Taking Back the Constitution

Taking Back the Constitution
Author: Mark Tushnet
Publisher: Yale University Press
Total Pages: 321
Release: 2020-07-14
Genre: Law
ISBN: 0300252900

How the Supreme Court’s move to the right has distorted both logic and the Constitution What Supreme Court justices do is far more than just “calling balls and strikes.” The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore to the other branches of government a role in deciding constitutional questions.

Taking the Constitution Away from the Courts

Taking the Constitution Away from the Courts
Author: Mark Tushnet
Publisher: Princeton University Press
Total Pages: 255
Release: 2000-07-24
Genre: Law
ISBN: 1400822971

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.

Taking the Constitution Seriously

Taking the Constitution Seriously
Author: Walter Berns
Publisher:
Total Pages: 292
Release: 1992
Genre: Political Science
ISBN:

The seven formidable essays that make up this new analysis explore the Constitution and its central place in the development of the first nation to be built on the foundation of the rights of man. Of particular interest is Berns's view of minorities under the Constitution. Overall, the book will be well received by serious students of the American political experience, but others might find it difficult going.

Reclaiming Accountability

Reclaiming Accountability
Author: Heidi Kitrosser
Publisher: University of Chicago Press
Total Pages: 292
Release: 2015-01-06
Genre: Law
ISBN: 022619177X

Americans tend to believe in government that is transparent and accountable. Those who govern us work for us, and therefore they must also answer to us. But how do we reconcile calls for greater accountability with the competing need for secrecy, especially in matters of national security? Those two imperatives are usually taken to be antithetical, but Heidi Kitrosser argues convincingly that this is not the case—and that our concern ought to lie not with secrecy, but with the sort of unchecked secrecy that can result from “presidentialism,” or constitutional arguments for broad executive control of information. In Reclaiming Accountability, Kitrosser traces presidentialism from its start as part of a decades-old legal movement through its appearance during the Bush and Obama administrations, demonstrating its effects on secrecy throughout. Taking readers through the key presidentialist arguments—including “supremacy” and “unitary executive theory”—she explains how these arguments misread the Constitution in a way that is profoundly at odds with democratic principles. Kitrosser’s own reading offers a powerful corrective, showing how the Constitution provides myriad tools, including the power of Congress and the courts to enforce checks on presidential power, through which we could reclaim government accountability.

Why the Constitution Matters

Why the Constitution Matters
Author: Mark Tushnet
Publisher: Yale University Press
Total Pages: 143
Release: 2010-01-01
Genre: Law
ISBN: 0300165358

A major legal scholar presents an empowering reassessment of our nation’s most essential document 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 only why the Constitution matters to each of us but also, and perhaps more important, how it matters.

Originalism and the Good Constitution

Originalism and the Good Constitution
Author: John O. McGinnis
Publisher: Harvard University Press
Total Pages: 309
Release: 2013-11-01
Genre: Law
ISBN: 067472626X

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.

The Constitution of the United States of America

The Constitution of the United States of America
Author: Mark Tushnet
Publisher: Bloomsbury Publishing
Total Pages: 344
Release: 2015-08-27
Genre: Law
ISBN: 1509901760

This is the second edition of Professor Tushnet's short critical introduction to the history and current meaning of the United States' Constitution. It is organised around wo themes: first, the US Constitution is old, short, and difficult to amend. Second, the Constitution creates a structure of political opportunities that allows political actors, icluding political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Deploying these themes to examine the structure f the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way he US constitutional system has developed and what it means today.

Constitutional Redemption

Constitutional Redemption
Author: J. M. Balkin
Publisher: Harvard University Press
Total Pages: 305
Release: 2011-05-09
Genre: History
ISBN: 0674058747

Political constitutions are compromises with injustice. What makes the U.S. Constitution legitimate is Americans’ faith that the constitutional system can be made “a more perfect union.” Balkin argues that the American constitutional project is based in hope and a narrative of shared redemption, and its destiny is still over the horizon.

The Anti-Oligarchy Constitution

The Anti-Oligarchy Constitution
Author: Joseph Fishkin
Publisher: Harvard University Press
Total Pages: 641
Release: 2022-01-11
Genre: Law
ISBN: 067498062X

A bold call to reclaim an American tradition that argues the Constitution imposes a duty on government to fight oligarchy and ensure broadly shared wealth. Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the Òrepublican form of governmentÓ the Constitution requires. Today, courts enforce the Constitution as if it has almost nothing to say about this threat. But as Joseph Fishkin and William Forbath show in this revolutionary retelling of constitutional history, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought. Fishkin and Forbath demonstrate that reformers, legislators, and even judges working in this Òdemocracy of opportunityÓ tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to fight for the constitutional right to form a union. During Reconstruction, Radical Republicans argued in this tradition that racial equality required breaking up the oligarchy of slave power and distributing wealth and opportunity to former slaves and their descendants. President Franklin Roosevelt and the New Dealers built their politics around this tradition, winning the fight against the Òeconomic royalistsÓ and Òindustrial despots.Ó But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.

The Cult of the Constitution

The Cult of the Constitution
Author: Mary Anne Franks
Publisher: Stanford University Press
Total Pages: 310
Release: 2019-05-14
Genre: Political Science
ISBN: 1503609103

“A powerful challenge to the prevailing constitutional orthodoxy of the right and the left . . . A deeply troubling and absolutely vital book” (Mark Joseph Stern, Slate). In this provocative book, Mary Anne Franks examines the thin line between constitutional fidelity and constitutional fundamentalism. The Cult of the Constitution reveals how deep fundamentalist strains in both conservative and liberal American thought keep the Constitution in the service of white male supremacy. Franks demonstrates how constitutional fundamentalists read the Constitution selectively and self-servingly, thus undermining the integrity of the document as a whole. She goes on to argue that economic and civil libertarianism have merged to produce a deregulatory, “free-market” approach to constitutional rights that achieves fullest expression in the idealization of the Internet. The fetishization of the first and second amendments has blurred the boundaries between conduct and speech and between veneration and violence. But the Constitution itself contains the antidote to fundamentalism. The Cult of the Constitution lays bare the dark, antidemocratic consequences of constitutional fundamentalism and urges readers to take the Constitution seriously, not selectively.