Michigan and popular constituionalism

[Scott Gerber]

Under Bill Rose's interpretation, popular constitutionalism seems to 
mean that some people can ignore what the people--speaking as the 
controlling polity through the amendment process--say if they don't 
like what they've said.  That seems strange to me.  After all, we are 
talking about a popularly-enacted amendment to the state constitution.  
It seems impossible for someone who opposes judicial review to take 
that position.

My point was about constitutional theory, not practical politics.  I'm 
well aware that at least some proponents of affirmative action 
(apparently, according to Bill Rose, the president of the U of M), will 
do whatever it takes to subvert the new amendment.

SDG


Bill Rose wrote:


>The lawsuit was filed in U.S. District Court yesterday.  The
>organization sponsoring the lawsuit is "By Any Means Necessary."  This
>is the link to their complaint: 
>http://www.bamn.com/doc/2006/061108-complaint-prop2.pdf 
>
>The argument from 'BAMN's' website states that they're challenging
>Proposal 2 on three grounds: that it's "invalid under federal law
>because (1) it is preemptive of the Civil Rights Act of 1964, (2) it
>violates the Equal Protection Clause of the Fourteenth Amendment, and
>(3) it violates the First Amendment as affirmed by" Grutter v.
>Bollinger.
>
>In addition, University of Michigan President, Mary Sue Coleman has
>announced that she's instructed University lawyers to immediately begin
>work on finding ways to get around the requirement, stating that she
>does not want the U of M to go the way of UC, Berkeely and UCLA, and
>that she won't give up on diversity programs at U of M.
>
>As to Scott Gerber's claims about 'popular constutionalism' - I guess
>I'm not sure what his real question is.  This seems to me to be a very
>interesting example of a range of groups engaging in an ongoing
>political contest over the place of race and gender conscious diversity
>programs in public institutions.  Gerber seems to suggest that once the
>"people" have spoken, they've done so with a clear voice and all debate
>must come to an end.  Located here in the State of Michigan, I see this
>as still something of an open debate, albeit within a somewhat new
>political and legal context.  Indeed, it is this 'opening up' to
>continuing popular discussion of what the Constitution means in
>particular contexts as an important aspect of the notion of popular
>constutionalism.
>
>Bill Rose
>
>William Rose  
>Associate Professor of Political Science and 
>Director of the Law, Justice, & Society Concentration
>Albion College
>Albion, Michigan  49224
>
>>>> "Mark Graber" <mgraber at gvpt.umd.edu> 11/09/06 9:26 AM >>>
>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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--------------------------------------

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