Direct versus Representative.

A core principle of democratic theory is the notion that the government derives its legitimacy from the consent of the governed. This principle is modified in a representative democracy in which elected elites function as a safeguard against the possibly capricious will of the majority. Popular sovereignty is further circumscribed by the institution of judicial review, in which judges – who may or may not be popularly elected – are empowered to nullify laws enacted by popularly elected officials. An even more direct challenge to democratic principles occurs when judges rule on the validity of legislation enacted by the people themselves via the initiative and/or referenda process (allowed by 26 states). The extant evidence makes clear that statutes and constitutional amendments enacted through the initiative are frequently contested in court (Emrey 2002). This begs the question, however, of how judicial behavior in such instances compares with the behavior of judges with regard to legislation duly passed by legislative bodies. In this paper, we use a hierarchical modeling strategy to examine this question by analyzing and comparing the exercise of judicial review by state high courts with regard to both direct legislation and republican lawmaking. In doing so, we offer some useful insights on a crucially important but often overlooked aspect of judicial decision making at the state level, and in the process enhance our understanding of (actual or potential) countermajoritarian behavior on the part of such judicial institutions. [ABSTRACT FROM AUTHOR]