Michigan and popular constituionalism
Kermit Roosevelt
krooseve at law.upenn.edu
Thu Nov 9 09:03:22 PST 2006
Yes, but I don't think that the people of Michigan are The People
Themselves, or that a popular constitutionalist is necessarily debarred
from any resort to the courts. If a city council enacts an ordinance
that's contrary to the national understanding of what the constitution
means, surely the popular constitutionalist can ask a court to strike
that down. (Or at the least, she can get a contrary state law passed
and then have a court enforce that to wipe out the ordinance--which is
sort of how you could characterize the complaint's reliance on the Civil
Rights Act.) So if a state-level majority enacts a law that's contrary
to the national understanding of the constitution, I don't see why the
popular constitutionalist can't ask a court to enforce the national
understanding rather than the state-level one. It may be that the
arguments the litigants are presenting here aren't appealing to the
national understanding, but after all, they aren't popular
constitutionalists. And it may even be that the national understanding
doesn't support the position they're taking, but that's a different
question from the one of whether a popular constitutionalist can in
principle seek judicial disruption of a minority interpretation.
--
Kermit Roosevelt
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia PA 19104
215.746.8775
-----Original Message-----
From: Scott Gerber [mailto:s-gerber at onu.edu]
Sent: Thursday, November 09, 2006 11:50 AM
To: Kermit Roosevelt
Cc: Samuel Bagenstos; conlawprof at lists.ucla.edu; Bill Rose
Subject: Re: RE: RE: Michigan and popular constituionalism
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
>>>>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
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>>>>or wrongly) forward the messages to others.
>>>>
>>>>_______________________________________________
>>>>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
>>>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
>>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.
>>
>>
>
>
>-----------------------------------------------------------------------
-
>
>
> 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
>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.
>_______________________________________________
>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/
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