boerne to enact legislation to enforce judicially underenforced norms. (102) Under this view, federal courts lack the capacity to enforce constitutional norms at the margin because they are limited to case-by-case adjudication. Congress may use its superior factfinding ability to enforce rights at the margin, so long as enforcement does not diminish the force of other fights recognized by the Supreme Court. (103) This second view suggests a role for Congress to enforce the Civil War Amendments that is consistent with Marbury v. Madison. Congress, in passing RFRA, strayed too far from the constitutional norm, but, in passing the Voting Rights Act, it helped federal courts ascertain the norm.

The Guarantee Clause represents a judicially underenforced norm since it is, at least for the present time, a nonjusticiable political question. If Congress passed a law restricting initiative lawmaking in the states, the Supreme Court could, under principles of stare decisis, refuse to grant jurisdiction to the complainant. However, even if the Supreme Court were to reverse Pacific States, Congress' enforcement of the Guarantee Clause should be upheld because the Court has refused to enforce the Clause itself. The Supreme Court has recognized Congress' superior authority where the Court has not yet fully enforced a constitutional provision: "It is for Congress in the first instance to `determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." (104) The key to such deference lies in Congress' superior ability to make legislative findings. The City of Boerne Court noted Congress' failure to make legislative findings regarding the evil of religious bigotry that RFRA sought to address. (105) In contrast, the Court noted the extensive findings of discriminatory practices that motivated the Voting Rights Act. (106)

In sum, Congress would not violate horizontal separation of powers by legislating under the Guarantee Clause. Congress has a distinct advantage in determining what reforms are congruent and proportional to remedying violations of the republican form of government since it would be enforcing the Guarantee Clause from a blank slate.

V. FEDERALISM'S LIMITS ON CONGRESS' ENFORCEMENT AUTHORITY

With careful factfinding, Congress could surmount the separation of powers issues related to interpreting a clause of the Constitution. However, Congress would face the additional hurdle posed by the "tacit postulates" of federalism (107) because it would be regulating an area that hits close to the core of sovereignty and self-government. In Printz v. United States, (108) Justice Scalia, writing for the majority, explained that the textual sources of these "tacit postulates" include both the Tenth Amendment and the Guarantee Clause. (109) Furthermore, the "congruence and proportionality" requirement articulated in City of Boerne represents the Court's solution to both horizontal separation of powers and federalism concerns in the analogous enforcement provisions of the Civil War Amendments.

These textual and structural sources of federalism restrict Congress' power to intrude on state sovereignty in order to guarantee the states a republican form of government. Any attempt by Congress to reform state initiative lawmaking would be reminiscent of Coyle v. Smith, (110) where the Supreme Court held that Congress may not tell a state where its capital must be located. Of course, Coyle is distinguishable since Congress can justify its direct democracy reforms under its duty to enforce the Guarantee Clause, which is certainly superior to an arbitrary geographic preference. But the Guarantee Clause also cannot be an open invitation to reform state government.

A. The Tenth Amendment

The Tenth Amendment is not typically viewed as an independent check on congressional power except in limited circumstances where other structural protections break down. Under the terms of the Tenth Amendment, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (111) Admittedly, the text of the Amendment is not helpful in delineating state and federal power since its terms are "essentially a tautology." (112) As such, attempts by federal courts to distinguish traditional state functions have been largely unsuccessful. (113) In Garcia v. San Antonio Metropolitan Transit Authority, the Court upheld the federal Fair Labor Standards Act as applied to state transit workers. (114) Justice Blackmun, writing for the Court, reasoned that protections of state sovereignty are built into the structure of the Constitution. (115) Federal courts need not interfere to vindicate the Tenth Amendment because "[t]he political process ensures that laws that unduly burden the States will not be promulgated." (116) Blackmun left open the possibility, however, that federal courts may need to intervene to protect states where the national political process operates in a defective manner. (117)

On balance, it is unlikely that congressional reform of initiative lawmaking

would represent an instance where the usual protections of the political process do not function. True, Congress would be regulating the states as states rather than as market participants. Since the states' nongovernmental allies would not be subject to regulation, states would arguably have a weaker voice in the political process. On the other hand, states would have a powerful nongovernmental ally in what journalist David Broder calls the "initiative industry." (118) The structural protections of the political process may be inadequate because the twenty-seven states that have some form of the initiative or referendum (119) represent only a slim majority in the Senate. However, it is unlikely that the twenty-seven states would be outnumbered since they include California and would be joined by hundreds of municipalities with similar initiative and referendum powers, including New York City. (120) There are also many practical impediments to congressional reform in this area (121) that would tend to assuage any fears about federal overreaching.

