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Publication Types
Categories
Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis (Hart Publ'g 2d rev. ed. 2015).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
"This is the second edition of Professor Mark Tushnet's excellent short critical introduction to the history and current meaning of the United States' Constitution. It is organized around two themes: first, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional 'interpretation' - especially by the US Supreme Court - the primary mechanism for adapting the Constitution to ever-changing reality. Second, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals, even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today." --Amazon
Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar Publ'g 2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Separation of Powers
,
Comparative Law
Type: Book
Abstract
"Mark Tushnet, a world-renowned scholar of constitutional law, presents an introduction to comparative constitutional law through an analysis of topics at the cutting-edge of contemporary scholarship. His authoritative study investigates constitution making, including the problem of unconstitutional constitutional amendments; recent developments in forms of constitutional review, including 'the battle of the courts'; proportionality analysis and its alternatives; and the emergence of a new 'transparency' branch in constitutions around the world. Throughout, the book draws upon examples from a wide range of nations, demonstrating that the field of comparative constitutional law now truly encompasses the world." -- Publisher's description.
Routledge Handbook of Constitutional Law (Mark Tushnet, Thomas Fleiner & Cheryl Saunders eds., Routledge 2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
The Routledge Handbook of Constitutional Law is an advanced level reference work which surveys the current state of constitutional law. Featuring new, specially commissioned papers by a range of leading scholars from around the world, it offers a comprehensive overview of the field as well as identifying promising avenues for future research. The book presents the key issues in constitutional law thematically allowing for a truly comparative approach to the subject. It also pays particular attention to constitutional design, identifying and evaluating various solutions to the challenges involved in constitutional architecture.
Mark Tushnet, Law As a Crisis for the Rule of Law: A Speculative Essay (Aug. 30, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Corruption
,
Politics & Political Theory
Type: Other
Abstract
This brief essay, for a collection edited by Carolina Deik, “Crisis of the Rule of Law,” to be published in Colombia, describes some ways in which too much law can be as problematic as too little law. After noting that law’s complexity can introduce some of the arbitrariness that the rule of law seeks to overcome, the essay uses the example of anti-corruption law to suggest how enforcing the law at the retail level might weaken the overall system of the rule of law by eroding public confidence in public institutions, and, sometimes, by weakening those institutions themselves.
Mark Tushnet, The Lawyer/Judge as Republican Hero, 70 Stan. L. Rev. Online 29 (2017) (reviewing Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (2017)).
Categories:
Legal Profession
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Arbitration
,
Litigation & Settlement
,
Mediation
,
Practice & Procedure
,
Courts
,
Judges & Jurisprudence
,
Legal Services
,
Legal History
Type: Article
Mark Tushnet, Book Review: Alfred L. Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War (2016), J. Interdisciplinary Hist. 102 (2017).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Legal History
Type: Article
Abstract
Brophy expands the literature about pro-slavery thought by analyzing the “ideas in circulation” at southern colleges and literary societies before turning to the pro-slavery thought of several well-known southern jurists. These popular ideas are more fugitive, less formal, but probably more widely available in the aggregate and thus more influential than systematic treatises. Brophy’s theme is that as the years passed, slavery’s defenders were increasingly attracted to a utilitarian defense of the institution as beneficial for masters and slaves alike. Important to the utilitarian defense was an emphasis on the importance of attending to the specific circumstances of society, in contrast to what Brophy’s subjects described as the sterile abstractions of Enlightenment thought. Much of the pro-slavery thought that Brophy describes will be familiar to specialists, but his work’s strength lies in bringing to historians’ attention a set of previously neglected materials. Brophy’s discussion of cases dealing with the legal limits to masters’ power to free their slaves supplements the attention typically given to Thomas Ruffin’s opinion in State v. Mann. Two of his chapters—one about Brown University’s president Francis Wayland and one about the travails of Frederick A. P. Bernard at the University of Mississippi—may be of greater interest to historians of education than to historians of pro-slavery thought. The discussion of Wayland brings to the surface concerns about how to evaluate past actions known today to be evil that are only implicit elsewhere the book. Brophy’s discussion of Thomas R. R. Cobb of Georgia, author of a major pro-slavery legal treatise, counterposes “cold legal reasoning” in slavery’s defense to the “passionate … sympathy” expressed in anti-slavery arguments (227). These “cold calculations of utility … derived from a perception of hierarchy … evidenced by nature” (231). That juxtaposition also appears in Brophy’s discussion of Ruffin, William Gaston of North Carolina, and Joseph Henry Lumpkin, the first justice of Georgia’s Supreme Court. Again, the formulation is familiar in previous work about the law of slavery, but Brophy valuably brings it to a new set of readers. Brophy notes in passing that slavery’s defenders sometimes also relied on sympathy, especially in their arguments that slave owners treated the human beings that they owned better than capitalist employers treated the human beings who worked for them. A more complete discussion of pro-slavery thought, even in its watered-down form in faculty lectures and literary addresses, might lead to some tempering of Brophy’s characterization of such arguments as utilitarian. His stress on the importance of taking local conditions into account is one area in which he might have deepened his analysis. Yet, even as it stands, Brophy’s book is a well-crafted introduction to pro-slavery thought as expressed in venues that historians have not visited often enough.
