The Supreme Court and the Power of the People

03/06/2015 10:57 am ET | Updated May 06, 2015

A good advocate tries to make things simple, and sitting through Monday's U.S. Supreme Court hearing over the constitutionality of Arizona's independent redistricting commission, it was clear -- if there had been any doubt -- that former U.S. Solicitor General Paul Clement is one very good advocate. For Clement, who was representing the Arizona Legislature in its challenge to the commission, the whole of the case turned on a single word: legislature. Because the Constitution says that the "times, places, and manner" of federal elections should be decided in each state by the "legislature thereof," he told the Justices that meant Arizona voters had no right to use a ballot initiative to pass the law creating the commission in 2000. But for all the superficial simplicity of Clement's argument, the history of the Founding Era and the years since suggests the Court should not be so quick to relegate the people to bystanders.

For starters, voters at the state level always have had a substantial role in the legislative process. In fact, at the time of the drafting of the Constitution, many American states had already come to embrace far more direct democracy than the new federal Constitution being created in Philadelphia would. In a number of states, that went so far as giving the people powers like the ability to issue binding letters of instruction to legislators on how to vote. Pennsylvania's radical constitution of 1776 and that of Vermont, likewise, provided that no non-emergency legislation could take effect until there had been an intervening election (elections were annual at the time), giving voters the power to effectively undo legislation by changing who represented them.

These nascent elements of direct democracy were part and parcel of the Framers' world -- and, despite the opportunity, they did not do anything to change that. Early in the American Revolution, indeed, there had been debate about the possibility of having a single, uniform state constitution. Although the idea had support in many quarters, it ultimately fell by the wayside because there was not enough agreement about what it would look like. Some of the founding generation, like John Adams, were concerned that a uniform constitution would come to include more popular elements than would be acceptable in their states. Others wanted more sweeping changes. In the end, they decided to leave it to each state to develop its own arrangements for structuring power.

With this constitutional freedom to go in different directions, states did exactly that. Rhode Island and Connecticut chose to continue using their royal charters, with slight modifications, and would do so well into the nineteenth century. Other states chose far more populist constitutional arrangements. Still others chose a middle ground. Likewise, some states had appointed members in their legislatures. In others, governors and other high officials served as voting members. In other words, legislatures of the day were anything but homogeneous.

However, while early constitutions may have differed considerably, by the early nineteenth century, they almost uniformly began increasingly shifting responsibility for legislation out of the hands of elected politicians and giving it to the citizenry at large.

The reasons for the shift -- are not that different from the forces in our own time that helped drive redistricting reforms like Arizona's. As the nation expanded and became more economically and socially diverse, politics became captured by entrenched factional interests. The clearest way to overcome that was to give the people the power to make laws directly. Thus, on issues like chartering banks, issuing debt, building railroads, and even simply establishing a county seat, state constitutions started to require popular votes for matters that in pre-Revolutionary times could have been enacted by colonial assemblies alone. In Virginia, the state constitution even required a voter role in selecting the rule for apportioning the state into legislative districts.

The tradition of active citizen involvement in legislation reached its peak in early years of the twentieth century when a growing number of states, particularly in the American West, began allowing citizens to propose legislation directly through the initiative and referendum process. In Arizona, the very constitution that Congress approved when it admitted Arizona to the Union in 1912 expressly reserved legislative power to the people.

Since 1904, initiative powers have been used by voters to enact a broad variety of laws governing federal elections. These include laws as diverse as Oregon's law establishing all-mail elections, Mississippi's voter ID law, and an Ohio law that ended straight-party voting. Even Arizona's own controversial law requiring that voters prove their citizenship before being permitted to vote originated as a ballot initiative. In more recent years, initiatives have been used to take mapdrawing power out of the hands of politicians in places like Arizona and California because of a growing sense that politicians' conflict of interest in redistricting was insurmountable.

The Arizona Legislature argues this citizen legislation represents a violent break with the Framers' constitutional vision. But, in fact, it is Clement and the Arizona Legislature who offer the radical interpretation. Accepting the Legislature's constrictive "Schoolhouse Rock" definition of the word "legislature" would mean rewriting history under the guise of literalism to impose a uniform, unchanging definition on states and depriving voters of a role they have had since founding of the country.

That would be antithetical to the diversity of state legislative arrangements at the time of the Constitution and to longstanding American constitutional traditions. The Framers left it to the states to decide how they would make laws. States like Arizona, Illinois, and Ohio long ago used that freedom to give voters the competency to legislate. For more than 100 years, voters have used that power to make laws in the areas where elected politicians are most susceptible to shenanigans and the temptation to rig the rules. Fidelity to the history of the Constitution requires upholding the right of Arizona voters to share in the power to legislate.