Michigan's Controversial Proposition 2, Eliminating Affirmative Action Programs in the State: A Good Example of Popular Constitutionalism?

By SCOTT GERBER

Thursday, Nov. 16, 2006

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.

Prop 2 provides that "The state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."

Given that Prop 2 appears to be a textbook example of popular constitutionalism, I wanted to know how proponents of the theory felt about it. In this column, I'll discuss my attempts to do just that.

The 2003 U.S. Supreme Court Decisions that Prop 2 Nullifies

The campaign for the passage of Prop 2 was spearheaded by Ward Connerly and Jennifer Gratz. Connerly is a wealthy African-American Republican who helped pass a similar amendment to the California constitution a decade ago. Gratz was one of the plaintiffs in the 2003 decisions by the U.S. Supreme Court that held that the University of Michigan may, as a matter of federal constitutional law, consider the race of applicants as a factor in admissions decisions, provided that it isn't used too mechanically and that all applicants are evaluated on an individualized basis.

Gratz won her lawsuit against the University of Michigan undergraduate college to which she had been denied admission. The Supreme Court concluded in her case that it was unconstitutional for the college's admissions process to award an applicant a set number of points solely because the applicant wasn't white. (Gratz is white, and she didn't receive the extra points.)

Barbara Grutter lost her lawsuit against the University of Michigan's law school. The Court decided that race was used as only one factor among many in the law school's admissions process, and endorsed the approach articulated by Justice Lewis Powell in his famous separate opinion in University of California v. Bakke that race may be so used in order to achieve "diversity" in higher education.

By enacting Prop 2, the people of Michigan have rejected the use of state-sponsored affirmative action altogether as a matter of state constitutional law, and have thereby nullified the U.S. Supreme Court's decisions in the University of Michigan cases in the state of Michigan.

What Do Proponents of Popular Constitutionalism Think of Prop 2?

I became interested 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.

I believed that the BAMN litigation was destined to fail because the U.S. Supreme Court had ruled in the University of Michigan cases that Michigan may -- not must -- consider race in its admissions decisions under federal equal protection law, but the merits of the litigation weren't what interested me. I posted to ConLawProf: "Separate and apart from the merits of the argument presented to a court, I would be curious to learn what proponents of popular constitutionalism feel about this effort to ask a court to declare an amendment by 'the people themselves' unconstitutional."

I spent much of the next day and a half poring through the dozens of replies to my query.

The first reply maintained that Prop 2 was merely part of an "ongoing" debate "over the place of race and gender conscious diversity programs in public institutions." Under that interpretation of what happened on November 7, popular constitutionalism means that some people -- for example, administrators at the University of Michigan -- can ignore what the majority of the people have said if they don't want to hear it. That seemed strange to me, and I so informed the list. After all, what occurred on November 7 was a popularly-enacted amendment to the state's constitution.

Another reply insisted that Prop 2 wasn't a legitimate exercise of popular constitutionalism because its language was "so confusing, many people voted to ban affirmative action, believing that they were voting in favor of it." But readers can consult paragraph three of this column: The amendment unambiguously prohibits "preferential treatment" on the basis of, among other things, "race." The idea of preferential treatment is easy to understand, and this particular reply gave Michigan voters -- educated by numerous ads and counter-ads about Prop 2 -- much too little credit.

Another reply insisted that there was no reason why a popular constitutionalist should think that the people of Michigan should have the last word on the meaning of the federal constitution, "which is what the opponents of the amendment are relying on." But, of course, the people of Michigan amended their state constitution, not the federal constitution -- and as to the meaning of their state constitution, they surely do have the last word.

Moreover, as one of the handful of opponents of affirmative action in the legal professoriate replied, such a position is elitist. In other words, this conservative law professor explained, Prop 2 is "based in large part on a notion that constitutional guarantees of equality (even if the public isn't aware specifically of the 14th Amendment's [equal protection] clause) prohibit government discrimination based on race, period. Just like much of the opposition to gun control is based on a notion that there is a constitutional right to bear arms, even among people who've never read the Second Amendment. If 'popular constitutionalism' is restricted to individuals specifically studying specific parts of the Constitution and coming to informed conclusions about the wrongness of specific [U.S. Supreme Court] decisions, that would mean that 'popular constitutionalism' would mean 'law professor (and a few others) constitutionalism.' " (Emphasis added.)

I couldn't have said it better myself.

Another reply characterized what happened in Michigan on Election Day as a mere "policy" judgment by the people of Michigan, rather than a constitutional one. No one seemed to take this post seriously. After all, the Michigan constitution was changed on November 7.

Yet another reply suggested that a popular constitutionalist is simply opposed to judicial supremacy, not judicial review. Under this strand of popular constitutionalism, the author of the reply insisted, judges are permitted to interpret the constitution, but legislators are to have the final say.

I posted two reactions to this reply: (1) popular constitutionalists who seek to eliminate, rather than limit, judicial review -- Harvard's Mark Tushnet, for example -- can't be characterized in such a fashion; and (2) the Michigan legislature had nothing to do with what happened in Michigan on November 7-- again, the people of the state amended their constitution.

Popular Constitutionalist Opponents of Prop 2 May Now Better Understand the Value of Judicial Review

Arguments in favor of both popular constitutionalism and the BAMN litigation continued to flood my e-mail's inbox like ads from Amazon.com during the height of the holiday shopping season. I found none of them persuasive.

Finally, one did give me pause. A poster whom I know to be an African-American proponent of affirmative action reported that "only 14% (or something similar to that) of minority voters supported it. So [affirmative action] was rejected essentially by white voters." She remarked that this made her "question whether this vote was popular constitutionalism, or simply self-interest by whites who assume (falsely) their opportunities will be substantially limited by affirmative action."

For me, this post captured well why the popular constitutionalist assault on judicial review is misguided. As John Hart Ely reminded the legal professoriate a generation ago in his classic book Democracy and Distrust, judicial review must be available to ensure that the political process is functioning properly. When "discrete and insular" minorities are prohibited from participating fairly in the political process, a court must step in to eliminate the barriers to democratic participation.

Unfortunately for the opponents of Prop 2, the BAMN litigation isn't about correcting for barriers to democratic participation in Michigan on November 7 -- there weren't any barriers. Instead, the litigation is about asking a judge to tell the people of Michigan that they can't define what their constitution means through their state's constitutional amendment process. No judge is likely to say that to "the people themselves."


Scott Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. His debut legal thriller, The Law Clerk, is in press.

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