Rule of law and direct democracy: a strained relationship

A protest outside the United States Supreme Court Rod Lamkey / DPA

In the United States, courts are called after elections, in Germany before them – and in Switzerland hardly ever (until now). The different ways in which democracy and the rule of law interact mask a constant power struggle.

This content was published on November 27, 2020 – 5:00 PM

Bruno Kaufmann

Supported by a whole army of lawyers, the defeated American president, Donald Trump, wanted to file a complaint against the results obtained in more than 3,000 electoral districts (counties) and states. Already on election night, November 4, the Republican candidate for the highest American office demanded that “every legal vote be counted.”

United States: Federal judges in favor of democracy

“There is basically nothing wrong with that,” says Paul Jacob, president of the US conservative NGO Citizens in Charge. “In the United States, the courts mainly come into play after a democratic decision. We have seen that federal judges protect our electoral and voting rights better than local courts. “

Jacob, whose organization has itself turned to federal courts on several occasions, explains that one of the reasons for this is that state judges, unlike federal judges, must be regularly re-elected. “This gives rise to political dependencies and an imbalance between democracy and the rule of law,” he says.

“The Trump campaign continues to be hopeful that it will find a judge who will treat the lawsuits like tweets,” said Justin Levitt, electoral law expert and professor at Loyola Law School. “But on several occasions, every person with a dress that she has met has said, ‘I’m sorry, we respect the laws here.’

However, it happens again and again that plebiscites on substantive issues are subsequently declared invalid by a court – in the United States, citizens have direct democratic rights in most states but not at the federal level.

“In California, nearly a third of referendums are subsequently overturned by a court,” writes political scientist Anna Christmann in Direct democracy and the rule of law* She wrote her doctorate on the subject at the University of Zurich and has been the Greens spokesperson for civic engagement in the lower house of the German parliament since 2017.

Germany: historical experience shapes legal practice

In Germany, too, much ink has been spilled about the tension between the will of the people and the rule of law – albeit under completely different circumstances than in the United States.

“Here in Germany, the courts are mainly active before a democratic decision is taken,” explains Theo Schiller, professor emeritus of political science at the University of Marburg.

“This stems in particular from our historical experience between the two world wars,” adds Schiller, who provides a compelling analysis in his latest book **. “In Germany, the courts play an ambivalent role when it comes to the protection of popular rights.

As a result, many popular initiatives in German municipalities and federal states (like in the United States, there are still no direct democratic rights of the people at federal level in Germany) are overturned by the courts even before the signature collection has not started.

“Motions that concern financial matters or aim to strengthen popular rights are particularly difficult,” notes Schiller, not to mention that in other areas – such as infrastructure and education – the courts are quite willing to allow democratic (direct) opinion. forming process. Thus, according to a recent study by the association Mehr Demokratie (No more democracy), nearly 500 direct democracy procedures have been authorized at the federal level since World War II.

Some 52,000 citizens have signed the Bavarian petition for a rent freeze. In July 2020, the Bavarian Constitutional Court banned the initiative. Stephan Rumpf / Süddeutsche Zeitung

In Schiller’s view, the German practice of prior judicial review has a great advantage over the subsequent court intervention in the United States. “When we collect signatures and vote, we already know with certainty that they will have a binding effect and will not subsequently be declared null and void,” he said.

Switzerland: the people as a constituent

Despite the very different role played by the rule of law in the two democracies, Germany and the United States are similar in that their citizens cannot act as legislators at the federal level. In complete contrast to Switzerland.

“Here, all constitutional changes must be approved by the people and the cantons, but we do not have a constitutional court,” explains Nadja Binder Braun, professor of public law at the University of Basel.

Indeed, in the history of modern Switzerland, only one referendum has subsequently been declared invalid by the Federal Tribunal.

There were also some cases of prior cancellation of popular initiatives at cantonal level (by courts) and at national level (by parliament, in four cases). In spring 2019, the Federal Supreme Court upheld a complaint lodged by an initiative group and annulled the result of a referendum on the “marriage penalty”. The reason was that, according to the court, the government had given incorrect information in its explanations to voters in the voting book.

The Swiss Federal Court declared the vote on the marriage penalty invalid. A new vote is at the discretion of the government. Peter Schneider / Keystone

A much greater challenge for Swiss democracy in the area of ​​rule of law, however, is posed by the conflicts arising from the precedence of human rights, as set out in the European Convention on Human Rights. male, which Switzerland has ratified.

In common: a power struggle

Despite the different practices in developed democratic federal states such as the United States, Germany and Switzerland, the concrete areas of tension between the different powers are ultimately very similar.

In the United States and Germany, Switzerland mainly serves as inspirationExternal link for the introduction of direct democratic popular rights at the federal level, while in Switzerland, legal influences based on the American and German models are more and more noticeable: this concerns in particular the subsequent invalidation of a referendum and the growing role of the European Court of Human Rights, as well as proposals for a more active preliminary examination of popular initiatives to ensure respect for international law.

“Such a preliminary examination would be beneficial for democracy in Switzerland”, is convinced Theo Schiller, because “then, only the initiatives which can effectively be implemented would be put to the vote”.

*Direct democracy and the rule of law: direct democracy and minorities, Wiesbaden (Springer VS) 2012

**Aufbruch zur Demokratie: Die Weimarer Reichsverfassung als Bauplan für eine demokratische Republik, Baden-Baden (Nomos) 2021

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