Mark Tushnet, Enforcement of National Law against Subnational Units in the US, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 316 (András Jakab & Dimitry Kochenov eds., 2017).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Federalism
,
Congress & Legislation
,
Courts
Type: Book
Abstract
This chapter is primarily an exposition of the applicable constitutional doctrine on the enforcement of national law against subnational units in the US. It also offers some general observations about the underlying theory of federalism that generates US constitutional doctrine. In the US the question of the enforceability of national law against state governments is a matter of some theoretical interest but relatively little practical importance. The reasons for that situation are a combination of institutional and historical conditions, which the chapter refers to in more detail. For those outside the US, however, the primary message here is that the constitutional doctrine dealing with this sort of enforcement is quite limited in scope and importance, in contrast to its importance in systems whose constitutions create a less centralized version of constitutional federalism.
Mark Tushnet, The Boundaries of Comparative Law, 13 Eur. Const. L. Rev. 13 (2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Critical Legal Studies
,
Comparative Law
Type: Article
Abstract
Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship.
Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (N.Y. Univ. Press 2017).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Abstract
Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.
Mark Tushnet, The Coverage/Protection Distinction in the Law of Freedom of Speech — An Essay on Meta-Doctrine in Constitutional Law, 25 Wm. & Mary Bill of Rts. J. 1073 (2017).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.
Mark Tushnet, Book Review, 47 J. Interdisciplinary Hist. 405 (2017)(reviewing Brett Christophers, The Great Leveler: Capitalism and Competition in the Court of Law (2016)).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
Mark Tushnet, "Parents Involved" and the Struggle for Historical Memory, 91 Ind. L.J. 493 (2016).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Race & Ethnicity
,
Law & Social Change
Type: Article
Mark V. Tushnet, Jan Deutsch: An Appreciation (Harvard Pub. Law Working Paper No. 16-42, Aug. 20, 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Law & Political Theory
,
Biography & Tribute
Type: Article
Abstract
This brief Appreciation of the late Jan Deutsch sketches several "encounters" I had with Deutsch and his thought, and explains how that thought formed part of the underpinning of my thinking about law and, specifically, Critical Legal Studies.
Mark V. Tushnet, Three Essays on Proportionality Doctrine (Harvard Pub. Law Working Paper No. 16-43, Aug. 4, 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
The following three essays deal with diverse aspects of the doctrine of proportionality. The first argues that rationality review in U.S. constitutional law, which deals with challenges to legislation on the ground that the legislation violates a general right to liberty rather than any specific enumerated right, could be improved by expressly incorporating several features of proportionality doctrine. The second addresses the often made claim that proportionality analysis leads to “rights inflation,” and offers a doctrinal account and a politico-cultural account of that phenomenon. The third, to appear in a collection co-edited by Vicki C. Jackson and Mark Tushnet, tentatively titled New Frontiers in Proportionality Analysis (Cambridge University Press, 2017), argues that some cases treated as “easy’ under proportionality doctrine, are actually more difficult, and that recognizing their difficulty supports, to some degree, the adoption of the kind of categorical analysis that proportionality doctrine is thought to reject.
Mark Tushnet, Notes on Some Aspects of the Taxonomy of ‘Generations’ of Rights (Harvard Pub. Law Working Paper No. 16-46, July 8, 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This brief Essay examines the relationship between so-called first, second, and third generation rights. It is often thought that second and third generation rights supplement and deepen the commitments to human flourishing that underlie first generation rights. The Essay argues that the generations of rights have rather different conceptual underpinnings and that there may be serious conflicts among particular realizations of first, second, and third generation rights. An optimization strategy of the sort suggested by Robert Alexy, suitably adapted, might provide some ad hoc solutions, but it may be that the generations of rights ultimately are irreconcilable (in the large, though of course not in many particular instances).
