Michigan and popular constituionalism

kbergin at stcl.edu kbergin at stcl.edu
Thu Nov 9 10:01:18 PST 2006


Scott Gerber wrote:

"I'd also like to add one thing to David Bernstein's post:  the 
left had a good day on Tuesday . . . "

Minor clarification: given the platform of many a newly elected rep, 
the "Left" lost on choice, environmentalism, immigrant rights, and GLBT 
dignity.  Ours was a costly victory.    

More to the point: I dont think the Warren Court spoke for the people 
any more than Rehnquist's Court.  They both rejected what would be 
described as a "constituitonal wrong" depite its popular support.  
Think Brown under Warren, Croson under Rehnquist.  But that alone does 
not mean that the Court appropriately exercises its independent 
function each time it identifies a threshhold beneath which "the 
people" cannot sink.  Nor does it exercise appropriate restraint each 
time it cedes to expressions of democratic will.  The difficulty lies 
with identifying the baseline threshold.  That is an inherently 
manipulable exercise, but allowing the people to identify that 
threshold without some judicial oversight - outside of a federal 
constitutional amendment - disables the judiciary from fulfilling its 
intended function. 

> Best,
> Scott

 
> Samuel Bagenstos wrote:
 
 
> >Okay, but if all you're saying is that popular constitutionalists are
> >hypocrites for not condemning this lawsuit that just got filed, then
> >Mark Graber's points are persuasive.  Even if someone believes in
> >popular constitutionalism (I don't, even though I've spent much 
> of my
> >litigation career defending federal statutes against constitutional
> >challenges), that doesn't give them an obligation to speak out 
> against>any and every lawsuit.
> >
> >Anyway, I kind of think that many folks who had been enamored of 
> popular>constitutionalism circa 2000-2001 have come to see that 
> the judiciary,
> >though a deeply flawed institution like all institutions, has an
> >independent role that is very important to liberty and democracy. 
> I
> >don't think that means those folks were insincere in 2000-2001, 
> as you
> >suggest.  Instead, I think many of them had an end-of-history 
> view that
> >courts were no longer needed to play the role that they had once 
> played.>As with Fukuyama's more famous end-of-history idea, events 
> of the last 6
> >years have revealed lots of flaws in that view.  But that's a bigger
> >point.
> >
> >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: Scott Gerber [mailto:s-gerber at onu.edu] 
> >Sent: Thursday, November 09, 2006 10:00 AM
> >To: Samuel Bagenstos
> >Cc: Mark Graber; conlawprof at lists.ucla.edu
> >Subject: Re: RE: Michigan and popular constituionalism
> >
> >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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> >>>>
> >>>
> >>>--------------------------------------
> >>>
> >>>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
> >>>
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> >>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
> >>
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> >>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/
> >
> 
> 
> -------------------------------------------------------------------
> -----
> 
> 
>                           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
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> 
> Please note that messages sent to this large list cannot be viewed 
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> 


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