101 Politicians' or the People's Court?

Rick Duncan nebraskalawprof at yahoo.com
Mon Sep 12 07:42:43 PDT 2005

I don't know how the people would vote in a Supreme Court election. If we go this route, it should be a real, contested election with multiple candidates running for office, not merely an electoral form of advice and consent. But if we elected federal judges and justices, I think candidates would indeed have to run on various hot button issues. And I believe that constitutional law would be very different under a more openly political system. In some ways better, in some ways worse. And in some ways unpredictable.
One other reform I would like to see adopted is a citizen initiative process that would give citizens, with enough signatures collected in each state, an opportunity to propose constitutional amendments directly to the people voting in national elections. I know the Court serves as an ongoing constitutional convention serving up new amendments at will, but I would like to see the People have a greater role in shaping this living, breathing, evolving constitution of ours. 
Rick Duncan

RJLipkin at aol.com wrote:
        I'm grateful for Rick's support.  But just to clarify my position.  It is not simply "power to the people." It's rather "power to the people after the people make a reflective, responsible choice."  Who gets to determine what counts as "a reflective, responsible choice"? We do. In a suitably crafted institutional process.  Who gets to craft that process?  Again, we do. Constitutionalists, political philosophers, theologians, social critics, etc. and most importantly, the people, the first of all other constitutional players. In my view, just what the people want regarding some of the hot-button issues to which Rick referred cannot ultimately be determined until we have an effective institutional process through which the people can reflectively choose.  And then the people must be aware of the existence and their primacy in such a process. At that point, Rick might not be happy with the substantive results.  That's my hunch.  But we'll never know until both democracy!
 republicanism are authentically expressed in American self-government. 
Robert Justin Lipkin
Professor of Law
Widener University School of Law

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
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