Academic

Chemerinsky on Direct Democracy

By Lawrence Solum

Erwin Chemerinsky (University of California, Irvine Law School) has posted Challenging Direct Democracy (Michigan State Law Review, Vol. 2007, p. 293, Summer) on SSRN.  Here is the abstract:

Let there be no doubt of the effects of the Michigan Civil Rights Initiative: It's going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California law schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was a comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

The effects of Proposition 209, or the Michigan Civil Rights Initiative, are not atypical with regard to initiatives, but are representative. Time and again, initiatives are used to disadvantage minorities: racial minorities, language minorities, sexual orientation minorities, political minorities. 

I argue that direct democracy is undesirable and unconstitutional. The Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. I make two points. First, direct democracy is undesirable. This is a normative argument; it's not an argument about constitutional doctrine. Second, direct democracy is unconstitutional. I make a series of different arguments as to why.

Full post as published by Legal Theory Blog on October 10, 2008 (boomark / email).