B. Congruence and Proportionality

Most of the Court's Tenth Amendment jurisprudence, including Garcia and Printz, was developed in the context of Congress' exercise of its Commerce Clause authority. However, as explained in City of Boerne, when Congress acts under its Fourteenth Amendment enforcement powers, it has authority to "prohibit conduct which is not itself unconstitutional and [to] intrud[e] into `legislative spheres of autonomy previously reserved to the States.'" (122) Proper exercise of Congress' enforcement powers under the Civil War Amendments may also abrogate Eleventh Amendment state sovereign immunity. (123) As discussed above, Congress' enforcement power under the Civil War Amendments is analogous to that under the Guarantee Clause because both apply directly against the states. Thus, Congress' power to enforce the Guarantee Clause should also diminish federalism concerns.

However, this power to intrude on state sovereignty is not unlimited. Under its Fourteenth Amendment enforcement powers, Congress may enact only those remedial measures that are "congruent and proportional" to the constitutional evils they seek to address. (124) This limitation on congressional power prevents Congress from violating both horizontal separation of powers, as discussed above, and the tacit postulates of federalism. The Court explained in City of Boerne that it was striking down RFRA because it "contradicts vital principles necessary to maintain separation of powers and the federal balance." (125) Similarly, in Board of Trustees of the University of Alabama v. Garrett, (126) the Court struck down a provision of the Americans with Disabilities Act of 1990 ("ADA"), passed pursuant to Congress' enforcement powers under the Fourteenth Amendment, which attempted to abrogate state sovereign immunity under the Eleventh Amendment. The Court explained that the rights and remedies created by the ADA against the states were not "congruent and proportional" to the alleged unconstitutional discrimination by the states against the disabled. (127)

Similarly, it is unlikely that the Guarantee Clause completely tromps federalism concerns since state initiative lawmaking simply lies too close to the core of state sovereignty. Congress would probably be restricted to enacting only "congruent and proportional" reforms under its Guarantee Clause authority. The Supreme Court has decided only a handful of cases that help determine the parameters of the congruence and proportionality requirement. The Court has indicated that congruence and proportionality depend in part on the extent to which Congress tailors its remedies to respond to specific evidence of constitutional violations in particular states. Thus, the City of Boerne Court explained that in South Carolina v. Katzenbach, (128) the Court upheld provisions of the Voting Rights Act that were confined to those regions of the country where voting discrimination had been most flagrant. (129) RFRA, in contrast, provided a nationwide remedy absent any findings of nationwide constitutional violations. (130) Similarly, in Garrett, the Court held that portions of the ADA exceeded Congress' Fourteenth Amendment enforcement powers, because Congress failed to make findings of discrimination by the states against the disabled. (131) These cases suggest that Congress must tailor its enforcement of the Guarantee Clause to remedy specific violations.

C. Guarantee Clause as Both a Floor and a Ceiling

Congress' power to regulate state initiative lawmaking may also be limited by the Guarantee Clause itself, which represents both a floor and a ceiling of permissible federal intervention. Professor Laurence Tribe describes the dual nature of the Clause with respect to state sovereignty:
 [T]he clause can be read both as a restraint on the range of permissible
 state government forms, and as a protection from exercises of federal power
 that would either eliminate the "republican" nature of any particular state
 government or render "non-republican" a state's choice of a particular
 structure for governance. The history of the Constitutional Convention and
 the ratification debates indicates that the clause's purpose includes both
 facets, although the former aspect has usually received more attention.
 (132)


Despite the Framers' focus on the Guarantee Clause as a restraint on the permissible forms of state government, the modern Supreme Court has emphasized the latter purpose. The Court has identified the Guarantee Clause as a constitutional source of federalism in both New York v. United States (133) and Printz v. United States. (134)

Assuming it is applicable, the Guarantee Clause would narrow the set of reforms that Congress may constitutionally impose on state initiative lawmaking lest it run into the Clause's ceiling aspect. Congress certainly would have an obligation to step in if California's governor abolished state senate seats only for senators representing districts in southern California. Congress could logically conclude that California no longer had a republican form of government, even though northern Californians were adequately represented in the state legislature. Under this scenario, Congress would not bump up against the ceiling aspect of the Guarantee Clause if it remedied the situation in California under its Guarantee Clause authority. It is also certain that Congress would exceed its authority under the Guarantee Clause if it forced California to become a monarchy and violate California's state sovereignty, which is in part protected by the Clause. These, however, are just the easy cases.

More troubling, of course, is the question of whether the Guarantee Clause also protects state initiative lawmaking. While it is unclear how much protection the Guarantee Clause provides states against federal intervention, the amount is probably not negligible. For one thing, elected officials passed legislation--following procedures consistent with the republican form of government--that created the initiative. In theory, elected state officials could revoke the initiative power at any time. On the other hand, states are not denied a republican form of government when Congress exercises its enforcement powers under the Civil War Amendments to remedy constitutional violations by the states. It is therefore unlikely that the protective aspects of the Guarantee Clause provide any additional protection from federal intervention beyond the constitutional limits of federalism. The ceiling provisions of the Guarantee Clause would therefore tend to reinforce the above suggestion that Congress may enact reforms of state initiative lawmaking only if they are "congruent and proportional" to remedy state violations of the republican form of government.