Mark Tushnet, The Indian Constitution Seen from Outside, in The Oxford Handbook of the Indian Constitution 1019 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta eds., 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Foreign Law
Type: Book
Abstract
This chapter considers some aspects of the Indian Constitution and its judicial interpretation, as seen from abroad. To this end, it discusses a number of topics that compare India’s constitutional experience with those of other countries, beginning with unconstitutional constitutional amendments and the ‘Basic Structure’ doctrine. It then explores public interest litigation, affirmative action and reservations, and finally the mechanisms by which judicial independence has been secured in India. It also comments on the contentious relationship between constitutional courts and political elites in other institutions. The chapter concludes by noting how constitutional developments, including the growth of constitutional doctrine, are intertwined with a nation’s overall political system, especially the party system in place.
Mark Tushnet, Book Review, 7 Jurisprudence 355 (2016)(reviewing Jean Thomas, Public Rights, Private Relations (2015)).
Categories:
Constitutional Law
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Public Law
,
Judges & Jurisprudence
Type: Article
Mark Tushnet, New Institutional Mechanisms for Making Constitutional Law, in Democratizing Constitutional Law 167 (Thomas Bustamante & Bernardo Gonçalves Fernandes eds., 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.
Mark Tushnet, Saying and Doing in Comparative Constitutional Studies -- Ran Hirschl, Comparative Matters: the Renaissance of Comparative Constitutional Law (2014), 64 Am. J. Comp. L. 201 (2016) (book review).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Comparative Law
Type: Article
Mark Tushnet, Religion and the Roberts Court: The Limits of Religious Pluralism in Constitutional Law, in The Rise of Corporate Religious Liberty ch. 23 (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., 2016).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Religion
,
Supreme Court of the United States
Type: Book
Abstract
What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this "corporate" turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of "freedom of the church," the rights of for-profit corporations, and the implications of the Supreme Court's landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom. -- Back cover.
Mark Tushnet, Tocqueville’s Nightmare:  Institutional and Intellectual, 129 Harv. L. Rev. 122 (2016) (response to Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718 (2016)).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Mark Tushnet, Politics as Rational Deliberation or Theater:  A Response to ‘Institutional Flip-Flops’, 94 Tex. L. Rev. See Also 82 (2016).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Mark Tushnet, Book Review, 13 Persp. on Pol. 1209 (2015) (reviewing New Constitutionalism and World Order (Stephen Gill & Claire Cutler eds., 2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Antoni Abat i Ninet & Mark Tushnet, The Arab Spring: an Essay on Revolution and Constitutionalism (Edward Elgar Publ'g 2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Islamic Law
,
Comparative Law
Type: Book
Abstract
Approaching the concept of Islamic constitutionalism from a comparative perspective, this thought-provoking study by Antoni Abat i Ninet and Mark Tushnet uses traditional Western political theory as a lens to develop a framework for analyzing the events known as the 'Arab Spring'. Writing with clarity and insight, the authors place Western and Arabic traditions into a constructive dialogue. They focus on whether we can develop a 'theory of revolutions' that helps us understand events occurring at divergent times at geographically separate locations. This question is meticulously analyzed through the detailed examination of specific developments relevant to the ideas of revolution and constitutionalism in several nations affected by the Arab Spring. Case studies focus on Morocco and Libya as examples of unsuccessful revolutions, as well as Tunisia and Egypt. These lead the authors to consider the nature of constitutionalism itself and the concept of illiberal but non-authoritarian constitutions: a particularly pressing concern given the prominent contemporary discussions of the role of shari'a in post-Arab Spring constitutions. The Arab Spring will offer new insights to scholars, researchers and students of law and the political sciences, in particular those focusing on theories of revolution, democracy, constitutional law, Islamic constitutionalism and legal theory.
Unstable Constitutionalism: Law and Politics in South Asia (Mark Tushnet & Madhav Khosla eds., Cambridge Univ. Press 2015).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
Foreign Law
Type: Book
Abstract
Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world's largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attention by providing a detailed examination of constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh. Identifying a common theme of volatile change, it develops the concept of 'unstable constitutionalism', studying the sources of instability alongside reactions and responses to it. By highlighting unique theoretical and practical questions in an underrepresented region, Unstable Constitutionalism constitutes an important step toward truly global constitutional scholarship.
