Taking the Constitution Away from the Courts

Mark Tushnet, spurred by thoughts stewing for at least a decade, proposes a new conception of constitutional law, one in which the Supreme Court is removed as the paramount authority on constitutional issues and replaced with the legislature: "populist constitutional law." Early chapters examine and argue against the current foundations of judicial supremacy. For each typical argument, usually accompanied with a corresponding article or book that has defended the position, the author provides reasons to be skeptical. In so doing he reveals a complex understanding of human behavior and the incentives that affect it. He appreciates the dynamism of human institutions: just because an actor acts thus now, does not imply he will act similarly with different sets of incentives. As grist he uses cases, some hypothetical, and examines their intricacies. What is the preferred result, and how certain are we that the current system fosters that result and an alternative would not? After weakening the foundation for the current system, he examines the role of religion in political discourse, drawing heavily on Rawls and his interpreters. His point in so doing is not exactly clear: that religion is important is a fair point to make, but why the legislature and not the courts should be the branch to incorporate it is not answered. In chapter five, the author discusses whether or not the Constitution, specifically in its "thin" version (the ideals of the Constitution, as opposed to its structure), is self-enforcing. The political system is a complex process, and Tushnet's argument tracks that process roughly with divergent, branching commentary. He concludes, honestly, with a set of conditions that would need to be met to make populist constitutional law attractive. He then goes on to strike his first partisan note(I believe it is within this chapter that Professor Tushnet labels abortion protestors as "anti-choice," not "pro-life"), by assessing from a liberal perspective the recent incarnations of judicial review. Liberals who place their faith in the Court have overestimated their winnings for several reasons: 1. political reaction is often swift and contrary, 2. the Court oftentimes simply feels out already existing democratic impulses. Ultimately, he dismisses the Court as being, at best, marginally detrimental to liberal causes. Chapter seven investigates a hypothetical world without judicial review. How would other political institutions react and grow? And what role, if any, would or should be left for the courts? None, Tushnet seems to conclude. Having tipped his toe into partisan waters in the preceding chapters, the author begins to wax liberal at the close of the chapter, addressing first critical legal studies' bête noire-rights rhetoric-and its support amongst critical race theorists. He dismisses the issue as tangential to the topic at hand, and concludes with a brief of appraisal of how to make populist constitu

The sole purpose of the Constitution is to provide every individuals with their god given rights. (as our forefathers saw them) The author describes the world as he sees it today; he challenges a world of judicial review and judicial supremacy. The author argues for us to take the rights that we are granted in the constitution and defend them, defining ourselves as "We the People of the United States..." The views are established using past judicial decisions with "judicial legitimacy" being determined by the outcome of the decision. Tushnet argues that we are so used to the Supreme Court being the "protector of the constitution" that we are incapable of defending it ourselves. An example of the Communist Scare was mentioned where opponents of McCarthy did nothing to oppose him, because they believed that the Supreme Court would declare his actions unconstitutional. The author asks us to step up and speak out when something is unconstitutional, taking a proactive role in the defense of the American Constitution.

We know the stereotype: liberals love the courts, conservatives attack them as undemocratic. Like most stereotypes, it is based on truth, but out of date. Nowadays, many on the right are calling for more judicial action -- e.g., striking down laws passed by Congress as outside the Commerce power, or violative of the Second Amendment. And many on the left are now advocates of judicial restraint. One may explain this away by noting that the switch is suspiciously correlated with a switch in the ideological attitude of the courts. But Mark Tushnet's book can't be explained away on these grounds. As Tushnet notes: "we have to remember that we buy judicial review wholesale: In getting the decisions we like, we run the risk of decisions we despise." (p. 141). More importantly, Tushnet notes that winning in court doesn't mean as much as you might think. Roe v. Wade energized the antiabortion movement and took the wind out of the sails of prochoice forces; a series of legislative victories producing the same result may have been less divisive, and more final.Tushnet's solution is given away by the title: taking the constitution away from the courts, and returning constitutional interpretation to the people. He also argues -- rightly, I think -- for paying far more attention to the principles set out in the Declaration of Independence. Early commentators, like Justice Joseph Story, saw the Declaration as the animator of the Constitution. More recently the Declaration has been largely ignored -- perhaps by those who fear its radical implications. Tushnet is right to suggest reversing this trend.I am rather dubious about whether Tushnet's populist enterprise will succeed, but his book raises some excellent questions. It is certainly the case that constitutional debate over the past several decades has been too elitist, too narrow, and too influenced by academic fashion and interest group politics. In calling attention to this fact, Tushnet has produced an interesting, provocative book that should be read by anyone interested in the future of constitutional debate and decision.