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Indiana Law Journal

Document Type

Note

Publication Date

Fall 2007

Publication Citation

82 Indiana Law Journal 1125 (2007)

Abstract

This Note argues against strong judicial review of direct democracy. Judicial review has been the dominant answer in legal scholarship for the perceived danger of majoritarian tyranny in any democratic system. But Progressive movements throughout American history, as well as a growing number of respected law professors, have questioned the assumption that courts or even legislatures are better protectors of discrete and insular minorities than the rights-respecting populace. Although the vast majority of legal scholarship still displays a crippling cynicism about popular competence, this view cannot continue to block progressives from participating in initiative campaigns. Exclusive resort to elitist procedural mechanisms begs the question of populism and drives a wedge between law and the people it seeks to protect. The only way forward for progressive agendas is to engage directly with direct democracy, fighting inevitable bad results at their source, rather than merely trying to circumvent the results with appeals to undemocratic courts.

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