VI. EVALUATION OF PROPOSALS

To summarize, Congress has authority to regulate state lawmaking by initiative as a "necessary and proper" exercise of its Guarantee Clause authority. First, it must interpret the term "republican form of government." Of course, Congress' task is complicated because historians and academics have offered a range of definitions for a republican form of government. Congress need not be deterred, however, since there is no unique definition of "equal protection" either. Congress could adopt Madison's position in Federalist No. 10 and interpret the Clause to permit only representative forms of government. In contrast, it could adopt Professor Amar's position that the Guarantee Clause was included only to ensure popular sovereignty in the states. (135) Of course, Congress would not have authority to restrict direct democracy under this interpretation.

Alternatively, Congress could interpret the purposes of the Guarantee Clause and restrict initiative subject matter inconsistent with these purposes. Justice Linde, for example, argues that the Clause has the underlying purpose of prohibiting lawmaking by popular passion or self-interest. (136) Similarly, Madison explained in Federalist No. 10 how representative government is preferable to direct democracy in its ability to protect minority interests from majority passions.

Once defined, Congress may restrict initiative lawmaking so long as it does not violate horizontal separation of powers or federalism. Even if the Supreme Court reverses Pacific States, Congress would not infringe upon the judiciary by interpreting the Guarantee Clause since it is acting "in the first instance." It is unclear how the Court would evaluate the state sovereignty issues since the Guarantee Clause appears to be a grant of federal power over the states. However, Congress would likely be limited to enacting remedial reforms that are congruent and proportional to the state violation of the republican form of government. In other words, Congress must tailor its reforms closely to the goal of guaranteeing a republican form of government given state sovereignty concerns. With these considerations in mind, the following sections consider each of the proposals regarding state initiative lawmaking in turn: nationwide ban, procedural reforms, and prohibition of initiatives based on subject matter.

A. Nationwide Ban

Congress could enact a nationwide ban on state initiative lawmaking. This reform would be the most farreaching, yet also the most straightforward application of the Guarantee Clause. Initially, Congress must make findings accepting Madison's view that a republican form of government requires representative democracy. A finding, for example, that a republican form of government includes, but does not require, representative democracy would be insufficient to support a complete ban on initiative lawmaking. As discussed above, Congress would not violate horizontal separation of powers given this interpretation since the Court has refused to interpret the phrase "republican form of government" under the political question doctrine.

Next, Congress must demonstrate that the complete ban does not violate principles of federalism by showing it is simply a remedial measure. Under Madison's definition of republican government, initiative lawmaking on any subject would violate the Guarantee Clause. Thus, Congress would be acting remedially by banning all existing and prospective state lawmaking by initiative. However, Congress would probably overstep its authority, thus infringing upon state sovereignty, if it also banned state use of referenda. Lawmaking by referendum simply adds a layer of direct democracy on the representative legislature. Furthermore, the referendum is analogous to the longstanding American practice of requiring voter approval of constitutional amendments. (137) In sum, Congress could ban all initiative lawmaking under its Guarantee Clause authority by accepting Madison's definition of republican government.

B. Procedural Reforms

Congress could also enact procedural reforms. For example, Congress may require that all initiatives receive a two-thirds majority to pass. Congress would support this proposal by finding that the Guarantee Clause was meant to protect against a "tyranny of the majority." However, this procedural reform would probably fail the test for congruence and proportionality. The two-thirds majority is an arbitrary number that would not necessarily protect minority interests from majority passions. It would be virtually impossible to show that the goals of the Guarantee Clause would not be better served by a three-quarters majority, or a less-restrictive sixty percent majority.

Alternatively, Congress could enact a nationwide single subject rule, requiring that each initiative be limited to a single legislative proposal. This proposal addresses the possibility of voter confusion in lawmaking by initiative. However, Congress would need to make a strained interpretation of the Guarantee Clause to find that its purpose is to prevent voter confusion. While voter confusion is certainly a byproduct of direct democracy, Madison appeared more concerned with passionate and nondeliberative lawmaking. On the other hand, the Framers could not have anticipated the thick ballot pamphlets and aggressive advertising campaigns that accompany initiative lawmaking. Furthermore, since the political question doctrine effectively designates Congress as the primary interpreter of the Guarantee Clause, the Supreme Court should uphold any plausible interpretation of the provision.

Even if Congress can plausibly interpret the Guarantee Clause to prohibit forms of government that create voter confusion, it still must demonstrate that its reforms are remedial. Here, Congress must show that voters are indeed confused about the meaning of a yes or no vote and that a single subject rule would remedy this confusion. While evidence of voter confusion has been put forward, it would be difficult to show that the single subject rule would remedy this confusion. Indeed, several states, including California, (138) already have a single subject rule. Congress would face a difficult task in demonstrating that these state laws actually remedy the voter confusion. Rather, it is more likely that concerns about federal interference in state lawmaking would outweigh the remedial benefits of a nationwide single subject rule.

