Most scholars who have addressed voter initiatives suggest only that the Guarantee Clause requires that the Supreme Court take a more active role in reviewing the constitutionality of state initiative measures. In contrast, we argue in this Essay that the Guarantee Clause establishes a per se prohibition against state initiatives. Part I of this Essay briefly examines the historical origins of the Guarantee Clause and the Founders’ apprehensions of direct democracy. Part II observes how modern state initiatives provide contemporary illustrations of the Founders’ philosophical concerns about direct democracy. Part III concludes that state initiative measures constitute per se violations of the Guarantee Clause and, accordingly, must be summarily rejected. In so concluding, this Essay rejects proposals that courts review direct legislation or certain genres of direct legislation under heightened scrutiny.
Catherine A. Rogers and David L. Faigman, “And to the Republic for Which It Stands”: Guaranteeing a Republican Form of Government, 23 Hastings Const. L.Q. 1057 (1996).