Kelo, Grutter, and Popular Responses to Unpopular Decisions: 9 am. Moderated by the Hon. Robert Young (Michigan Supreme Court). Panelists: Prof. Sherman Clark (UMich Law), Ward Connerly (American Civil Rights Institute), and Prof. Marci Hamilton (Cardozo-Yeshiva and Findlaw).
As previously blogged, the Federalist Society event was picked by a group of Wayne State law students. The pachyderm walked up to the law school in the morning and heard, “Ward Connerly says ‘Jim Crow.” We say, ‘Hell, no!’ Ward Connerly says ‘Jim Crow.” We say, ‘Hell, no!’” BAMN made it their mission to run Mr. Connerly out of the state. Mr. Connerly reportedly went outside and offered coffee to the picketers. (News here.)
The picketers eventually stopped picketing and went to sit in on the panel. The panel itself:
Prof. Sherman Clark put forth the hypothesis that the referendum process does not reflect the the will of the people. Through the legislative and election processes, the people express both their preferences and their priorities. When a small minority chooses to expend all of its political capital on an issue important to them, it ought not to be undone by the majority. According to Prof. Clark, the referendum or ballot initiative process allows some groups to enact into law almost every issue of importance to them; they are not forced to make the same trade-offs that political minorities make. Essentially, majorities are allowed to legislate into being both the issues which were important to them during the election, and the issues which they scarified during the election process. Through the ballot initiative process, they strip minorities of the ability to enact issues of special importance to them.
Prof. Clark’s commentary is reminiscent of the use of cumulative voting for the elections of boards of directors by shareholders. Much as such arrangements permit minority shareholders to consolidate their votes for the election of one or two directors, the election process (as explicated by Prof. Clark) allows political minorities to aggregate their political capital in the pursuit of certain issues of particular importance.
Prof. Hamilton discussed the referendum process as an expression of popular will, but expressed skepticism about the wisdom of enacting the popular will into law. The Framers designed a representative democracy so as to avoid an exercise of power by the direct will of the majority. In a direct democracy, interest groups play a significant role in 1) choosing what is on the referendum; 2) how those issues are framed; and 2) how those issues are presented to the people. This process is entirely different from the candidacy process.
Prof. Hamilton also remarked on the nature of the legislative process as opposed to the binary nature of ballot initiatives. Legislators are able to debate the merits and limitations of a proposal, as well as its effect upon other laws. According to Prof. Hamilton, ballot initiatives tend to decrease taxes and public spending, but increase public services. Furthermore, an initiative which locks in a constitutional guarantee requires more deliberation. While Kelo ignited debate and educated the public about the Takings Clause, its departure from precedent was overstated: it merely clarified the doctrine that had been law for quite some time. Prof. Hamilton brought up Empl. Div. v. Smith, which was unpopular at the time and was the impetus for the Religious Freedom Restoration Act. She pointed to this as an example of the ability of the legislature to respond to unpopular Court decisions – a “hybrid democracy.”
Both Professors Hamilton and Clark remarked upon the inability of the legislature to limit its own power. Prof. Clark stated that certain issues that cannot be handled through the legislative process, such as term limits, would not be inappropriate for a ballot initiative. Prof. Hamilton mentioned that America has never passed a Constitutional Amendment to increase legislative accountability. (Perhaps the 27th Amendment cannot be construed as one of accountability; alternatively, as it has no practical effect, it can be safely ignored.)
Mr. Connerly quoted Dr. Martin Luther King, Jr., and stated that the Grutter decision violates the 1964 Civil Rights Act. With specific regard to the subject of race, Mr. Connerly stated that no legislative body is willing to discuss race; most recently, a Nebraska legislator was coerced into not discussing it. There is a high threshold for getting the attention of the legislature. Initiatives are a single-subject issue, propounded without earmarks, and subject to full discussion. [Ironically enough, it was at about this time that the BAMN protestors interrupted the panel while yelling, "Your ideas will never see the light of day!"]
Justice Young asked Mr. Connerly if one could use initiatives to constitutionalise one’s policy preferences. Prof. Clark stated that he did not agree with the underlying assumptions; Prof. Hamilton stated that Kelo and similar decisions open the doors for state and federal legislatures to change this situation; initiatives and legislation are both functional. Roe is an example of judicial activism; if repealed, the statutory scheme brought up around it – that which is predicated upon the legality of abortion – will remain. Goodridge [and, presumably, similar decisions in Hawaii and Vermont], according to Prof. Hamilton, deserves extended deliberation which should not be cut off via the democratic process. The judiciary is an “oligarchic policy-making organ,” characterised by low transaction costs.
Coverage to continue. Conference attendees: please feel free to suggest additions or corrections, as appropriate.