Mark Tushnet
… and that is whether the courts, or under what circumstances the courts would review, or could review, the constitutionality of the amendment and act themselves. Now, the reason this is an interesting question is, that is the question would be akin to the one that was raised this morning, is a method of amending the Constitution via some means other than that perscribed in Article 5 itself Constitutionally permissable? As an analytic matter, I don’t think the amendment can preclude review of its own constitutionality but the question is under what circumstances would the courts be able to address the question of the constitutionality of the Initiative Amendment and Democracy Act. And the answer is: it would take a while. That is, suppose the Amendment and Act are adopted by the processes they specify. Would there be an opportunity for judicial review at that point? And I think the answer to that is “no.” The adoption of the Amendment and Act put in place a process for adopting laws or constitutional amendments that themselves might be subject to judicial review because they would adversely affect or harm individuals, but the Act itself, the Amendment and the Act themselves, don’t have immediate concrete consequences on any individuals, and that’s what the courts require before they review the constitutionality of anything.
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