Cover image for Taking the Constitution away from the courts
Taking the Constitution away from the courts
Tushnet, Mark V., 1945-
Personal Author:
Publication Information:
Princeton, N.J. : Princeton University Press, [1999]

Physical Description:
xii, 242 pages ; 24 cm
Reading Level:
1410 Lexile.
Format :


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KF4575 .T874 1999 Adult Non-Fiction Non-Fiction Area

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Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others.

Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.

Author Notes

Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center and the author of Red, White and Blue: A Critical Analysis of Constitutional Law and of a two-volume study of the career of Supreme Court justice Thurgood Marshall, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991. He is also the coauthor of a leading casebook on constitutional law and was from 1975 to 1985 the Secretary of the Conference on Critical Legal Studies.

Reviews 2

Library Journal Review

Tushnet, a professor of constitutional law at Georgetown and the author of several books on the subject, discusses new avenues of contemporary legal thought on the U.S. Constitution and judicial supremacy. Arguing that "constitutional theory must make sense of how people deal with the Constitution away from the courts if it is to provide an accurate account of our constitutional practice," he interprets the Constitution in light of Declaration of Independence principles: "a thin Constitution" to arrive at a "populist Constitutional law." Tushnet rejects a theory of judicial supremacy and looks at alternative means for legislators and executives to make judgments within a constitutional context. His ideas will challenge and inform academics, lawyers, and college students interested in the foundations of the American political system. This bold analysis for 21st-century constitutional interpretation is highly recommended.ÄSteven Puro, St. Louis Univ. (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Choice Review

Tushnet, a constitutional law professor at Georgetown and a member of the Critical Legal Studies movement, joins those who question the supremacy of the courts in interpreting the Constitution. He thinks that such interpretation should be returned to the people and their elected representatives either through judicial renunciation or constitutional amendment. For those who can suspend disbelief and imagine such an unlikely possibility, this book is a useful meditation on what might be. Tushnet believes that courts have not done nearly as well in interpreting and defending the essential "thin Constitution," which consists not of the judicial formulae that he so disparages but of the principles of equality and inalienable rights articulated in the Declaration of Independence, as is sometimes thought. Likewise, Tushnet argues that the elected branches and the people might do better than they now do in interpreting the Constitution, especially without the weight of existing judicial overhang. Tushnet's narrative is at times provocative and at others tedious. Many of the points are made more engagingly in Sanford Levinson's Constitutional Faith (1990). Upper-division undergraduates and above. J. R. Vile Middle Tennessee State University

Table of Contents

Prefacep. ix
Taking the Constitution Away from the Courtsp. 2
Prologuep. 3
Chapter 1 Against Judicial Supremacyp. 6
Chapter 2 Doing Constitutional Law outside the Courtsp. 33
Chapter 3 The Question of Capabilityp. 54
Chapter 4 The Constitutional Law of Religion outside the Courtsp. 72
Chapter 5 The Incentive-Compatible Constitutionp. 95
Chapter 6 Assessing Judicial Reviewp. 129
Chapter 7 Against Judicial Reviewp. 154
Chapter 8 Populist Constitutional Lawp. 177
Notesp. 195
Bibliographyp. 227
Indexp. 237