Michigan and popular constituionalism
mgraber at gvpt.umd.edu
Thu Nov 9 06:26:58 PST 2006
A small clarification. Scott, is the group attempting to have the
constitutional amendment declared unconstitutional under the
Constitution of the United States or under the Constitution of Michigan.
Note, in this respect, the Supreme Court of India has declared
unconstitutional some constitutional amendments (see Gary Jacobsohn's
wonderful book) and many members of the Princeton School of
constitutional thought insist on the possibility of unconstitutional
constitutional amendments in the United States (there was litigation on
this with respect to the 19th amendment and a Harvard Law Review piece
in 1925ish insisting the amendment was unconstitutional).
>>> Scott Gerber <s-gerber at onu.edu> 11/09/06 8:53 AM >>>
I've read that at least one pro-affirmative action group is suing to
try to get a court to declare the new Michigan anti-affirmative action
amendment unconstitutional. That seems unlikely, in that the US
Supreme Court in the Michigan cases said Michigan can--not
must--consider diversity in its admissions decisions under federal
equal protection law. But separate and apart from the merits of the
argument presented to a court, I would be curious to learn what
proponents of popular constitutionalism feel about this effort to ask a
_court_ to declare an amendment by "the people themselves"
unconstitutional. Sandy Levinson? Mark Tushnet? etc.?
M. Sean Fosmire wrote:
>A fascinating side trip into the intersection of constitutional law and
>practical politics would be to have them keep an eye on the steps that
>University of Michigan will be taking in response to the overwhelming
>passage of the anti-affirmative action amendment in Michigan.
>M. Sean Fosmire
>hatgem at gmail.com
Ohio Northern University
Ada, OH 45810
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