Oxford Handbook of the U.S. Constitution (Mark Tushnet, Mark A. Graber & Sanford Levinson eds., Oxford Univ. Press 2015).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
First Amendment
,
Religion
,
Second Amendment
,
Fourth Amendment
,
Fifth Amendment
,
Eighth Amendment
,
Eleventh Amendment
,
Third Amendment
,
Fourteenth Amendment
,
Other Amendments
,
Supreme Court of the United States
,
Federalism
,
Separation of Powers
Type: Book
Abstract
The Oxford Handbook of the U.S. Constitution offers a comprehensive overview and introduction to the U.S. Constitution from the perspectives of history, political science, law, rights, and constitutional themes, while focusing on its development, structures, rights, and role in the U.S. political system and culture. This Handbook enables readers within and beyond the U.S. to develop a critical comprehension of the literature on the Constitution, along with accessible and up-to-date analysis. The historical essays included in this Handbook cover the Constitution from 1620 right through the Reagan Revolution to the present. Essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics, and an entrenched bureaucracy. The essays on law explore how contemporary citizens appear to expect and accept the exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics. Essays on rights discuss how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality from a Constitution originally designed for a society in which all politically relevant persons shared the same race, gender, religion, and ethnicity. Lastly, the essays on themes explain how in a "globalized" world, people living in the United States can continue to be governed by a constitution originally meant for a society geographically separated from the rest of the "civilized world." Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism today
Abstract
This essay argues that invoking the concept of the “constituent power” clarifies some persistent puzzles about the constitutional and legal status of purportedly unconstitutional constitutional amendments. It argues that in some circumstances such amendments should be understood as exercises of the constituent power, effecting revolutionary transformations in a nation’s constitutional identity but—sometimes—through the forms of legality. The essay distinguishes between a purely conceptual version of the constituent power and a more sociological or real-world version, and argues that the former is superior to the latter.
Mark Tushnet, Book Review, 77 Historian 335 (2015) (reviewing Max Holland, Leak: Why Mark Felt Became Deep Throat (2012)).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Corruption
Type: Article
Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Univ. Press of Kan. 2015)(1988).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
"The first paperback edition of a classic of American constitutional theory. The book is divided into two parts. In Part I Professor Tushnet appraises the five major competing "grand theories" of constitutional law and interpretation, and, argues that none of them satisfy their own requirements for coherence and judicial constraint. In Part II the author offers a descriptive sociology of constitutional doctrine and raises critical questions as to whether a grand theory is necessary, is it possible to construct a coherent, useful grand theory, and is construction of an uncontroversial grand theory possible? Professor Tushnet's new Afterword is organized in parallel fashion to the original text. Part I offers a new survey of the contemporary terrain of constitutional interpretation. Part II provides an extended discussion of the most prominent of contemporary efforts to provide an external analysis of constitutional law, the idea of regime politics. This includes discussion of major court decisions, including Bush v. Gore and Citizens United"-- Provided by publisher.
Mark V. Tushnet, New Institutional Mechanisms for Making Constitutional Law (Harvard Pub. Law Working Paper No. 15-08, Apr. 4, 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.
Mark V. Tushnet, Civil Rights Policy (Harvard Pub. Law Working Paper No. 15-10, Apr. 4, 2015).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Legal History
Type: Article
Abstract
This essay offers an overview of US civil rights policy from the nineteenth century to the present. The expansion of the range of substantive interests covered by the term “civil rights” has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, “civil rights” began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. After examining the history of the idea and its implementation, the essay concludes with a discussion of contemporary controversies over disparate impact versus disparate treatment, affirmative action, and accommodation mandates.
Mark V. Tushnet, Constitutional Law: Critical and Comparative (Harvard Pub. Law Working Paper No. 15-09, Apr. 4, 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This brief essay serves as an introduction to a volume of studies by Latin American scholars of constitutional law and theory responding to themes in my work. It outlines the jurisprudential and historical-political background against which my work developed, stressing the important roles played by American Legal Realism and the politics of the 1960s in shaping my thinking. The essay explains how my interest in populist constitutional law and dialogic forms of constitutional review emerged from the same background, but was strengthened by an interest in comparative constitutional law that I developed in the 1990s.
Mark Tushnet, Internet Exceptionalism:  An Overview From General Constitutional Law, 56 Wm. & Mary L. Rev. 1637 (2015).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Networked Society
Type: Article
Mark Tushnet, The Presidential Empire, 62 Dissent 101 (2015).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
National Security Law
Type: Article
Abstract
The author discusses the special kind of presidential power called imperial presidency termed by American historian Arthur Schlesinger that led U.S. into war on the president's terms. He states that the position of the imperial presidency in international affairs will be secure as long as U.S. foreign policymakers preserves the nation's harmonic role in the world and its position can be dangerous as the world is in stake of war. He also mentions Stephen Griffin's authored book "Long Wars and the Constitution" that discusses the creation of the National Security State in the U.S. during the Cold War.
