Our Founders' Warning: “Every government degenerates when trusted to the rulers of the people alone. The people themselves are its only safe depositories.” (Thomas Jefferson)

Are U.S. Initiatives Constitutionally Legal?

Amendment I grants the right to petition the Government for a redress of grievances: “Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances”. However, the Supreme Court has explained: “nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to … petition require government policymakers to listen or respond to individuals’ communications on public issues.” Moreover, though a signature “petition” may be used to qualify an Initiative, the word “petition” is used as a noun, whereas it has a different meaning as a verb in to “petition” for redress of grievances. Moreover, the People’s right to pass Initiatives into law is a very different issue. In other words, Amendment I says nothing about the People’s right to use Initiatives.
In 1912, the Supreme Court held that a challenge to the constitutionality of a State initiative was not subject to judicial review and dismissed the case for want of jurisdiction. In other words, the Constitution could not resolve the constitutionality of State initiatives and the issue was left in limbo. Nevertheless, this decision has allowed the use of State initiatives without further serious challenge. “Generally, it is recognized that a state government is republican if Congress seats its members” (Vile, p109). Consequently, direct democracy legislation has, by its adoption in State constitutions become virtually accepted de facto as part of the Constitution. However, neither the Constitution nor the Supreme Court have accepted or rejected initiatives or signature petitions, so the issue can be resurrected.
Thus, there is nothing in law that defines Initiatives Constitutionally Legal, or the signature petitions that propose them, are or are not legal in the United States. A Constitutional Amendment is the only way to untie this Constitutional knot.