Derrick Bell, the first African American dean of a non-historically black school of law, and long-time professor at Harvard and NYU law schools, passed away yesterday at age 80.

In addition to pioneering “critical race theory,” Bell penned a seminal essay in 1978, on the dangers of direct democracy towards minorities.  Bell, in his Washington Law Review article, “The Referendum: Democracy’s Barrier to Racial Equality,” argued that ballot measures could perpetuate racial discrimination, increasingly so as racial barriers are simultaneously being lowered in representative democracy.  As such, the courts, Bell contended, should use heightened scrutiny assessing whether the civil rights of minorities are diminished via plebiscite.  Concerned with the populist tropes of some ballot measures, Bell warned, “Although the racial motivation is hidden, its effects are not; and the damage to minorities and to the integrity of a representative government can be as severe as that of the overtly racist laws existing in the country before 1954.”

For more empirical research on direct democracy and minority rights, see my review essay with Caroline Tolbert, as well as this article by Don Haider-Markel and his coauthors.