Michigan and popular constitutionalism

Ilya Somin isomin at gmu.edu
Thu Nov 9 13:10:36 PST 2006

I would note 3 things:

1. For decades "the people" have consistently voted for parties and candidates that accept judicial review (even if they oppose many specific judicial decisions). That seems like "consent through voting" to me.

2. Judicial review is consistent with popular control of the constitution's content, in the sense that democratic processes can still enact constitutional amendments that the judiciary must then enforce. Popular constitutionalism, however, goes well beyond this uncontroversial point. If it didn't, it would not be such a controversial theory.

3. Given that most of the public and mainstream political leaders understand the existing constitution to contain judicial review (an understanding that I think is historically correct, as well), the absence of an explicit amendment stating this is not enough to override the overwhelming evidence of popular acceptance of judicial review. Ditto for a congressional resolution or statute on the subject. Congress undoubtedly sees little reason to spend time enacting a statute that merely endorses decades of status quo practice. 

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

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