The founders’ distrust
In an episode on the invention of the presidency, Harlow Giles Unger describes the House of Representatives as the only body elected directly by the people, and Bob Zadek calls it the People’s House. Unger says the founders gave the House more powers than any other branch: the Speaker determines which bills come up for a vote and which are tabled, the House is the grand jury of the nation, and only the House can impeach or indict other federal officials, including the President. He describes the Speaker as the elect of the elect — members of the House are elected and they in turn elect the Speaker — and notes that unlike the Senate president, the Speaker is a member of the House who can vote and debate, while the Vice President, who presides over the Senate, is not a member and cannot debate or vote except in the event of a tie. How Washington Invented the Presidency (2013)
Zadek draws the implication: the President was not elected by the people but indirectly through the Electoral College, senators were elected by the state houses, and the courts were not elected by the people. The only direct election at the time of the founding was the House of Representatives, so that one-half of one-third of the federal government was governed by pure democracy — evidence, in his reading, of the founders’ distrust and discomfort with the concept of direct election. How Washington Invented the Presidency (2013)
Direct democracy at the state level
In a later episode, Zadek argues that moving constitutional law decisions toward the states automatically rewards citizens with freedom: if we do not like how our state is operating, we are free to move, and we can vote with our feet — a more powerful way of voting than voting at the ballot box, which he calls vacuous and meaningless. He contrasts moving from Berkeley to Austin with moving to Canada, calling the former a much more low-level decision. Who Decides? (2022)
Jeffrey Sutton describes the state level as much more democratic than the federal: state constitutions are very easy to amend, most of them by 51%, including California’s, with Florida’s the hardest at 60%, and 90% of state court judges, including all of the judges in California, at some point have a retention election. He notes that the federal constitution cannot be amended without the support of three-quarters of the states, and that the U.S. Supreme Court has embraced judicially enforceable rights and the identification of new constitutional rights more than any court in world history. Who Decides? (2022)
Judicial selection as a test case
Zadek asks whether the public is in any position to best decide who ought to be a judge, and whether direct election of judges leads to a tilting away from the scholarship of being a judge and more toward winning the approval of 51% of the electorate. Sutton answers that it is very strange to use a majoritarian process to select someone for a non-majoritarian job, since a judge is not supposed to put a finger in the wind for every hard case, and the constitution is sometimes counter-majoritarian — designed to protect a criminal defendant everybody despises. But he adds that there is no minoritarian way to select judges: you have to use the majority at some point, whether majority elected officials or a majority of citizens. Who Decides? (2022)
Sutton recounts that in Ohio, his state, judges run every six years in a partisan election where the political party is next to the name. He says the people still do not have a great sense of what they are doing, but they can correct not micro but macro trends — if the people of a state get a sense that the state court has become the who decides answer in too many areas where the constitution does not seem to speak, that is a useful corrective. He says the risk of using elected officials solely and exclusively to select judges, particularly for life terms, is that they treat judges as judicial representatives who will reflect their perspective on issues like abortion, takings, economic liberties, and redistricting. Who Decides? (2022)
On the origin of life tenure, Sutton tells the story of a significant case in Rhode Island, before the federal constitution was written, in which the Rhode Island Supreme Court invalidated a law under the Rhode Island constitution. The legislature called all five justices to a hearing; four showed up and one claimed a previous engagement. The legislature did not throw the justices out, but at the time they had one-year terms, and it did not reappoint four of the five — the fellow who did not show up got reappointed. Alexander Hamilton, writing Federalist 78, said we cannot have a situation where the legislature can intimidate judges into not doing their duty to invalidate unconstitutional laws, which Sutton calls the source of life tenure. He notes that just two governments in America now have life tenure: the federal government and Rhode Island. Who Decides? (2022)
Zadek states his own bias against direct democracy, saying many of the founders were quite skeptical of it, which is why they built the Electoral College and the Senate, and that he shares that bias. He recalls a show on a Texas election and notes that in California the Insurance Commissioner is elected, and that he learned Texas has an elected textbook commissioner — wondering how one campaigns for such an office, and converting the thought to how one would run for office as a judge. Who Decides? (2022)
The progressive roots of direct democracy
Frank H. Buckley argues that the initiative and referendum movement originated in the West, and that the 17th Amendment, the direct election of senators, was a Western initiative. He says the Westerners who are the source of American libertarianism were in favor of direct democracy and those kinds of issues, and that it is important to know where the 17th Amendment came from and what is progressive in libertarianism. Trumpism After Trump (2022)
Buckley also invokes Frederick Jackson Turner, who said states compete and that the West offered free institutions and mobility as opposed to an aristocratic East; realizing it was losing people, the East found it had to democratize as well, a trend Buckley says carried back to Europe. On corruption, Buckley says Republicans looked at the money trust — the influence of money in politics in the 1890s — and were against it, and that Teddy Roosevelt said bigness is natural and the target was the influence of money in politics, not big business. He argues this should strike a positive chord with libertarians and Republicans, and points to the revolving door between Congress and K Street, saying people describe Congress as a farm team for K Street. Trumpism After Trump (2022)
Across episodes: no settled verdict
The topic recurs across three episodes without resolution. In the 2013 episode, Unger and Zadek present the founders’ indirect architecture as evidence of distrust of direct election. In the 2022 episode with Sutton, Zadek restates that bias while Sutton defends a popular role in judicial selection as a macro corrective and calls the majoritarian selection of non-majoritarian judges strange. In the 2022 episode with Buckley, the same institutions — the initiative, the referendum, the 17th Amendment — are described not as dangers but as Western, progressive, and authentically libertarian in origin. The excerpts show the question argued from different directions rather than a development from one position to another.
What the sources do not cover
The excerpts do not state the outcome of the Rhode Island case beyond the non-reappointment of four justices, nor the name of the case or the provision it turned on. They do not identify the Texas election Zadek recalls, the year it occurred, or the office at issue beyond his description. They do not say what Proposition 13 did or whether Zadek approved of it, since Sutton raises it only as a guess.