Many state constitutions include “single-subject” rules, which require
legislation, ballot initiatives, and/or constitutional amendments to encompass
only one subject. These rules are intended to facilitate informed decisionmaking
by making it clear to voters what they are voting on, as well as to
prohibit practices that leverage one measure’s popularity to assist with the
passage of another, such as logrolling and the inclusion of riders. Courts have
struggled to enforce these rules, however, due largely to the inherent
slipperiness of “subject” as a concept. Commentators have in turn questioned
judicial intervention based largely on doubts about whether the rules can be
implemented in a principled and consistent manner. This Essay focuses not
on the nature of the rules but rather on the nature of the power wielded by
the courts that implement them. It contends that objections to judicial
enforcement of single-subject rules have implicitly assumed the federal
judicial power as the standard against which to assess the practice, when in
fact state judicial power—as to which, for one thing, the “countermajoritarian
difficulty” often does not exist—may differ in ways that open the door to
more aggressive judicial review. That posture may be especially appropriate
for issues involving the political process, which is the case with single-subject
rules. To be sure, as critics have suggested, aggressive review will often be
ideologically inflected. In the context of single-subject challenges, ideology’s
influence is likely to be significant primarily in states with a closely divided
government, and the fact of the close divide may make aggressive
enforcement of single-subject rules less troubling than first meets the eye.