C. Prohibition on Initiatives Based on Subject Matter

Rather than prohibiting all initiative lawmaking, Congress may prefer to restrict initiative lawmaking based on subject matter. Ordinarily, states can enact legislation freely, so long as they do not violate an independent provision of the Constitution. Here, Congress would permit lawmaking on certain subject matters if enacted by a state legislature, yet would deem the same state law to violate the Guarantee Clause if it were enacted by initiative. Since the Guarantee Clause is silent as to subject matter, Congress must justify this distinction based on the purpose served by guaranteeing a "republican form of government."

This type of reform is not as "clean" as the nationwide ban on state lawmaking not enacted by representative government. However, it is not unprecedented to interpret a provision of the Constitution based on its purpose, rather than its precise text. The Equal Protection Clause of the Fourteenth Amendment, for example, permits legislation that treats members of different races differently in order to remedy the effects of past discrimination. (139) Thus Congress should be permitted to enact reforms based on the purpose of the Guarantee Clause. Congress must demonstrate that the restriction based on subject matter would indeed serve the purpose intended by the republican form of government provision. Restrictions on initiative lawmaking based on subject matter that are over- or underinclusive may violate state sovereignty and thus fail for lack of congruence and proportionality.

1. Identifiable groups.

Congress could invalidate initiatives that place unique burdens on "identifiable groups" such as gays and non-English speakers that are not considered "suspect classes" under the Court's equal protection jurisprudence. This proposal, discussed above, would address the widespread concern that initiative lawmaking poses a threat to minority groups and individual rights. Statutes that classify identifiable groups are normally evaluated under the Equal Protection Clause of the Fourteenth Amendment. Under equal protection analysis, statutes using classifications based on a "suspect class" must comply with heightened scrutiny. Of course, courts may strike down citizen initiatives that do not burden a "suspect class" where such statutes are motivated by animus or fail rational basis review. (140) Here, Congress would be expanding the scope of equal protection with respect to initiative lawmaking. Indeed, all classifications would be "suspect" and invalid regardless of motivation.

Congress could support this reform by interpreting the purpose of the Guarantee Clause as protecting minority and individual rights against impassioned lawmaking by the majority. Congress could readily demonstrate that this reform would not violate horizontal separation of powers. Congress may not prohibit state laws passed by the legislature burdening identifiable groups under its Fourteenth Amendment enforcement powers because such reforms would fail the test of "congruence and proportionality." However, under its Guarantee Clause authority, Congress could protect "identifiable groups" without violating the Court's authority to interpret the substantive contours of the Equal Protection Clause.

Congress' greatest hurdle in enacting a prohibition on initiatives burdening "identifiable groups" would be to show that it is indeed remedying the "tyranny of the majority" caused by initiative lawmaking. If Congress exceeds this remedial purpose, it risks violating state sovereignty. First, the reform may be underinclusive; state legislators may also pass laws motivated by impassioned or biased attitudes towards identifiable groups, yet the Guarantee Clause probably does not authorize an intrusion into impassioned lawmaking by state legislatures. Congress may be able to overcome this problem of underinclusiveness by appropriate factfinding. Thus Congress might insulate its statute by making findings that "English-only," "victims' rights," or "defense of marriage" initiatives are actually motivated by animus or impassioned and rash decisionmaking. Although the motivations of voters in the ballot box are typically protected by privacy considerations, (141) Congress could evaluate initiative advertising campaigns and public opinion polls to make findings of impassioned lawmaking inconsistent with the Guarantee Clause.

Second, this type of reform may be overinclusive since it would prohibit the use of all classifications in initiatives regardless of whether their subject matter invites impassioned lawmaking in derogation of minority interests. For example, initiatives burdening "manufacturers engaged in persistent environmental pollution" may be prohibited under this reform. Thus, a statute protecting "identifiable groups" may sweep too broadly to be "congruent and proportional" to the goals of the Guarantee Clause, thereby infringing on state sovereignty. On the other hand, perhaps such manufacturers need protection from initiative lawmaking just as much as "unpopular groups" such as criminal defendants and non-English speakers. Alternatively, Congress could carefully draft its statute to exclude groups, such as businesses, that can adequately protect their interests in the political process from the definition of "identifiable groups."

2. Instrumentalities of state government.

In another type of subject matter restriction, Congress could prohibit all initiative lawmaking except that which concerns the instrumentalities of state government. This type of initiative lawmaking would include reforms that state legislators have a natural disincentive to pass, such as term limits, campaign finance reform, and the power to recall elected officials. Congress would justify this reform by interpreting "republican government" to mean primarily representative democracy and to prohibit self-interested lawmaking. Under this interpretation, all initiative lawmaking would be prohibited since it does not involve representative democracy and because layvoters are, by definition, self-interested since they are accountable only to themselves. On the subject of governmental reforms, however, voters are probably less self-interested than most state legislators. Congress would therefore authorize initiative lawmaking for the limited purpose of reforming state government.

