Taking the Constitution Away from the Courts

Taking the Constitution Away from the Courts

Mark Tushnet
Copyright Date: 1999
Pages: 254
https://www.jstor.org/stable/j.ctt7spsn
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    Taking the Constitution Away from the Courts
    Book Description:

    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.

    eISBN: 978-1-4008-2297-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-2)
  4. PROLOGUE
    (pp. 3-5)

    Adell Sherbert, a Seventh Day Adventist, had a five-day workweek at a South Carolina textile mill. This schedule allowed her to avoid work on Saturday, her Sabbath. The mill changed its schedule in 1959, and started to require all workers to work six days a week. Mrs. Sherbert was fired when she refused to work on Saturday. She applied for unemployment compensation, but South Carolina’s government refused to pay, saying that she had failed to accept suitable employment, without having good cause for the refusal. Mrs. Sherbert said the government’s action violated her First Amendment right to free exercise of...

  5. Chapter One AGAINST JUDICIAL SUPREMACY
    (pp. 6-32)

    In 1982 the Supreme Court held unconstitutional a Texas statute denying a free public education to children of noncitizens illegally present in this country (Plyler v. Doe).¹ In 1994 California’s voters approved Proposition 187, an amendment to the state’s constitution that, among other things, would deny a free public education to that same class of children. A federal court promptly held this part of Proposition 187 unconstitutional and barred state officials from enforcing it.²

    Consider the position of a state legislator after the voters approved Proposition 187. The legislature has to enact some new statutes to enforce Proposition 187. But...

  6. Chapter Two DOING CONSTITUTIONAL LAW OUTSIDE THE COURTS
    (pp. 33-53)

    Chapter 1 argued that people acting outside the courts can ignore what the courts say about the Constitution, as long as they are pursuing reasonable interpretations of the thin Constitution. This chapter takes up seemingly more difficult questions: In implementing the thin Constitution, can people acting outside the courts ignore the thick one? How much of the Constitution can we safely take away from the courts? Developing the answers to these questions requires us to examine the reasons we might have for directing public officials to refrain from acting on their best judgments about what they ought to do. Those...

  7. Chapter Three THE QUESTION OF CAPABILITY
    (pp. 54-71)

    Chapter 2 concluded that populist constitutionalism could be defended when talented public officials conscientiously considered the thin Constitution’s implications for the policies they sought to advance. But will public officials be conscientious? If we take the Constitution away from the courts, will it be lodged in people whose judgments are trustworthy? We can divide those questions into two parts: Do the officials have the information, training, and talent to take the thin Constitution seriously? Do they have incentives to do so? As the discussion of police officers in chapter 2 suggests, we will get different answers when we ask about...

  8. Chapter Four THE CONSTITUTIONAL LAW OF RELIGION OUTSIDE THE COURTS
    (pp. 72-94)

    Columnist Armstrong Williams reported some comments by his friend Justice Clarence Thomas during the summer of 1995. According to Williams, Thomas invoked his religion to explain his position against affirmative action: “You cannot embrace racism to deal with racism. It’s not Christian. . . . If I type one word in my word processor in one opinion against [white people], I break God’s law. . . . If I write racism into law, then I am in God’s eyes no better than they are.”¹

    All Justice Thomas said was that his interpretation of the Constitution was consistent with his religious...

  9. Chapter Five THE INCENTIVE-COMPATIBLE CONSTITUTION
    (pp. 95-128)

    So far I have argued against the position that the Constitutionoughtto be committed entirely to the courts, and that legislatures might do a decent job of implementing the thin Constitution. That still leaves open the question of whether legislatures actuallywilldo a decent job. Will legislators run hog-wild if we leave them on their own? Do we need to make sure that they behave appropriately by subjecting whatever they do to the courts’ scrutiny? An analogy drawn from economics may help clarify the issues here.

    Suppose we have some goal we want to reach—selling as many...

  10. Chapter Six ASSESSING JUDICIAL REVIEW
    (pp. 129-153)

    Political scientist Peter Irons wrote a book about sixteen people who took their constitutional claims to the Supreme Court. They included Mary Beth Tinker, who successfully challenged her school board’s policy barring her from wearing a black armband to protest the war in Vietnam, and Barbara Elfbrandt, a Quaker teacher who refused to take an oath supporting the Constitution. Irons called his bookThe Courage of Their Convictions

    Recently the winners in important Supreme Court cases upholding First Amendment claims have been James Buckley, brother of publisher William F. Buckley who became a United States Senator and federal court judge,...

  11. Chapter Seven AGAINST JUDICIAL REVIEW
    (pp. 154-176)

    Suppose the Supreme Court issued the following statement one October morning:

    In 1803 we launched a great experiment—judicial review. We believe the nation benefited from judicial review over the past two centuries. Today, however, the gains from further exercises of judicial review no longer exceed the losses. We have therefore decided to end the experiment in 2003. We will no longer invalidate statutes, state or federal, on the ground that they violate the Constitution.

    What would happen after such an announcement? Of course there would be a rush to get any possible constitutional challenges to existing laws in under...

  12. Chapter Eight POPULIST CONSTITUTIONAL LAW
    (pp. 177-194)

    Liberals today seem to have a deep-rooted fear of voting. They are more enthusiastic about judicial review than recent experience justifies, because they are afraid of what the people will do. They ask the courts to review legislation adopted by popular initiative and referendum more aggressively than statutes legislatures adopt. They shudder at the prospect of a constitutional convention at which the people would think about redesigning the structure through which we govern ourselves. And Kathleen Sullivan, a prominent liberal constitutional scholar, has diagnosed the disease ofamendmentitis—an unjustified desire by the people to amend the Constitution.¹ I conclude...

  13. NOTES
    (pp. 195-226)
  14. BIBLIOGRAPHY
    (pp. 227-236)
  15. INDEX
    (pp. 237-242)