MCRI As “Popular Constitutionalism”!?
Scott Gerber, a law professor at Ohio Northern University, has two superb, must-read articles on Findlaw, here and here. (HatTip to Howard Bashman )
The first one, “The Legal Professoriate’s Case Against Judicial Review: Why the Academy Is Wrong, and Why It Matters,” discusses and criticizes a trendy new movement in the legal academy that opposes judicial review. Two of the most influential adherents of this view are professors Cass Sunstein of Chicago and Mark Tushnet of Harvard.
In One Case at a Time, published in 1999, Professor Sunstein argues for what he terms “judicial minimalism,” a theory of judicial review that limits the Court to the specific questions posed by a particular case and discourages it from handing down broad rulings with sweeping social consequences. Sunstein insists that the broad questions — whether abortion should be legal, the constitutionality of affirmative action, and so on — should be left for the people to decide through the process of “deliberative democracy.”
Professor Tushnet takes the argument one step farther. In Taking the Constitution Away from the Courts, also published in 1999, he calls for a constitutional amendment overruling Marbury. In Marbury’s place, Tushnet advocates “populist constitutional law”: a constitutional law that is defined outside of the courts by the people themselves, “whether we act in the streets, in the voting booths, or in legislatures as representatives of others.”
Read the whole article because that’s all I’m quoting, but I am primarily interested in Gerber’s second article, “Michigan’s Controversial Proposition 2, Eliminating Affirmative Action Programs in the State: A Good Example of Popular Constitutionalism?” You’ll see why in its first two paragraphs:
In a prior column, I described how a number of influential law professors have been insisting in recent years that judicial review should be drastically limited, or eliminated altogether, in favor of “popular constitutionalism” — a theory of constitutional interpretation that maintains that constitutional law should be defined outside of the courts by “the people themselves.”
On November 7, the people of Michigan did precisely that. They approved an amendment to the state’s constitution, commonly known as “Prop 2,” that bans state-sponsored affirmative action in Michigan.
The rest of the article just gets better and better. “I became interested,” Gerber writes,
in learning how proponents of popular constitutionalism felt about Prop 2 after a colleague posted on ConLawProf, a professional internet discussion list to which I subscribe (geared to constitutional law professors, as its name suggests), that a lawsuit had been filed by a pro-affirmative action group called “By Any Means Necessary,” or “BAMN” for short, requesting that a court invalidate the November 7 decision by the people of Michigan. On the one hand, Prop 2 is precisely what popular constitutionalists had envisioned: the people of Michigan had defined what the state’s constitution means. On the other hand, most popular constitutionalists are on the political Left and are very strong supporters of affirmative action.
The remainder of the article is a fascinating, revealing, and often humorous account of Gerber’s effort to find out what the proponents of the theory of popular constitutionalism think about its practice by the citizens of Michigan.