This type of subject matter-based restriction would be vulnerable to attack for being insufficiently tailored to remedy the problem of self-interested lawmaking. State legislators do not necessarily vote in a self-interested manner on the issues of governmental reform. Indeed, perhaps it is preferable to give legislators the benefit of the doubt that they represent their constituencies regardless of the subject matter of individual proposals. Congress may be able to address this concern with sufficient factfinding. For example, a 1998 report by the U.S. Term Limits Foundation found that state government officials have "actively sought to prevent term-limits measures from being voted upon, sued the initiatives after becoming law, and attempted to alter term-limits laws in the backrooms of state capitols." (142) Congress would need to demonstrate with factfinding that state legislatures cease being "republican" when faced with certain subjects.

VII. CONCLUSION

If the states are indeed laboratories, then it appears someone left the Bunsen burner on too long. The initiative process is usurping the role of representative democracy. Unaccountable and largely uninformed voters are empowered by the initiative to control state fiscal policy and alter individual rights. There is growing support for reforming the initiative process, not just from academics, but also among the voting public itself. For example, a 1997 Field Institute poll of over one thousand California voters found that fifty-nine percent of those surveyed said that initiatives "reflect the concerns ... of organized special interests," while only nineteen percent said they reflect the concerns of the average voter. (143) The group also recognized that the initiative process has severed ties with its populist and progressive foundations, as more than three-quarters favored limits on the amount of money that can be spent by supporters or opponents of the propositions. (144) But voters continue to harbor deep distrust of the legislature. Polls indicate that overwhelming support for the initiative power remains, with eighty-four percent of voters polled in Washington and seventy-four percent in California supporting the initiative power. (145) In this climate, it would be politically difficult, if not impossible, for state legislators to revoke the initiative power.

Congress would certainly face similar political hurdles if it sought to restrict initiative lawmaking in the states. Given the growing power of the initiative and its tenuous links to republican government, Congress will soon have a duty to surmount these hurdles. The United States is obligated under the Guarantee Clause to enforce the guarantee of the republican form of government in the states. Under the political question doctrine, the Supreme Court has affirmed that the Guarantee Clause confers upon Congress a positive grant of legislative power. Congress may interpret the Guarantee Clause to find that state initiative lawmaking is inconsistent with republican government and enforce remedial reforms against the states without violating horizontal separation of powers or federalism.

Does this mean that Congress may both define and enforce its power, or have its cake and eat it too? Not quite. Congress must act under the assumption that the Court will reverse Pacific States in order to assess the constitutionality of Congress' reform statute. Although Congress may interpret the Guarantee Clause "in the first instance" without violating separation of powers, its interpretation must be plausible. Furthermore, Congress' reforms must be remedial and closely tailored to the state violation. Federalism prevents Congress from picking and choosing which types of state initiatives are constitutionally permissible, since state lawmaking lies at the heart of state sovereignty. Congress may plausibly interpret "republican form of government" to include only representative democracy, and there is ample evidence that the Framers intended this interpretation. Accordingly, Congress may prohibit all initiative lawmaking in the states. Congress faces stronger federalism-based limitations if it uses its Guarantee Clause authority to permit initiatives on certain subjects, while prohibiting others. Congress may overcome these limitations so long as it can demonstrate with factfinding that its subject matter restrictions are tailored to be "congruent and proportional" to the purposes of the Guarantee Clause. These reforms would fundamentally alter the mode of lawmaking in the states--placing the legislative power back in the hands of republican government.

(1.) The initiative permits voters to originate, by petition, statutes, or constitutional amendments, which are submitted directly to the people for approval. The referendum, its closely related cousin, allows voters to demand, by petition, that a statute passed by the legislature be put on the ballot for approval or revocation. In this paper I refer primarily to the initiative, which has been the primary vehicle of direct democracy in the past two decades. The initiative is in the most tension with representative democracy since it allows complete bypass of the legislature. However, the referendum may also undermine representative democracy since it allows legislators to "pass the buck" on difficult public policy choices. See Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1574 (1990).

(2.) See DAVID S. BRODER, DEMOCRACY DERAILED 3-4 (2000).

(3.) Journalist David Broder reports that the initiative is "enormously popular with the voters" in every state where polling numbers are available. For example, recent polls in Washington and California have found that state voters support the initiative power at rates of 84 percent and 74 percent, respectively. See id. at 208.

(4.) See generally id. at 23-41 (describing the progressive movement that spawned the initiative power).

(5.) See Marci A. Hamilton, The People: The Least Accountable Branch, 4 U. CHI. C. SCH. ROUNDTABLE 13 (1997).

(6.) See, e.g., Hans A. Linde, Practicing Theory: The Forgotten Law of Initiative Lawmaking, 45 UCLA L. REV. 1735, 1755 (1998) (distinguishing fiscal initiatives that preempt representative government from more preferable initiatives that reform state government).

