Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”
Here’s the introduction:
The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.
Let there be no doubt of its effects: 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 at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.
What I want to argue this evening is that the effects of Proposition 209, or your 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. Though I agree with so much of what has been said by the other speakers today, each of them, to some extent, supported the use of the initiative process. Each of them, at least in some way, seemed to advocate direct democracy as a good thing, at least in some circumstances.
I want to take a very different position. I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why.
Turtle Talk 