Taking the Constitution Away from the Courts

Taking the Constitution Away from the Courts

Taking the Constitution Away from the Courts

Taking the Constitution Away from the Courts


Mark Tushnet challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. 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". His clarion call for a new kind of constitutional law is 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.


The people have the power To redeem the work of fools Upon the meek the graces shower It's decreed the people rule.

—Patti Smith

I heard Joan Osborne perform Patti Smith's song at a concert to benefit the political group Voters for Choice on the anniversary of Roe v. Wade, which I attend each year to remind myself of my small role in the Court's decision. (As a law clerk, I drafted a letter from Justice Thurgood Marshall to Justice Harry Blackmun, which some have thought influenced the structure of Justice Blackmun's final opinion.) the tension between celebrating a Supreme Court decision finding abortion laws unconstitutional and extolling popular political power is my theme here.

We can take the Constitution away from the courts in several ways. We could deny them the final word about the Constitution's meaning (the subject of chapter 1), or we could deny them any role in Constitutional interpretation whatever (the subject of chapter 7). Chapters 5 and 6 argue that taking the Constitution away from the courts in this sense need not occasion deep concern about the preservation of our liberties. We can also take the Constitution away from the courts and embed it in our own deliberations. Chapters 2, 3, and 4 describe how we can think about the Constitution without having the courts' decisions to guide us. the overall project is summarized in chapter 8's description of populist constitutional law.

Legislators and voters routinely face policy questions that also raise constitutional issues: Should they vote for a proposal that the Supreme Court might hold unconstitutional? What if the Court has already held a similar proposal unconstitutional? Less often, they have to consider whether to defy a Supreme Court ruling directly. How should we think about these questions? What implications does the Constitution have outside the courts? As we will see, questions about the Constitution outside the courts arise in many places. They are different, however, from the question, What does the First Amendment mean? My aim in this book is to clarify what we have to think about to answer questions of the first type responsibly.

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