Mark V. Tushnet, Authoritarian Constitutionalism, 100 Cornell L. Rev. 391 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
East Asian Legal Studies
Type: Article
Abstract
Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively. The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished. I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair. The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.
Mark Tushnet, "Accommodation of Religion" Thirty Years On, 38 Harv. J.L. & Gender 1 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
Type: Article
Mark Tushnet, Duncan Kennedy As, Yes, Mentor, 10 Unbound:  Harv. J. Legal Left 75 (2015).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Mark Tushnet, Observations on the Politics of “Best Practices” in Constitutional Advice Giving, 50 Wake Forest L. Rev. 843 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
Type: Article
Mark V. Tushnet, Book Review, 76 Historian 892 (2014) (reviewing Constitutional Cultures: On the Concept and Representation of Constitutions in the Atlantic World (Silke Hensel, Ulrike Bock, Katrin Dircksen & Hans-Ulrich Thamer eds., 2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This volume is the product of a collaborative project by multiple authors, most of whom are affiliated with academic institutions in Germany. The book's chapters examine the culture of constitutionalism in France, Germany, the United States, and Mexico, with some glances at other nations in Latin America, in the late eighteenth and early nineteenth centuries, again with some glances at later periods.
Mark Tushnet, Justice Breyer and the Partial De-Doctrinalization of Free Speech Law, 128 Harv. L. Rev. 508 (2014).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
First Amendment
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Mark Tushnet, Book Review, 76 Historian 606 (2014)(reviewing Dean A. Strang, Worse Than the Devil: Anarchists, Clarence Darrow & Justice in a Time of Terror (2013)).
Categories:
Legal Profession
,
Criminal Law & Procedure
Sub-Categories:
Criminal Defense
,
Jury Trials
,
Legal History
,
Legal Ethics
Type: Article
Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (Found. Press 3d ed. 2014).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Book
Mark Tushnet, Liberals, Litigants, and the Disappearance of Consensus About The Religion Clauses, 93 Tex. L. Rev. 207 (2014)(reviewing Steven D. Smith, The Rise and Decline of American Religious Freedom (2014)).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
Type: Article
Mark Tushnet, New York Times v. Sullivan Around the World, 66 Ala. L. Rev. 337 (2014).
Categories:
Constitutional Law
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
First Amendment
,
Comparative Law
,
Communications Law
Type: Article
Mark Tushnet, The Affordable Care Act and American Constitutional Development, 62 Drake L. Rev. 1079 (2014).
Categories:
Constitutional Law
,
Health Care
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Health Law & Policy
Type: Article
Howard P. Fink, Thomas D. Rowe, Jr. & Mark V. Tushnet, Federal Courts in the 21st Century: Cases and Materials (LexisNexis 4th ed. 2013).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Supreme Court of the United States
Type: Book
Mark Tushnet, Administrative Law in the 1930s: The Supreme Court's Accommodation of Progressive Legal Theory, 60 Duke L.J. 1565 (2011).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Abstract
In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed that they had suffered loss after loss. And, counting only outcomes, they had. Yet by the end of the decade, the Court had moved administrative law closer to the position the Progressives had sought. This Lecture examines developments in administrative law in the 1930s. Focusing on three major cases during that decade, this Lecture describes how far administrative law adapted to the vision articulated by Progressive scholars, most notably Felix Frankfurter and James Landis. In each case, Progressives believed that the Court had substantially eroded the accomplishments of administrative law; but in each, Progressives were mistaken. And whereas the Progressives failed to acknowledge how much they had gained from the Supreme Court during the 1930s, by the end of that decade, their opponents better understood what had occurred and mobilized political support to retrench. Only a presidential veto stood in the way of a substantial revision of administrative law. That veto, though, allowed modern administrative law to adapt to the changing place of administrative agencies in the modern administrative state.
