Michigan and popular constitutionalism

[Marty Lederman]

I  was not referring to anyone -- Scott was.

Yes, of course, if there is anyone out there whose understanding of the Constitution is that it does not -- and should not be understood -- to prohibit any policy chosen by popular referendum, then by all means that settles the question of the constitutionality of the new Michigan law.

But do such persons exist?  And, if so, why should we be spending such an inordinate amount of time on this list debating what they would (or should) think of the Michigan law?
  ----- Original Message ----- 
  From: RJLipkin at aol.com 
  To: marty.lederman at comcast.net ; s-gerber at onu.edu ; SLevinson at law.utexas.edu 
  Cc: CONLAWPROF at lists.ucla.edu 
  Sent: Friday, November 10, 2006 9:14 AM
  Subject: Re: Michigan and popular constitutionalism


  In a message dated 11/10/2006 8:44:14 A.M. Eastern Standard Time, marty.lederman at comcast.net writes:
    Scott rights:  "popular constitutionalists are now trying to distort popular constitutionalism b/c they aren't happy with the popular constitutionalism of the people of Michigan."
          I'm not sure to whom Marty is referring, but any principled popular constitutionalist, as any principle democrat generally, must acknowledge the possibility that a popular constitutional event--referendum, etc.--might result in a decision which a particular popular constitutionalist abhors, even that such a decision constitutes constitutional evil from the perspective of a particular popular constitutionalist. The possibility, even the inevitability, of losing in a diverse society where reasonable disagreement--due to the burdens of judgment as well as other factors--is always present even for, perhaps especially for, the popular constitutionalist.

          Popular constitutionalism, as I understand stand it, does not mean that popular constitutionalists cannot disagree about particular substantive results. It just means that in the end the result that prevails should be generated by a certain process.

  Bobby

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