Challenging Direct Democracy

15 Pages Posted: 3 Oct 2008 Last revised: 15 Sep 2010

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Date Written: September 8, 2010

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.

Suggested Citation

Chemerinsky, Erwin, Challenging Direct Democracy (September 8, 2010). Michigan State Law Review, Vol. 2007, p. 293, Summer 2007, UC Irvine School of Law Research Paper No. 2008-11, Available at SSRN: https://ssrn.com/abstract=1276471

Erwin Chemerinsky (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

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