Direct Democracy and Judicial Review: a Comparative Study of Us and Swiss Legal Systems

Abstract

In the US, almost half of the states haveestablished direct democracy mechanisms, but thereis a paucity of such mechanisms at the federal level.By contrast, the Swiss system knows extensive directdemocracy at both the cantonal and the federal level,including rights of referendum on laws enacted by theparliament and popular initiatives for constitutionalrevision.This paper focuses on how direct democracymechanisms, such as referendums and citizens’initiatives serving an overarching ideal of publicsovereignty, may inform and affect judicial review. Thepaper also examines certain differences in treatmentbetween federal and state laws when it comes tojudicial review, as the courts will not necessarily applythe same standards despite the existence of similardemocratic mechanisms at both levels.In this contribution, I first argue that none of theexisting systems is fully satisfactory. The status quo inthe Swiss model might be a source of instability andthreaten legal certainty, coherence and transparencyand could ultimately be more harmful to publicsovereignty in that federal acts may in practice be setaside without constitutional basis. As to the US model,the combination of an absence of citizen involvementat the federal level with extensive judicial reviewmight ultimately be deemed as unsatisfactory fromthe perspective of democratic rights.This does not mean however that directdemocracy is somehow superior to representative,or that either of judicial or legislative power shouldprevail over the other. To the contrary, in this paper Iargue that in a federal system all are complementary.Furthermore, I claim that one should recognise thelimits of direct democracy and of judicial review inorder to improve both by striking a balance betweenthem.