Massachusetts and South Dakota popular constitutionalism

[Zietlow, Rebecca E.]

Ted,

That is a great sound bite.  An interesting contrast to your
Massachusetts example is the referendum in South Dakota rejecting the
ban on all abortions that had been enacted by the legislature.  The
legislature had enacted the ban to set up a legal challenge that would
eventually make its way up to the US Supreme Court, setting up a vehicle
to overrule Roe v. Wade.  Instead, the voters of South Dakota denied the
Court the opportunity to hear the matter by rejecting the law and
asserting at least a limited right to abortion themselves.  

I think the vote in South Dakota is definitely an example of popular
constitutionalism and an interesting jurisdictional battle between those
who wanted the matter decided by courts and those who wanted the matter
decided by popular vote, and in this case (in contrast to your MA
example, I think), those in favor of rights preferred the political
process over the courts.

By the way, I am not shy about calling myself a fan of popular
constitutionalism, at least when it is exercised by legislatures,
especially by Congress (shameless self-promotion - I discuss Congress'
reliance on popular constitutionalism to protect individual rights in my
book, Enforcing Equality).  The legislative process provides a level of
transparency, accountability and procedural protections that are absent
from popular referenda.  Still referenda are interesting and reflect a
level of public engagement in constitutional policy that I think is
healthy for our civic culture.

Rebecca Zietlow

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Theodore W.
Ruger
Sent: Friday, November 10, 2006 10:07 AM
To: Conlawprof at lists.ucla.edu
Subject: Massachusetts and Michigan and popular constitutionalism

In a counterpoint to events in Michigan, the Massachusetts legislature 
yesterday procedurally blocked further debate on a proposed 
constitutional amendment to ban same-sex marriage.  Said one of the 
legislative leaders in a quote in today's NY Times:

"It's never been proper to put civil rights on the ballot." 

Some will say (and some may be right) that this rationale is pure 
pretext to justify an exercise of power politics.  But nonetheless an 
interesting attempt to distill decades of Carolene-style process theory 
into a pithy soundbite for public consumption.

Best,

Ted





-- 
Theodore W. Ruger
Professor of Law
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
(215) 573-6018
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