Michigan and popular constitutionalism

[Lupu]

The message below from Scott shows the basic error in Scott's 
thinking.  The people of Michigan did not override a decision of the 
Supreme Court, which hadn't created the affirmative action program, 
and certainly hadn't ordered the University to continue it.  The people 
of Michigan overruled the officers of the University, who had initiated 
and implemented the program.  That is a legitimate populist control 
over state policy (the lawsuit will fail, just as the comparable lawsuit in 
California failed), but why should we think of it as a "constitutional" 
judgment?  The constitution permits the state to have, or to not have, 
an affirmative action policy of the sort upheld in Grutter.  The university 
chose to have such a policy, and the voters chose not to have it any 
longer.

From: 	Scott Gerber <s-gerber at onu.edu>
To:             	RJLipkin at aol.com
Copies to:      	CONLAWPROF at lists.ucla.edu
Subject:        	Michigan and popular constitutionalism

> Bobby:
> 
> Your answer doesn't address what happened in Michigan.  The _people_ 
> voted _directly_ to ban affirmative action.  The legislative process 
> has nothing to do with it.  It seems to me that the _people_ of 
> Michigan have overridden the US Supreme Court's decision, which is what 
> Ward Connerly was trying to do.  As such, what happened in Michigan 
> seems like a good case study in popular constitutionalism, although the 
> outcome might not be endearing to left-leaning popular 
> constitutionalists.
> 
> Scott
> 
> 
> RJLipkin at aol.com wrote:
> 
> 
> >A popular constitutionalist, of a  certain stripe, can embrace courts 
> just so 
> >long as he or she does not embrace  judicial supremacy.  Thus, one can 
> be a 
> >popular constitutionalist  while favoring legislative overrides of 
> judicial 
> >decisions. In this case, the  popular constitutionalist recognizes the 
> role of 
> >the courts in having their say  on matters of constitutionality, while 
> insisting 
> >that the legislature has the  final say on the matter. Hence, we need 
> to 
> >define "popular  constitutionalism" with much greater precision than is 
> usually 
> >supposed. 
> > 
> >Bobby
> >
> >Robert Justin Lipkin
> >Professor of Law
> >Widener  University School of Law
> >Delaware
> >
> 
> 
> ------------------------------------------------------------------------
> 
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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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Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

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