Michigan and popular constituionalism
Scott Gerber
s-gerber at onu.edu
Thu Nov 9 08:50:26 PST 2006
Kim:
My focus is on the judiciary as an _institution_. As a mentioned
earlier, a popular constitutionalist who opposes judicial review can't
turn to a court to overturn a decision by the people themselves.
Scott
Kermit Roosevelt wrote:
>Moreover, I don't see why a popular constitutionalist should think the
>people of Michigan have the last word on the meaning of the federal
>constitution (which is the one the opponents of the amendment are
>relying on).
>
>--
>Kermit Roosevelt
>Assistant Professor
>University of Pennsylvania Law School
>3400 Chestnut Street
>Philadelphia PA 19104
>215.746.8775
>
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bill Rose
>Sent: Thursday, November 09, 2006 11:17 AM
>To: Scott Gerber; Samuel Bagenstos
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: RE: Michigan and popular constituionalism
>
>I'm not sure I support BAMN's lawsuit - it seems to me destined to fail.
> But, it seems to me not the most interesting question to ask of the
>many that might be raised by this situation. Rather, it seems intended
>as a gentle chiding of popular constitutionalists - whoever they might
>be - apparently founded on the notion that popular constitutionalists
>wouldn't like the political outcome. This assumes a politics for
>popular constitutionalism that is probably mistaken.
>
>My initial response to Scott's question was a rather simple one -
>perhaps overly so: i.e., simply because Proposal 2 passed, doesn't mean
>- either as a matter of politics or constitutional theory - that the
>debate should, or must, come to an end. Mary Sue Coleman's response and
>BAMN's response are different of course, the first trying to evade and
>resist, and the second seeking a judicial determination of the
>underlying constitutional questions. Again, perhaps a popular
>constitutionalist might seek to keep the debate open, and contest the
>constitutional claims in both judicial and non-judicial arenas.
>
>Bill Rose
>
>William Rose
>Associate Professor of Political Science and
>Director of the Law, Justice, & Society Concentration
>Albion College
>Albion, Michigan 49224
>
>>>> Scott Gerber <s-gerber at onu.edu> 11/09/06 11:00 AM >>>
>Sam:
>
>I don't know. My original question was about whether a popular
>constitutionalist would support the lawsuit (as a matter of
>constitutional theory, not practical politics). No avowed popular
>constitutionalist has answered my question, although Mark Graber (who
>isn't a popular constitutionalist), did his best to try.
>
>Perhaps popular constitutionalists are busy celebrating Tuesday's
>elections.
>
>Scott
>
>
>Samuel Bagenstos wrote:
>
>
>>Scott,
>>
>>Do you think the folks who make up the group "By Any Means Necessary"
>>ever considered themselves to be popular constitutionalists? Did
>Larry
>>Kramer sign their complaint or something?
>>
>>Samuel R. Bagenstos
>>Professor of Law
>>Washington University Law School
>>One Brookings Drive, Box 1120
>>St. Louis, MO 63130
>>(314) 935-9097 (voice)
>>(314) 935-5356 (fax)
>>
>>Personal web page: http://law.wustl.edu/Faculty/index.asp?id=198
>>Disability law blog: http://disabilitylaw.blogspot.com/
>>
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
>>Sent: Thursday, November 09, 2006 9:46 AM
>>To: Mark Graber
>>Cc: conlawprof at lists.ucla.edu
>>Subject: Michigan and popular constituionalism
>>
>>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/
>>>>_______________________________________________
>>>>To post, send message to Conlawprof at lists.ucla.edu
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>>>>
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>>>>
>>>>_______________________________________________
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>>>>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/
>>>
>>>_______________________________________________
>>>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/
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
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>>
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>>or wrongly) forward the messages to others.
>>
>>
>
>
>------------------------------------------------------------------------
>
>
> Name: Samuel Bagenstos.vcf
> Type: text/x-vcard
> Encoding: base64
>
>--------------------------------------
>
>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
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>or wrongly) forward the messages to others.
>_______________________________________________
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>To subscribe, unsubscribe, change options, or get password, see
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>Please note that messages sent to this large list cannot be viewed as
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>
>
>
--------------------------------------
Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/
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