'The People' and 'The People': Disaggregating Citizen Lawmaking from Popular Constitutionalism

Abstract

This essay examines the relationship between popular constitutionalism and ballot initiatives like the anti-Affirmative Action Michigan Civil Rights Initiative (MCRI). I argue that dominant theories of popular constitutionalism today can be understood - and the borders they share with the wider corpus of studies on constitutional change can be demarcated - by thinking of constitutions that either live among people or that are entombed in glass cases. This analysis distinguishes between popular constitutionalism and a ballot initiative-oriented notion of constitutional change that I call initiative constitutionalism. This Essay argues that under an among people definition of popular constitutionalism, however else the MCRI might be understood, it should not be understood as an expression of popular constitutionalism. Popular constitutionalism and initiative constitutionalism advance substantially different models for tempering democracy and other fundamental values. To conflate these models is to eliminate our chance to debate the merits of each, and instead to assume that each of their products has balanced democracy and other fundamental values in the same (and proper) way. This assumption is worth questioning. In bypassing the affirmative action debate, then, I seek not to avoid it, but to clarify the context in which we place it. Such a project is especially important today, because popular constitutionalism is the legal academy's theory du jour.