(7.) See, e.g., Catherine A. Rogers & David L. Faigman, "And to the Republic for Which It Stands": Guaranteeing a Republican Form of Government, 23 HASTINGS CONST. L.Q. 1057 (1996).

(8.) U.S. CONST. art. IV, [section] 4.

(9.) 223 U.S. 118 (1912).

(10.) Linde, supra note 6, at 1747 (referring to the default by state tribunals, which have followed the Supreme Court in holding the Guarantee Clause nonjusticiable).

(11.) Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. COLO. L. REV. 849, 875-78 (1994).

(12.) Id. at 878.

(13.) Id.

(14.) See Elizabeth R. Leong, Ballot Initiatives & Identifiable Minorities: A Textual Call to Congress, 28 RUTGERS L.J. 677 (1997).

(15.) Id. at 707.

(16.) Id.

(17.) Id. at 708.

(18.) Id. at 707.

(19.) See New York v. United States, 505 U.S. 144, 183-86 (1992) (treating the justiciability of the Guarantee Clause as an open question but stating that even if the claim were justiciable, the federal statute at issue did not deny the states a republican form of government).

(20.) U.S. CONST. art. I, [section] 8, cl. 18.

(21.) 469 U.S. 528 (1985).

(22.) 521 U.S. 507, 520 (1997).

(23.) See JOSEPH F. ZIMMERMAN, THE INITIATIVE: CITIZEN LAW-MAKING 6 (1999).

(24.) See JOHN M. ALLSWANG, THE INITIATIVE AND REFERENDUM IN CALIFORNIA, 1898-1998 (2000).

(25.) Compare CAL. CONST. art. XVIII, [section] 3 (authorizing constitutional amendment by initiative), with CAL. CONST. art XVIII, [subsection] 1, 2, 4 (requiring two-thirds vote of both legislative branches and approval of the voters to amend the constitution).

(26.) See ALLSWANG, supra note 24, at 2.

(27.) See id. at 2.

(28.) See BRODER, supra note 2, at 14.

(29.) See Philip P. Frickey, The Communion of Strangers: Representative Government, Direct Democracy, and the Privatization of the Public Sphere, 34 WILLAMETTE L. REV. 421, 432 (1998).

(30). See ALLSWANG, supra note 24, at 4.

(31.) ZIMMERMAN, supra note 23, at 7.

(32.) See ALLSWANG, supra note 24, at 3-4.

(33.) See also ALLSWANG, supra note 24. Compare CAL. CONST. art. XVIII, [section] 3 (authorizing constitutional amendment by initiative given voter approval by simple majority), with CAL. CONST. art. XVIII, [subsection] 1, 2, 4 (requiring two-thirds vote of both legislative branches and approval of the voters to amend the constitution).

(34.) See BRODER, supra note 2, at 222.

(35.) See id. at 45.

(36.) By one estimate, the California legislature controls only approximately eight percent of the state budget as a result of initiative taxing and spending measures. See Frickey, supra note 29, at 430; Lionel Barber, Californian Legislators Set to Lose a Prop, FIN. TIMES, Nov. 3, 1990, at 2.

(37.) See BRODER, supra note 2, at 17-18.

(38.) Frickey, supra note 29, at 433.

(39.) See Eule, supra note 1, at 1526.

(40.) THE FEDERALIST NO. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).

(41.) See id. at 83.

(42.) Id. at 82.

(43.) Id. at 81-82.

(44.) See 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION 406 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott & Co., 2d ed. 1863); Eule, supra note 1, at 1540.

(45.) See Deborah Jones Merritt, The Guarantee Clause and State Automony: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988); see also Printz v. United States, 521 U.S. 898, 919 (1997) (identifying the Guarantee Clause as a source of state sovereignty); New York v. United States, 505 U.S. 144, 183 (1992) (same).

(46.) See, e.g., Derrick A. Bell, The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1 (1978) (arguing that the referendum process threatens minority rights); Eule, supra note 1, at 1551-52 (arguing direct democracy poses a structural threat to minority rights); Frickey, supra note 29, at 442 (discussing rate of passage of anti-civil rights initiatives); Hamilton, supra note 5, at 13 (describing direct democracy as inviting majority tyranny); Hans A. Linde, Who is Responsible for Republican Government?, 65 U. COLO. L. REV. 709, 709 (1994) (noting that initiatives force communities to choose sides between dominant majorities and identifiable minorities in a way that elected representatives seek to avoid); John F. Niblock, Anti-Gay Initiatives: A Call for Heightened Judicial Scrutiny, 41 UCLA L. REV. 153, 189 (1993) (arguing that ballot initiatives are a means of channeling bigotry, discrimination and prejudice towards disfavored groups); Mihui Pak, The Counter-Majoritarian Difficulty in Focus: Judicial Review of Initiatives, 32 COLUM. J.L. & SOC. PROBS. 237, 257-58 (1999) (noting that initiatives are likely to disadvantage disfavored groups)..

(47.) See Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 AM. J. POL. SCI. 245, 254 (1997).

(48.) See id.

