Tom Cotton's 2000 law review article on the Arkansas ballot initiative | Arkansas Blog

Saturday, September 27, 2014

Tom Cotton's 2000 law review article on the Arkansas ballot initiative

Posted By on Sat, Sep 27, 2014 at 1:01 PM

click to enlarge COTTON: His law review article argued that complicated matters should be left to to those "selected for their wisdom and virtue, motivated by their honor and ambition."
  • COTTON: His law review article argued that complicated matters should be left to to those "selected for their wisdom and virtue, motivated by their honor and ambition."

This will mostly be of interest to the most completist of Cottonologists. A 2000 article in the
on the Arkansas ballot initiative process was written by none other than Thomas B. Cotton, then a 23-year-old Harvard Law student, now a candidate for U.S. Senate.

Cotton gives an overview of the popular ballot initiative process (among his observations: "last-minute ballot title challenges greatly hampered the initiative process") and makes some suggestions for changes. I have to say that I get a kick out of Cotton's tweed-jacket prose style: "Though political calculation may point to a rosy or even a tendentious name and title, the draftsman must scrupulously avoid stratagems and ploys if the language is to withstand several levels of review."

Cotton suggests various reforms, including a 150-word limit or ballot iniatives. Here Cotton shows off his flare for big ideas about American republicanism, some of them distinctly old-fashioned in our modern democracy (small-r republicanism that is; for more, see our big feature on Cotton). A word limit would not be a restriction on the people's rights under Amendment 7, he writes:  

On the contrary, representation faithfully assists republican government by creating propitious conditions for political deliberation and choice. A small group of officeholders, selected for their wisdom and virtue, motivated by their honor and ambition, coming together to devote themselves without distraction to the management of public affairs, are much better situated to adopt subtle and refined measures designed to promote the common good. Long and complicated initiatives, on the other hand, require the mass of citizens to craft policy with little time to reflect coolly and less ability to see how any single measure affects and is affected by the fabric of law. 

The words that pop up over and over if you look at the pre-politician Cotton years are "honor" and "virtue." Those are the concepts which seem to anchor this thinking. Also "ambition," which the Pryor campaign has turned into a pejorative, but which the young Cotton viewed as essential to the elites who would "devote themselves without distraction to the management of public affairs." Cotton's point here is basically that if something takes more than 150 words to explain, the average voter isn't going to have the wherewithal to assess the issue and it should instead be decided by wise, virtuous and honorable legislators (fair point that voters can't be expected to devote the time to decipher confusing referendums, though of course we can retain a bit of skepticism about the wisdom and virtue in the Arkansas General Assembly).

Without reform, Cotton warned in closing his article, "the initiative will continue to create more mischief than good and perpetuate the twin evils of instability and imbecility in government."

In Molly Ball's recent long feature on Cotton for the Atlantic, she looked at the ideas in his senior thesis at Harvard (ideas which Cotton stood behind in interviews with Ball). There's the same distrust of populism and the people, and exaltation of their ambitious representatives: 

Cotton insists that the Founders were wise not to put too much faith in democracy, because people are inherently selfish, narrow-minded, and impulsive. He defends the idea that the country must be led by a class of intellectually superior officeholders whose ambition sets them above other men. Though Cotton acknowledges that this might seem elitist, he derides the Federalists’ modern critics as mushy-headed and naive.

“Ambition characterizes and distinguishes national officeholders from other kinds of human beings,” Cotton wrote. “Inflammatory passion and selfish interest characterizes most men, whereas ambition characterizes men who pursue and hold national office. Such men rise from the people through a process of self-selection since politics is a dirty business that discourages all but the most ambitious.”

Of course, Cotton has an idea for that "small group of officeholders, selected for their wisdom and virtue, motivated by their honor and ambition": Thomas B. Cotton. 

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