Mark Tushnet, The Rise of the Weak-Form Judicial Review, in Comparative Constitutional Law 321 (Tom Ginsburg & Rosalind Dixon eds., Edward Elgar 2011).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Courts
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Comparative Law
Type: Book
Mark Tushnet, Abolishing Judicial Review, 27 Const. Comment. 581 (2011).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Article
Mark Tushnet, Entrenching Good Government Reforms, 34 Harv. J.L. & Pub. Pol'y 873 (2011).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
,
Elections & Voting
Type: Article
Mark Tushnet, Progressive Constitutionalism: What Is "It"?, 72 Ohio St. L.J. 1073 (2011).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
Mark Tushnet, Response: "Two Paths, One Result": A (Heavily Qualified) Defense of Consensus Constitutionalism, 89 Tex. L. Rev. 157 (2011).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
Abstract
Professor Tushnet responds to Professor Driver's skepticism toward consensus constitutionalism, or the view that the Supreme Court "inscribes into constitutional law the views of an undifferentiated American people." Tushnet argues that consensus constitutionalism is more defensible than Professor Driver's argument allows, based on a "more generous" reading of their texts. Tushnet reads the consensus constitutionalists as arguing that the Court's decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored. Driver, however, argues that no consensus has ever existed. In response, Tushnet sketches the "same results claim," by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or (2) the Legislative and Executive Branches, produce the result. Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists. Tushnet also responds to Driver's view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates. He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous. As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues. In any event, political leaders and judges are not required to find or occupy this normative field before making a decision. Tushnet concludes by noting Driver's limited reading of consensus constitutionalism and agreeing with Driver's criticism of the overstatement of consensus in constitutional debates and Driver's argument that any consensus does not foreclose normative arguments in court.
Mark Tushnet, Some Current Controversies in Critical Legal Studies, 12 German L.J. 290 (2011).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Legal Scholarship
,
Legal & Political Theory
Type: Article
Mark Tushnet, Theory and Practice in Statutory Interpretation, 43 Tex. Tech L. Rev. 1185 (2011).
Categories:
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Mark Tushnet, “I Couldn’t See It Until I Believed It”: Some Notes on Motivated Reasoning in Constitutional Adjudication, 125 Harv. L. Rev. F. 1 (2011).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Supreme Court of the United States
Type: Article
Abstract
Response to Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1 (2011).
Mark Tushnet, Incentives and the Supreme Court, 78 Geo. Wash. L. Rev. 1300 (2010).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Article
Mark Tushnet, How Do Constitutions Constitute Constitutional Identity?, 8 Int'l J. Const. L. 671 (2010).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
Commenting on Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (2010).
Mark Tushnet, How Different are Waldron's and Fallon's Core Cases For and Against Judicial Review?, 30 Oxford J. Legal Stud. 49 (2010).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Congress & Legislation
,
Courts
,
Politics & Political Theory
Type: Article
Abstract
Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner.
Mark Tushnet, Harry Kalven and Kenneth Karst in the Supreme Court Review: Reflections after Fifty Years, 2010 Sup. Ct. Rev. 35.
Categories:
Government & Politics
,
Constitutional Law
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Biography & Tribute
,
Legal Scholarship
Type: Article
Abstract
This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitutional law, the articles are entirely doctrinal – and not the worse for that. The articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago. The Essay concludes by speculating that the rise of “constitutional theory” explains the disappearance of the sensibility Kalven and Karst exhibited. That rise may have conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects. The ideas that the constitutional questions the Supreme Court deals with are genuinely difficult and that the Justices, people of varying intellectual ability, can reasonably disagree over those questions are almost completely absent from today’s constitutional discourse – and those who try to advance those ideas are dismissed as naïve (fools) or as pursuing a concealed political agenda (knaves).
Mark Tushnet, How Courts Implement Social Policy, 45 Tulsa L. Rev. 855 (2010) (reviewing Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (2d ed. 2008) and Gordon Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics (2009)).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Social Change
,
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Legal Reform
Type: Article
Mark Tushnet, Legal Reasoning in Congress, 95 Iowa L. Rev. Bull.. 81 (2010).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
Type: Article
Abstract
Commenting on: Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Sentate, 95 Iowa L. Rev. 1401 (2010).
Mark Tushnet, Why the Constitution Matters (Yale Univ. Press 2010).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Book
Mark Tushnet, Symposium Introduction: Legislation and the Law of Politics, 46 Harv. J. on Legis. 211 (2009).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
,
Elections & Voting
Type: Article
Mark Tushnet, The Story of Crowell: Grounding the Administrative State, in Federal Court Stories 359 (Vicki C. Jackson & Judith Resnick eds., 2009).