(49.) See Pak, supra note 46, at 254.

(50.) Oregon's pamphlet, for example, was 247 pages long in 1996. See Frickey, supra note 29, at 437.

(51.) See Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 128 (1995).

(52.) See id. at 129.

(53.) See Hamilton, supra note 5, at 12.

(54.) See Eule, supra note 1, at 1561.

(55.) See Hamilton, supra note 5.

(56.) See Frickey, supra note 29, at 442.

(57.) See Stephen Salvucci, Say What You Mean and Mean What You Say: The Interpretation of Initiatives in California, 71 S. CAL. L. REV. 871, 879-80 (1998).

(58.) See, e.g., New State Ice Co. v. Leibmann, 285 U.S. 262, 310-11 (1932) (Brandeis, J., dissenting) (emphasizing experimentation by state governments as valuable to both states and the federal government).

(59.) Initiatives have been credited with increasing voter turnout and making the legislature more responsive to the public. See BRODER, supra note 2, at 205, 209.

(60.) See, e.g., City of Rome v. United States, 472 F. Supp. 221, 241 (D.D.C. 1979) (suggesting in dicta that the Voting Rights Act might be a proper exercise of congressional power under the Guarantee Clause), aff'd, 446 U.S. 156 (1980).

(61.) 223 U.S. 118 (1912).

(62.) Id. at 137-38.

(63.) Id. at 151.

(64.) See, e.g., Chemerinsky, supra note 11, at 863-69.

(65.) 48 U.S. 1 (1849) (holding that the decision whether to recognize a charter government in Rhode Island is a political question for Congress under the Guarantee Clause). Professor Chemerinsky also criticizes the Court's use of the political question doctrine in Luther v. Borden, but also notes the case is distinguishable from Pacific States. Chemerinsky, supra note 11, at 861-62, 872.

(66.) See Chemerinsky, supra note 11, at 879. But see Gilligan v. Morgan, 413 U.S. 1 (1973) (declaring nonjusticiable a challenge to the training of the Ohio National Guard).

(67.) See, e.g., Merritt, supra note 45, at 70-71.

(68.) See, e.g., Hamilton, supra note 5, at 13-14 (calling upon federal courts to restrict initiative lawmaking); Linde, supra note 6, at 1747-51 (1998) (arguing that despite its nonjusticiability in federal courts, the Guarantee Clause should be justiciable in state courts).

(69.) New York v. United States, 505 U.S. 144, 183-86 (1992) (treating the justiciability of the Guarantee Clause as an open question but stating that even if the claim were justiciable, the federal statute did not deny states a republican form of government). Governor Pete Wilson of California seized upon the dicta in New York when he brought suit in federal court alleging that federal immigration policy forced the state to spend money that it would otherwise not have had to spend, thereby depriving it of a republican form of government. See California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) (upholding the dismissal of California's Guarantee Clause claim where, even if the Guarantee Clause were justiciable, the state failed to provide more that a "mere bare contention that the federal government's policies deny California a republican form of government").

(70.) See Merritt, supra note 45, at 23 (quoting Letter from John Adams to Mercy Warren (July 20, 1807)).

(71.) THE FEDERALIST NO. 10, supra note 40.

(72.) Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749 (1994) (arguing the Guarantee Clause is more plausibly an affirmation of popular sovereignty than a countermajoritarian restriction on the form of state government).

(73.) U.S. CONST. art. IV, [section] 4.

(74.) Linde, supra note 46, at 710.

(75.) Id.

(76.) Id.

(77.) U.S. CONST. art. I, [section] 8, cl. 18.

(78.) 17 U.S. (4 Wheat.) 316 (1819) (upholding Congress' power to create a national bank as reasonably related to Congress' power to raise revenue).

(79.) See U.S. CONST. art. IV, [section] 3, cl. 1 ("New States may be admitted by the Congress into this Union....").

(80.) Leong proposes the following statutory language:
 An Act, to implement the protections of the United States Constitution, to
 assure the right of citizens of the United States to a republican form of
 government guaranteed by the Constitution, no voter-initiated ballot
 measure, including those which propose a state statute or state
 constitutional amendment, that uniquely burdens a member of an identifiable
 group traditionally the subject of arbitrary or invidious discrimination,
 whether locally, regionally, or nationally defined, or that has been
 popularly enacted to avoid the protective structures of a republican form
 of government, shall be presumed valid.


Leong, supra note 14, at 707. Leong defines "identifiable group" as "a group which may be identified because of some immutable or overtly obvious condition, including but not limited to such status as illegitimacy, homosexuality, language proficiency, or military duty." Id.

(81.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

(82.) Id.

(83.) See Cooper v. Aaron, 358 U.S. 1, 18 (1958) ("Marbury v. Madison ... declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system.").

(84.) U.S. CONST. amend. XIV, [section] 5; see also U.S. CONST. amend. XIII, [section] 2 ("Congress shall have power to enforce this article by appropriate legislation."); U.S. CONST. amend. XV, [section] 2 (same).

