Michigan and popular constitutionalism

[RJLipkin at aol.com]

Good questions! The  baseline is central. One paradigmatic instance of 
consent, if anything is, is  voting. Are there others? Perhaps. My point is that 
consent must be taken  seriously. If we're unsure of the baselines, we need, both 
as scholars and  citizens, to make consent a central issue in both theories 
of  democracy--theories of American constitutionalism--and in political  
deliberation, including political campaigns. My remarks should not be taken as  the 
conceit that I have regarding the answers to these  questions.  I would, 
however, insist, that these questions must be taken  far more seriously than some 
scholars seem willing to do. 
 
        Regarding the Court, I  think I read in Sandy's new book evidence 
about a growing disillusionment on the  part of the public concerning trust in 
the Court. So even according to  acquiescence-theories, public consent to 
judicial review/supremacy is not  obvious.
 
        Also, almost most  people familiar with the issues of judicial 
review/supremacy have a list--a  long list probably--of Supreme Court decisions they 
would count as illegitimate  because, in their view the Court made law. Of 
course, our lists will  not include the same cases.  But if such lists bother 
us, the next step is  to realize--and join forces?--that the problem isn't with 
particular  Justices or Courts, but with the power itself. We will never 
cabin, at least not  permanently, a willful Court without identifying the problem 
of ultra  vires judicial decisions, a problem that cannot be cured by getting  
the "right" Justices on the Court or insisting on the "right" interpretive  
methodology.  History has taught us that much.
 
Bobby

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