Michigan and popular constitutionalism

[RJLipkin at aol.com]

The people in any given era  might not want a lot of things: judicial 
review/supremacy, voting, majority  rule, regular elections, democracy itself. And, 
maybe, to paraphrase, a point  made by  Waldron, maybe the people should not 
then have to have  them.  But let's not call this a democracy. And if popular  
constitutionalism means democracy, let's not call a polity where the people  
reject the above features of democratic government a "popular constitutional  
government." 
 
        If popular  constitutionalism simply means granting the people what 
they want whenever they  want it, it's unclear how this is a popular 
constitutional government.  Constitutionalism should mean constraints on what they 
people want at any given  time.  But let's not conflate the existence of 
constitutional constraints  with the institutional question of who determines the 
content of these  constraints and under which circumstances they should apply. A  
perfunctory rejection of the possibility that the people can decide  both policy 
and constitutionality prevents us from exploring alternative  institutional 
arrangements rejecting judicial supremacy. 
      
        Even with voting an  imperfect gauge of what the people want, asking 
for the people's consent through  voting is far more consistent with what they 
want, then the work of this or that  pollster.  And if the pollster's (social 
scientist's) methods are more  accurate then let's drop voting and make 
polling the canonical form of  ascertaining the people's consent. In either case, 
some canonical form of  ascertaining the people's consent is, I would think, a 
requirement of both  democratic and republican government. 
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
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