Re: Inquiry

[Robert Justin Lipkin]

       (1) One reason some people don't vote is the belief, true or false, that they cannot effect change. The proposed amendment itself, therefore, might encourage greater voter turnout.

             (2) I'm not sure how popular voting itself is any less conducive to 'consulting' (if that means considering) the public good than other kinds of political decision procedures. Considering the public good seems to be an important civic value that needs cultural support to be effective.

       (3) One of the problems the proposed amendment addresses is this. The judiciary has an effective final say over too many constitutional questions. The amendment would permit the electorate to override what it considers errant judicial decisions. If one doesn't think the Supreme Court continually creates constitutional revolutions, or more simply, is continually involved in rewriting constitutional law, then, I suppose, one would not think this is much of a problem. However, many observers, on both the left and the right, see the Court's role as problematic because it does in fact engage in judicial legislation. Of course, we have been over this ground many times before. But the Founders (and others later on) envisioned alternate means of constitutional review without judicial review or judicial supremacy.  In my view, it's time we reconsider such mechanisms. Even if one believes that the Constitution inexorably leads to judicial review or judicial supremacy, I would then say that the Founders chose the wrong mechanism for constitutional review. The proposed amendment would help correct this mistake. Over the long term, I would cast my lot with the electorate rather than the judges.

       The proposed amendment would enable the electorate for a period spanning two presidential elections to deliberate over the virtues of a Supreme Court decision and reverse it if they choose. (Yes, that would mean the amendment would make the "talk show" circuit.  But that's the culture we presently live in.) A congressional override, as Chief Justice Marshall once observed, might also work. However, revising the present method of amending the Constitution would have the benefits not only of possibly disciplining the Supreme Court, but also of enabling the electorate, who, in my book, are the only true sovereigns, to play a more regular and more effective role in creating "higher law."

Bobby Lipkin
Widener University School of Law
Delaware