Categories:
Government & Politics
,
Constitutional Law
,
Labor & Employment
Sub-Categories:
Fourteenth Amendment
,
Administrative Law & Agencies
,
Federalism
,
Supreme Court of the United States
,
Workers' Compensation
Type: Book
Abstract
This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution's text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goal that fit comfortably with the Constitution. The routes to the goal are workarounds. Finding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts - and do so without (obviously) distorting the tools we use. Constitutional workarounds raise important questions about the Constitution and constitutional theory. They can occur only if the Constitution is in some sense at war with itself: One part of the text prohibits something, but other parts of the text permit it, and the Constitution itself does not appear to give either part priority over the other. And, to the extent that workarounds occur when there is political pressure to accomplish a goal blocked by parts of the Constitution's text, workarounds place under severe pressure the idea that a constitution is a form of commitment to avoid improvident actions that we are inclined to take because of perhaps passing political considerations: The first bit of text expresses our commitment not to do something in response to immediate political pressures, but the workaround allows us to succumb to those pressures. The Essay offers a simple classification of workarounds - true, fraudulent, and contested - and then discusses the prerequisites for workarounds, which include general agreement that the constitutional texts obstructing action no longer make much sense and, perhaps related to the existence of such agreement, some substantial degree of bipartisan agreement that using the workaround is constitutionally appropriate. The Essay concludes with some thoughts about the implications of workarounds for constitutional theory.
Mark Tushnet, Permissible Gun Regulations After Heller: Speculations About Method and Outcomes, 57 UCLA L. Rev. 1425 (2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Second Amendment
,
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
This Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard of review or rational basis with bite, and will rarely find unconstitutional an existing regulation of guns, short of what in practice amounts to a complete ban. It speculates as well that the Supreme Court will allow most Second Amendment issues to percolate in the lower courts, and that the Court that takes up another Second Amendment issue may well have a different composition, one less sympathetic than the present Court to gun rights. It concludes that Heller’s fate may be similar to the fate of the Rehnquist Court’s so-called Federalism Revolution—an important decision with relatively little enduring impact.
Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. Pa. J. Const. L. 313 (2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Politics & Political Theory
Type: Article
Abstract
This Essay offers a brief and highly speculative political, intellectual, and legal history of the theory of the unitary executive in the late twentieth century. I suggest that that theory developed in three stages, which I label the weak, the strong, and the super-strong versions, and confronted one alternative that superficially resembled the theory of the unitary executive but that actually served quite different political, intellectual, and legal purposes. Further, I suggest that the second stage followed the first and the third the second: The weak version was articulated on the arrival of the Reagan administration in 1981, the strong version during the late Reagan and Bush I administrations, and the super-strong version during the Bush II administration. And, finally, as those temporal linkages suggest, I will argue that each version of the theory and its alternative fit into the political agendas of these four administrations and were thought to be solutions to specific problems each administration faced.
Mark Tushnet, Is Congress Capable of Conscientious, Responsible Constitutional Interpretation? Some Notes on Congressional Capacity to Interpret the Constitution, 89 B.U. L. Rev. 499 (2009).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Article
Mark Tushnet, Citizen as Lawyer, Lawyer as Citizen, 50 Wm. & Mary L. Rev. 1379 (2009).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
,
Legal & Political Theory
Type: Article
Mark Tushnet, Constitution of the United States: Interpretation of the Constitution, in The Oxford International Encyclopedia of Legal History 160 (Stanley N. Katz ed., Oxford Univ. Press 2009).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Politics & Political Theory
,
Supreme Court of the United States
,
Executive Office
Type: Book
Mark Tushnet, Heller and the Perils of Compromise, 13 Lewis & Clark L. Rev. 419 (2009).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Second Amendment
Type: Article
Mark Tushnet, State v. Mann: Why Ruffin?, 87 N.C. L. Rev. 967 (2009).
Categories:
Legal Profession
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Judges & Jurisprudence
,
Legal History
Type: Article
Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis (Hart Publ'g 2009).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Mark Tushnet, The Inevitable Globalization of Constitutional Law, 49 Va. J. Int'l L. 985 (2009).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Global Lawyering
Type: Article
Mark Tushnet, The Meritocratic Egalitarianism of Thurgood Marshall, 52 How. L.J. 691 (2009).
