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Why the Constitution Matters

Why the Constitution Matters

mark tushnet
Copyright Date: 2010
Published by: Yale University Press
Pages: 224
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  • Book Info
    Why the Constitution Matters
    Book Description:

    In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties-not Supreme Court decisions-are the true engines of constitutional change in our system. This message will empower all citizens who use direct political action to define and protect our rights and liberties as Americans.

    Unlike legal scholars who consider the Constitution only as a blueprint for American democracy, Tushnet focuses on the ways it serves as a framework for political debate. Each branch of government draws substantive inspiration and procedural structure from the Constitution but can effect change only when there is the political will to carry it out. Tushnet's political understanding of the Constitution therefore does not demand that citizens pore over the specifics of each Supreme Court decision in order to improve our nation. Instead, by providing key facts about Congress, the president, and the nature of the current constitutional regime, his book reveals not onlywhythe Constitution matters to each of us but also, and perhaps more important,howit matters.

    eISBN: 978-0-300-16535-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. introduction
    (pp. 1-18)

    Why does the Constitution matter? If you’ve picked up this book, you probably already have an answer to this question. The Constitution matters, you’re likely to think, because it protects our fundamental rights. The answer I provide here is different: The Constitution matters because it provides a structure for our politics. It’s politics, not “the Constitution,” that is the ultimate—and sometimes the proximate—source for whatever protection we have for our fundamental rights.

    Here’s a quick introduction to the reasons why your first answer, about fundamental rights, isn’t quite right.

    People disagree about what our fundamental rights are, and...

  4. 1 how the constitution matters
    (pp. 19-92)

    What does it take for you to get the national health care policy you want? The first thing that’s going to come to mind is that you have to get Congress to enact the policy and the president to sign the bill.¹ After that happens, of course, the Supreme Court has to uphold the statute. When it does—and, on the whole, it will—the Court has to make two decisions. It has to say that the statute lies within the powers granted to the national government by the Constitution, and it has to say that the statute doesn’t violate...

  5. 2 how the supreme court matters
    (pp. 93-150)

    Suppose the Supreme Court overruledRoe v. Wade(or substitute whatever important Supreme Court opinion you want). One day women all over the country had a right to choose to have an abortion if that was what they wanted. The next day women in some, perhaps many, states wouldn’t have that right. Obviously this is a situation in which the Constitution matters. Or so it would seem.

    Appearances are deceiving—or perhaps more precisely, the example shows not that the Constitution matters but that the Supreme Court does. And even that isn’t so clear when we start to think about...

  6. 3 how to make the constitution matter more—or differently
    (pp. 151-174)

    Some may find my argument disquieting, and not simply because it deemphasizes the “fundamental rights” answer to the question of whether the Constitution matters in favor of an account in which the Constitution matters because it creates and structures our politics. I believe that bringing politics to the fore will actually improve the constitutional discussions we have when we talk about a recent Supreme Court decision or consider a nomination to the Supreme Court. And, because the structure the Constitution creates for our politics is rather loose, we can work around its restrictive provisions if we want to—and in...

  7. sources
    (pp. 175-180)
  8. acknowledgments
    (pp. 181-182)
  9. index
    (pp. 183-188)
  10. Back Matter
    (pp. 189-189)