Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy

The use of direct democracy is at its highest level in more than one hundred years.' The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and environmental policy. The prominence of direct democracy in American government is likely to increase in the foreseeable future as a result of widespread public support for the process, as well as technological innovations, like the Internet, that promise virtually instant access to voters' preferences. Not surprisingly, as the use of direct democracy has come to play a more prominent role in the formulation of public policy, this type of lawmaking has also received closer scrutiny from legal scholars, governmental commissions, and the media.

Although direct democracy undoubtedly has its supporters among these ranks, a number of commentators have criticized initiative lawmaking on a variety of theoretical and practical grounds. Some advocate the outright abolition of initiative lawmaking on constitutional grounds;