Volume:13 Issue 2, 2004

Symposium on Direct Democracy

Introduction

GAIL HERIOT*

California did not invent direct democracy. For that honor, one must look beyond the New England town meeting, beyond the Swiss canton, and perhaps even beyond the ancient Athenian city-state. But California is surely at the center of direct democracy today. Its population of about thirty five million makes it easily the largest political entity ever to experiment with the notion of direct legislation—more than a hundred times the size of Athens in the fourth century B.C. With approximately twenty million citizens over the age of eighteen, it has more than six hundred times the number of Athens' citizens.1

It is not just California's size, however, that makes it special. California's political climate is...well...different from any other state's. Californians are not a sedate people. Far more so than the citizens of any other state, Californians have proven themselves willing to take on the tough and controversial issues that legislatures have assiduously avoided–some would say too willing–through voter initiatives and other direct democracy mechanisms. Over the last generation, California has captured national attention with initiatives like Proposition 13 (property tax relief) in 1978, Proposition 140 (term limits) in 1990, Proposition 187 (public benefits for illegal immigrants) in 1994, Proposition 209 (state-sponsored racial and gender preferences) in 1996, Proposition 227 (bilingual education) in 1998 and Proposition 22 (gay marriage) in 2000.

It is entirely fitting therefore that this Symposium on Direct Democracy should take place in California (and in San Diego in particular since San Diego is the California metropolitan area farthest from the two great seats of political power, Washington and Sacramento ). From June 5th to 7th, 2003, scholars Lynn Baker of the University of Texas, Sherman Clark of the University of Michigan, Clayton Gillette of New York University, Marci Hamilton of Yeshiva University, Richard L. Hasen of Loyola Law School of Los Angeles, Dan Lowenstein of the University of California at Los Angeles, Nelson Lund of George Mason University, Ken Masugi of the Claremont Institute, John Matsusaka of the University of Southern California, Mathew McCubbins of the University of California at San Diego and the University of San Diego, Maimon Schwarzschild of the University of San Diego, and M. Dane Waters of the Initiative and Referendum Institute at the University of Southern California (with an assist from John H. Fund of the Wall Street Journal) gathered with me at the University of San Diego School of Law to discuss direct democracy. Has this great Progressive Era experiment been a successful one? What are the strengths of the initiative and referendum process? What are its weaknesses? Does it need some reining in as its critics have suggested? Or is it the critics themselves who have become overly exuberant?

The articles and comments that follow in this issue of the Journal of Contemporary Legal Issues are the result of that symposium. Each provides a different perspective on this immensely complicated issue. While they refine and focus the debate, they are neither the first nor the last word on direct democracy. The former honor may go to Plato, whose decidedly unsympathetic view tainted the word “democracy” in the minds of many for most of history.2 The latter honor I do not expect to be conferred in my lifetime (or in anyone else's).

Indeed, it is the usual fate of scholars to be a step behind in attempting to critique the real world. As we met here in San Diego , signature gatherers were already standing in front of hardware stores, grocery stores, and ball parks all over California . Their mission was to recall Governor Gray Davis–a mission they accomplished on October 7, 2003 when voters backed the recall by a margin of 55% to 45% and swept political novice Arnold Schwarzenegger into office.3 In the end, voters had achieved another California first: They had used their power to set an otherwise unscheduled election to oust the most significant elected state official in California . Yet the recall election–an interesting hybrid of direct and representational democracy—is barely mentioned in any of the symposium articles. We just didn't see it coming. Even more recently, Governor Schwarzenegger has been teaching us all a few new tricks in direct democracy. When the California legislature balked at passing his proposal to reform workers' compensation, he threatened to go to the people, appearing at a local Costco store, clipboard in hand. Just the threat was enough to cow the legislature, which then passed the proposal with only six dissenting votes.4 Perhaps another direct democracy symposium should be convened soon to study these new events.

I would like to thank Dean Daniel Rodriguez for making this Symposium on Direct Democracy possible. I would also like to thank the participants, including student editors Mathieu Blackston, Rachael Downey, Michelle Hargrove, Vanessa Locklin, and Shawn Nevill. Thanks must also go to Brigid Bennett, Kimberly Charles, Ina Levy and Sarah Moore for their capable administrative assistance. Most of all, I would like to thank the people of California—of all political stripes—for keeping things interesting for us. This issue is for you.

1. Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes: Structure, Principles and Ideology (1999).

2. Plato, The Republic (H.D.P. Lee trans., Penquin Books 1971).

3. The San Diego Union-Tribune, California's Recall Election , available at http://www.signonsandiego.com/news/politics/recall (last visited May 27, 2004 ).

4. Josh Benson, Governors Take Initiative, The Washington Post, May 23, 2004 , available at http://www.washington.post.com/ac2/wp-dyn/A47243-2004May22? language- printer.

* Professor of Law, University of San Diego School of Law, Moderator & Faculty General Editor of the Journal of Contemporary Legal Issues' Symposium on Direct Democracy (Volume 13).