Subject: Direct Democracy in Court System

What direct-democratic principles can and should be incorporated into the US's current court system?

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Dan Jeffs - reply
September 29, 2008

Mr. Lapp,

Thank you for your inquiry. Direct democracy principles should be incorporated into the United States judicial system as follows:

Instead of the president nominating federal judges and the Senate either confirming or rejecting nominees, the most qualified judicial candidates should be nominated by a judicial council, including the American Bar Association, and selected/elected by voters.

Rather than being appointed for life, federal judges should be subject to voter confirmation and approval to continue on the bench at least as often as every four years, probably at presidential election time.

Lastly, voters should have the right to recall federal judges.

This entire process would reduce or eliminate, or at least control the appointment of federal judges on the basis of social/political ideology, and thus reduce and/or eliminate judicial activism and legislating from the bench. The rule of law and strict interpretation of the Constitution would prevail, as it should and as was indented by the founders.

Of course, the above would require an amendment to the Constitution.

I hope this answers your question. If you have any further questions, please do not hesitate to contact me.

Note: I noticed that your inquiry comes from an institution of education. Please advise me what you are working on.

Best regards,

Daniel B. Jeffs, founder
The Direct Democracy Center

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From James Lapp
September 29, 2008

Mr. Jeffs,

Thank you for your helpful detailed reply.

I am an undergraduate freshman and am trying to create a reformed system that strips the court of its "right" of constitutional review and redirects this authority to the public through means of ballot initiatives and referendums. I am having difficulty reconciling the absence of judicial review with a constitution. Isn't a constitution the antithesis of democracy? Why have one when the people can ratify a law that blatantly violates constitutional rights and there is no authority that can invalidate the measure?

The Supreme Court of Switzerland does not have the power of judicial review yet that nation has a constitution. How does this work? I have hypothesized a variety of legal systems over the past week. I believe the one outlined below is the most practical.

The Supreme Court of the United States would have the right of judicial review only in cases involving federal laws. The Bill of Rights would not apply to the states; state constitutions would take precedent. If, for example, the national Congress passed a bill banning abortion, the court could strike it down. If a state banned abortion, however, the federal court has no authority to invalidate the law. Therefore, if someone wished to challenge a state law, he must do it on the grounds of the state constitution, and the state supreme court would be the "court of last resort." However, the state supreme court would not have the final say on the validity of a law. An amendment to the state constitution could be proposed by the people through the petition and referendum process. The people could also propose an amendment to the national constitution. However this would require a double majority; that is, both a majority of the popular vote and the states must be met for the amendment to pass.

I would also incorporate your system of electing judges. Furthermore, voting would be mandatory (as it is in Australia). This would prevent a small % of the population from passing a measure that would affect the entire citizenry. If a person does not wish to participate in the process, he may designate his representative to vote for him as a proxy.

Comments or suggestions?

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Dan Jeffs - Reply
September 29, 2008

A constitution is not the antithesis of democracy if it is a democratic constitution. The fundamentals of the original construction of our constitution are sound. Of course, it is necessary for constitutional judicial review of laws to protect people's fundamental rights and freedoms. Those rights that are protected in the Bill of Rights and other amendments.

Indeed, the people should have the right of ballot initiatives and referendums, and the right to amend the constitution without violating fundamental protections, rights and freedoms. That preservation of rights provision would be necessary in reforming the system. Our direct democracy reform proposal includes the protection.

I don't see a way around judicial constitutional review to enforce rights outlined in the constitution. The judiciary cannot create new rights or remove existing rights. In a judicial reform, judges could be removed for such actions and those actions invalidated. However, you would still need the authority of judicial review to prevent the people from ratifying laws that violate people's constitutional rights.

Now I have a better understanding of what you have in mind. Switzerland's system of government is much like our own. Their Federal Tribunal does not have the power to strike down unconstitutional laws. However, I believe the voters do have that power by referendum.