(85.) See Coleman v. Miller, 307 U.S. 433 (1939) (plurality).

(86.) 369 U.S. 186 (1962).

(87.) Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 19 (1971).

(88.) Baker, 369 U.S. at 297 (Frankfurter, J., dissenting).

(89.) See, e.g., Mountain Timber Co. v. Washington, 243 U.S. 219, 233 (1916) ("As has been decided repeatedly, the question whether this guaranty has been violated is not a judicial but a political question, committed to Congress and not the courts.").

(90.) 384 U.S. 641 (1966).

(91.) Id. at 649.

(92.) Id. at 648.

(93.) Id. at 651 n.10.

(94.) Id. at 649.

(95.) Id. at 653.

(96.) See William Cohen, Congressional Power to Interpret Due Process and Equal Protection, 27 STAN. L. REV. 603, 606-08 (1975) (criticizing the "ratchet theory" in Katzenbach v. Morgan).

(97.) 521 U.S. 507 (1997).

(98.) 494 U.S. 872 (1990).

(99.) City of Boerne, 521 U.S. at 528-29.

(100.) Id. at 520.

(101.) Id. at 536 (quoting Katzenbach, 384 U.S. at 651).

(102.) See generally LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW [section] 3-4, at 260-64 (3d ed. 2000) (discussing judicially underenforced norms).

(103.) See Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1221 (1978).

(104.) City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).

(105.) Id. at 530 ("In contrast to the record which confronted Congress and the Judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.").

(106.) Id. at 526-27.

(107.) This phrase was coined by then-Associate Justice Rehnquist. Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting).

(108.) 521 U.S. 898 (1997) (holding that Congress may not compel the states to administer a federal regulatory program under the Constitution's provision for dual sovereignty).

(109.) Id. at 919.

(110.) 221 U.S. 559 (1911).

(111.) U.S. CONST. amend. X.

(112.) See New York, 505 U.S. at 156.

(113.) See National League of Cities v. Usury, 426 U.S. 833 (1976) (articulating traditional governmental function test), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (rejecting the traditional governmental function test as unworkable).

(114.) See Garcia, 469 U.S. at 530-31.

(115.) See id. at 550-51.

(116.) Id. at 556.

(117.) See id.

(118.) See BRODER, supra note 2, at 43-89.

(119.) See ALLSWANG, supra note 24, at 4.

(120.) Id. at 3.

(121.) See Chemerinsky, supra note 11, at 876 (discussing the natural disincentives to congressional enforcement of the Guarantee Clause such as lack of interest by members of Congress in state-specific problems, members' direct personal stake in election practices, and lack of national attention).

(122.) City of Boerne, 521 U.S. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)).

(123.) See Fitzpatrick, 427 U.S. at 456 (holding that the Eleventh Amendment and the principle of state sovereign immunity which it embodies are necessarily limited by the enforcement provisions of Section 5 of the Fourteenth Amendment).

(124.) See City of Boerne, 521 U.S. at 520.

(125.) Id. at 536.

(126.) 121 S. Ct. 955 (2001).

(127.) See id. at 966-67.

(128.) 383 U.S. 301, 315 (1966).

(129.) City of Boerne, 521 U.S. at 532-33.

(130.) Id. at 530-32.

(131.) See Garrett, 121 S. Ct. at 964-65.

(132.) TRIBE, supra note 102, [section] 5-12 at 909.

(133.) See New York, 505 U.S. at 183.

(134.) See Printz, 521 U.S. at 919.

(135.) See Amar, supra note 72.

(136.) See Linde, supra note 46, at 710.

(137.) See Linde, supra note 6, at 1755 (differentiating lawmaking by referenda from forms of direct democracy that preempt representative government).

(138.) See CAL. CONST. art. II, [section] 8, cl. (d).

(139.) See, e.g., Richmond v. J.A. Croson, 488 U.S. 469, 493 (1989) (noting that classifications based on race are permissible if they meet strict scrutiny and are reserved for remedial settings).

(140.) See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (holding unconstitutional a Colorado constitutional amendment passed by voter initiative that denied gays protected status).

(141.) See Arthur v. City of Toledo, 782 F.2d 565, 573 (6th Cir. 1986) (barring judicial inquiry into electoral motivation unless racial discrimination is the only possible motivation behind referendum results).

(142.) See BRODER, supra note 2, at 203.

(143.) See ALLSWANG, supra note 24, at 239.

(144.) See id. at 242.

(145.) See BRODER, supra note 2, at 208.

Catherine Engberg, Clerk to the Honorable Barry T. Moskowitz, United States District Court, Southern District of California. J.D., Stanford Law School, 2001; B.S., Stanford University, 1995. I would like to thank Professor Tom Campbell for providing thoughtful assistance in my research and for reviewing earlier drafts of this Note. Steven Wang, Alexis Leland and the rest of the editing team of the Stanford Law Review have greatly improved this Note with their hard work and careful editing.
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