Michigan and popular constitutionalism

rjlipkin at aol.com rjlipkin at aol.com
Thu Nov 9 14:59:41 PST 2006

    I think our dispute goes back at least as far as the Founding. There are, arguably, two different positions on what the consent of the governed requires.  In my view, it requires an institutional structure permitting the people or their representatives to have a much greater opportunity to determine policy than they presently have.  This does not require a commitment to majoritarianism because one can embrace, for a variety of reasons, a supermajoritarianism decision procedure for legislative decisions and still satisfy the imperative to permit the people or their representatives a much greater opportunity to determine policy. The other position seeks the consent of the people only at discrete intervals and is not concerned whether informal practices--however significant--are  formally consented to by the people or not.  Both these positions warrant greater explication than can be offered here.
     I do not think we can ever settle this kind of argument empirically, though empirical evidence should not be avoided. Ultimately, it depends on one's comfort level with the messiness of popular rule. If one is comfortable with this messiness, and also thinks there are independent reasons why the messiness should be tolerated, even embraced, then one will choose the first position. If one is uncomfortable with messiness, one will be naturally attracted to the second position. 
    I take the consent of the government and its related concepts seriously, perhaps naively. I do not see in American government sufficient commitment to the consent of the governed. Alternatively, my understanding of the idea of the consent of the governed requires much greater formal input from the people or their representatives. In my view that would be a good thing.  But if it's not, I would so much prefer calling a spade and spade and eliminating talk about consent, popular rule, democracy, and so forth.

Robert Justin Lipkin
Professor of Law
Widener University School of Law
-----Original Message-----
From: crossf at mail.utexas.edu
To: RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Sent: Thu, 9 Nov 2006 4:14 PM
Subject: Re: Michigan and popular constitutionalism

I'm just not sure it requires a canonical procedure.
In practice, popular opinion has considerable impact (in a non-transient sense) on our governance, including judicial decisionmaking.
But I suppose we do have the sort of canonical procedure through the constitutional amendment procedure.

At 03:07 PM 11/9/2006, RJLipkin at aol.com wrote:

        First, my argument has little, if anything, to do with majoritarianism. I am a republican democrat, one who endorses procedures for distinguishing the community's will not just a transient majority.  This might require supermajoritarian voting (and amendment) procedures or a series of ordinary elections or both. And polity based on the consent of the governed requires, I would think, canonical procedures for ascertaining that consent. And this is true in republics just as much as in democracies.
        Second, let's say, for the sake of argument, that popular constitutional is consistent with the people wanting to not vote on some matter. Do we need some canonical procedure for ascertaining this? I would think so. So if voting is not that procedure, what is?

Robert Justin Lipkin
Professor of Law
Widener University School of Law

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178 

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