Michigan and popular constituionalism

Thu Nov 9 07:45:39 PST 2006

Mark:

No offense, but I don't find any of what you discuss below persuasive, 
especially for a popular constitutionalist who opposes judicial review 
(such as Mark Tushnet).  That was my question.  Your reaction, and Bill 
Rose's reaction, make clear to me that many left-leaning popular 
constitutionalist weren't sincerely committed to it, but rather used 
that theory as an end-run around conservative courts.  Now that the 
_people_ of Michigan have made a decision the left doesn't like, 
popular constitutionalists are trying to end-run the people themselves 
(assuming they support the lawsuit, as Bill Rose seems to do).

FYI, my guess is the lawsuit will fail.

Thanks,

Scott

Mark Graber wrote:

>Might we distinguish three separate questions here.
>
>1.  Are popularly enacted amendments a better expression of the public
>will than legislation?  This may not be correct.  Note that Hans Linde
>thought justices should defer to legislation on most matters, but
>thought the initiative and referendum process (which may not be
>identical to the process Michigan has for constitutional amendments)
>have significant republican flaws.  So perhaps a popular
>constitutionalist might want less deference to a referendum than
>legislation.  Not being a popular constitutionalist, I do not want to
>endorse the argument other than to note that it is out there.
>
>2. Should popular constitutionalists engage in unilateral disarmament? 
>On this view, people who believe judicial review suffers from a
>democratic deficit should not litigate constitutional issues, even
>though there rivals are fully prepared to take advantage of the
>opportunities litigation offers to determine constitutional policy. 
>Note again, it is possible to believe that judicial review (or for that
>matter, the electoral college) suffer from democratic deficits but
>nevertheless be fully prepared to take advantage of that process while
>it exists.  The following sentence is intellectual coherent.  We should
>get rid of the electoral college, but until we do, campaign strategies
>may legitimate take the electoral college into account and the person
>who gets the most electoral votes is legitimately the president of the
>United States.
>
>3.  Should the judiciary have the power to declare laws
>unconstitutional?  This seems the easiest question from the perspective
>of popular constitutionalism?  But note that the answer to 3 still
>leaves 1 and 2 as grounds for objecting legally to the Michigan process.
>
>MAG
>
>>>> Scott Gerber <s-gerber at onu.edu> 11/09/06 10:12 AM >>>
>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/
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly 
or wrongly) forward the messages to others.
>

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

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