Congress Shall Make No Law...
5:37 PM
Doe v. Reed: Civic Courage and Direct Democracy

In his concurring opinion in Doe v. Reed, Justice Scalia concludes:


Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which . . . campaigns anonymously [ ] and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.


Justice Scalia’s statement should shock any student of history.  Our “Home of the Brave” was birthed by anonymous pamphleteers such as Thomas Paine.  Indeed, our Constitution was ratified only after the anonymous “campaign” by Alexander Hamilton, John Jay and James Madison to sway voters through a series of essays known as The Federalist Papers, which were published in newspapers throughout New York under the pseudonym “Publius.”  Far from being protected from scrutiny, these essays engendered further anonymous campaigns by “Federal Farmer,” “Brutus,” “Cato” and “John DeWitt,” known today as The Anti-Federalist Papers—a campaign that resulted in our Bill of Rights.  Surely no one would suggest that these individuals lacked civic courage or that their endeavors doomed our democracy.  Why should the 137,000 citizens who signed a referendum petition to change state law be any different?


Justice Scalia would rest any distinction on the idea that those engaged in direct democracy are acting as legislators, and making law traditionally has been a public act:  “A voter who signs a referendum petition is therefore exercising legislative power because his signature, somewhat like a vote for or against a bill in the legislature, seeks to affect the legal force of the measure at issue.”


This analogy to the public nature of lawmaking, however, ignores the fundamental distinction between direct and representative democracy.


Our Constitution requires Congress to keep public records of its proceedings and its votes as a check on representative democracy—to ensure that our electors are, in fact, representing their constituents.  However, when the people are directly creating law through the initiative and referendum process, there is no need for checks on accountability and “disclosure.”  Direct democracy is as accountable as it gets.


Although publicly advocating one’s beliefs is admirable, requiring individuals engaged in political speech to forgo their “shield from the tyranny of the majority” (see McIntyre v. Ohio Election Comm’n), not only contravenes our nation’s history, but also the First Amendment.


In our “Home of the Brave,” it is individual speakers—not the government—who choose whether to identify themselves with a particular viewpoint.