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Commentary: How 'We the People' are overturning the Supreme Court

Xiao Wang and Michael P. Bellis, Chicago Tribune on

Published in Op Eds

Who interprets the Constitution? For many decades, the answer to this question was almost always the U.S. Supreme Court. But in the past few years, a dramatic shift has started taking place. Increasingly, voters are taking constitutional interpretation into their own hands — and our democracy is better for it.

When the Supreme Court overturned Roe v. Wade and 50 years of precedent in last year’s Dobbs v. Jackson Women’s Health Center decision, the conservative majority voted to send the issue back to the states. In response, Kansas voters made headlines in August by rejecting a proposed state constitutional amendment that would have restricted the right to abortion.

In the months that followed, five other states — California, Michigan, Kentucky, Montana and Vermont — put the issue of abortion on the ballot. Reproductive choice triumphed at every turn. California, Michigan and Vermont’s constitutions now enshrine a right to reproductive autonomy, while Kentuckians and Montanans rejected attempts to curb abortion rights.

In November, Ohioans joined the chorus, with voters electing to amend their state constitution to protect the right to abortion before viability — essentially restoring the same legal protections from Roe that Dobbs sought to take away.

Abortion isn’t the only battleground where voters have pushed back directly against the Supreme Court. In the first Obamacare challenge— Remember those halcyon days? — the court is remembered for upholding the Affordable Care Act’s mandate that all Americans carry health insurance. But the same decision also invalidated Congress’ attempt to expand Medicaid to provide health care to more low-income Americans, holding that legislators had exceeded their constitutional authority in trying to do so. States could, according to the court, voluntarily opt into Medicaid expansion but could not be coerced into doing so by a threat to cut a state’s existing federal Medicaid funding.

Just like Dobbs, the court’s Medicaid ruling proved deeply unpopular. So unpopular, in fact, that over the past six years, Medicaid expansion measures have been on the ballot in seven Republican-controlled states. They have passed in every single one. These statewide initiatives and referendums are commonly referred to in shorthand as direct democracy. Their success has led observers to proclaim that we are entering an unprecedented era of direct democracy. But the origins of initiatives and referendums in fact underscore how potent the tool has always been.

At the turn of the 20th century, the Supreme Court, much like our current court, began issuing a series of intensely polarizing decisions. In Plessy v. Ferguson (1896), it upheld “separate but equal” treatment of African Americans. In Lochner v. New York (1905), it invalidated a state law regulating working hours and conditions. And in Adair v. United States (1908) and Hammer v. Dagenhart (1918), the court threw out as unconstitutional federal laws protecting union rights and prohibiting child labor.

Voters did not stand idly by after these decisions. Nor did they go back to their state legislatures or Congress to push for new legislation. Instead, they created initiative and referendum processes. As our research reveals, of the 26 states that have some form of initiative or referendum process today, 21 established those processes between 1898 and 1918 — that is, between Plessy and Hammer. Critically, voters and political officials repeatedly invoked the Supreme Court’s unpopular opinions as the boogeyman to be dispatched.

During floor debates at the 1912 Ohio Constitutional Convention, for instance, Rep. D.F. Anderson underscored that “nothing was more distressing than to see a bunch of old judges, old men as a rule, set themselves against the manifest and enlightened will of the community in matters of social, economic or commercial progress.”

In 1912, Ohio created a statewide initiative and referendum process during its constitutional convention — the same process that Ohio voters used in the recent abortion vote.

 

There is, in other words, a compelling through line between constitutional past and present. Direct democracy came into being in the United States because voters grew tired of a handful of judges dictating their constitutional rights. Its resurgence today is yet another powerful and important reminder of the people’s veto over the Supreme Court’s federal constitutional decision-making, through the outlet of change at the state level.

In the early 20th century, direct democracy had its opponents, with several politicians claiming that these processes would destroy the sanctity of lawmaking as envisioned by the Founding Fathers. By organizing themselves, voters overcame and overruled these criticisms, opting for a commitment to popular rule.

A similar level of commitment is necessary today. Earlier this year — ahead of the November abortion ballot initiative — Republican legislators in Ohio attempted to raise the threshold to pass such ballot measures from 50% of the vote to 60%, in a purported effort to protect their state constitution.

Ohioans overwhelmingly rejected that measure, with the support of Republicans and Democrats alike. Last year, South Dakota similarly tried to raise the required support threshold ahead of a Medicaid expansion vote. South Dakota’s voters, like Ohio’s, rejected that attempt to curtail their power — and they later approved Medicaid expansion.

But for every Ohio, there’s a Mississippi, whose state Supreme Court declared in 2021 that the state’s initiative and referendum processes were unconstitutional. For every South Dakota, there’s a Missouri, whose governor refused to carry out Medicaid expansion despite the passage of a ballot measure.

The path forward under such circumstances is a sustained and continued dedication to democratic means and norms. Just as in the early 20th century, the fate of democratic governance lies in our own hands. When courts and other officials repeatedly go against popular rule, ballot initiatives and referendums serve as powerful reminders that the first words of the Constitution aren’t “We the Courts” or “We the Politicians.” They are “We the People.”

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Xiao Wang is director of the University of Virginia Supreme Court Litigation Clinic and an assistant professor of law and public policy at the University of Virginia. Michael P. Bellis is a recent graduate of Northwestern University’s Pritzker School of Law.

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©2023 Chicago Tribune. Visit at chicagotribune.com. Distributed by Tribune Content Agency, LLC.

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