Michigan and popular constitutionalism

[Ilya Somin]

Strong majorities have supported judicial review for as long as we have polling on the matter. Almost all the political leaders elected to high federal office over the last few decades have supported judicial review (though they disagreed among themselves, of course, over the validity of particular court decisions).

Short of a national referendum over judicial review - for which there is no mechanism under the current Constitution (or even the "popular understanding" thereof), I don't see how we can have stronger popular endorsement of judicial power. 

I'm not aware of polling about "judicial supremacy" specifically, but I think the average person probably does view judicial review as a kind of supremacy, at least in so far as he or she does not envision the other branches of government as being able to overrule or refuse to follow judicial decisions.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: Frank Cross <crossf at mail.utexas.edu>
Date: Thursday, November 9, 2006 2:35 pm
Subject: Re: Michigan and popular constitutionalism

> 
> Well, I'm in no way a popular constitutionalist, but this is a 
> little 
> intriguing.
> 
> What if the people didn't want a vote?  Is popular 
> constitutionalism really 
> respectful of the people or does it worship voting?  Of course, 
> voting is 
> how we select people as representatives, but it comes with certain 
> vagaries 
> (hanging chads, inability to get to the polls, campaign 
> advertising with 
> varying financing, etc.)  If it is the people's will that is to be 
> respected, I don't think it follows that one necessarily worship 
> the voting 
> process under any set of circumstances.
> 
> 
> At 01:22 PM 11/9/2006, RJLipkin at aol.com wrote:
> >         It's not at all clear to me that non-canonical 
> observations of 
> > whether the people want judicial review are relevant. Popular 
> > constitutionalism is not wedded to the notion that what the 
> people want 
> > at any given time is what "the people themselves" want. Rather, 
> a more 
> > muscular form of popular constitutionalism would say electoral 
> approval 
> > is required for that. Just as the people themselves have never 
> had an 
> > opportunity, at least recently, if ever, to vote on whether they 
> endorse 
> > judicial review, they certainly have never voted on whether they 
> endorse 
> > judicial supremacy. Empirical studies showing acquiescence seem 
> quite 
> > beside the point.
> >
> >         Let me reiterate: just what popular constitutionalism 
> > embraces--and therefore what the relevance of public opinion is--
> depends 
> > entirely on one's conception of popular constitutionalism.
> >
> >Bobby
> >
> >Robert Justin Lipkin
> >Professor of Law
> >Widener University School of Law
> >Delaware
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> **********************************************************
> 
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
>