Michigan and popular constituionalism

[Mark Graber]

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).

MAG

>>> 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.?

Thank you,
Scott


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 
the
>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
>Marquette, Michigan


--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/
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