Categories:
Legal Profession
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Discrimination
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Abstract
This Essay, forthcoming in the Howard Law Journal, describes Thurgood Marshall's meritocratic egalitarianism. Marshall was sensitive to the wide range of talents people actually had and was skeptical about claims that talents in any field were distributed in a steep pyramid, with many less talented at the base and only a few highly talented at the top. For him, there was a meritocratic pyramid, but it was flat rather than steep. All but the very best at most things were only slightly better and only somewhat less numerous than those who had ordinary ability in the field. Marshall was also extremely sensitive to the range of bad reasons people gave for perpetuating hierarchies ordered by ascriptive characteristics - race most obviously, but also gender, class, and disability. A real meritocracy required the elimination of all those bad reasons so that careers, broadly defined, really would be open to talent. Governments could not use ascriptive characteristics to perpetuate hierarchies that interfered with the prospect of a person pursuing a career suitable to his or her talents. And, conversely, policies aimed at eliminating the use of ascriptive characteristics to perpetuate such hierarchies - what has come to be known as affirmative action - were entirely proper. Taken as a whole, Marshall's meritocratic egalitarianism was strongly critical both of the distribution of social benefits and harms in the United States, which did not conform to meritocratic principles, and of the widespread ideas about meritocracy, which placed too much weight on differences that a real meritocrat would regard as minor. The Essay examines several of Justice Marshall's separate opinions - dissents and concurrences - to tease out of them indications of Marshall's meritocratic egalitarianism.
Mark Tushnet, What Consequences Do Ideas Have?, 87 Tex. L. Rev. 447 (2008)(reviewing Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
,
Legal Theory & Philosophy
Type: Article
Abstract
Steven Teles's book, The Rise of the Conservative Legal Movement, is a case study of ideological challenge. Teles, a political scientist, emphasizes the institutional dimensions of such challenges. Relying on interviews and internal documents produced by conservative organizations, he examines the development of conservative litigating groups (i.e., conservative public interest law firms), the growth of the Federalist Society, and the embedding of law and economics within the legal academy. There have been similar studies of liberal public interest law firms and of the rise of liberal legalism in the academy, but Teles's is the first to look on the other side of the ideological divide. And, given the dominance of liberal legal ideology, his analysis brings out in sharp relief many new insights into the institutions that affect the outcomes of ideological contests. In addition, Teles connects his analysis to a broader theme in recent studies of American political development. The rise of the conservative legal movement was intimately connected to changes in the dominant political order that have occurred over the past thirty years: the decay of the New Deal-Great Society political order, and the Reagan Revolution and its limits. In these ways Teles provides a firm foundation for thinking (or perhaps merely speculating) about future developments in the institutional apparatuses associated with conservative and liberal legal thought. This Review summarizes and critiques Teles's analysis of the three components of the conservative legal movement, beginning with the least important, law and economics in the legal academy, and then turning to conservative public interest law firms and the Federalist Society. It concludes with some speculations about the future of that movement, in light of the connection Teles rightly draws between that movement and the American political regime of the late twentieth century.
Global Perspectives on Constitutional Law (Vikram D. Amar & Mark Tushnet eds., Oxford Univ. Press 2008).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
An ideal supplement for professors who wish to incorporate comparative law into their constitutional law courses, Global Perspectives on Constitutional Law introduces students to the various ways that nations other than the United States resolve contemporary constitutional questions. Covering both structural issues and individual rights, the book offers a wide but select range of readings on interesting constitutional issues in sixteen accessible chapters. Each brief chapter presents foreign case materials on a particular constitutional topic along with notes and questions that further illuminate the comparisons between U.S. constitutional law and that of other nations. Featuring selections by expert contributors from a variety of ideological and demographic backgrounds, the volume is designed to encourage students to reexamine and deepen their understanding of U.S. constitutional law in light of the alternatives offered by other systems.
Mark Tushnet, Constitutionalism, in Encyclopedia of the Supreme Court of the United States v. 1, at 412 (David S. Tanenhaus ed., 2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Book
Mark Tushnet, Judicial Review, in Encyclopedia of the Supreme Court of the United States v. 2, at 60 (David S. Tanenhaus ed., 2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Supreme Court of the United States
Type: Book
Mark Tushnet, Marshall,Thurgood, in Encyclopedia of the Supreme Court of the United States v. 3, at 240 (David S. Tanenhaus ed., 2008).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Book
Mark Tushnet, Rehnquist Court, in Encyclopedia of the Supreme Court of the United States v. 4, at 210 (David S. Tanenhaus ed., 2008).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Book
Mark Tushnet, World War II and the Growth of Civil Rights, in Encyclopedia of the Supreme Court of the United States v. 5, at 257 (David S. Tanenhaus ed., 2008).
Categories:
Discrimination & Civil Rights
,
Legal Profession
,
Government & Politics
Sub-Categories:
Civil Rights
,
Military, War, & Peace
,
Legal History
Type: Book
Mark Tushnet, Risk Regulation and Administrative Constitutionalism, 14 Eur. L.J. 680 (2008)(book review).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
European Law
Type: Article
Mark Tushnet, Legislative and Executive Stare Decisis, 83 Notre Dame L. Rev. 1339 (2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Judges & Jurisprudence
Type: Article
Mark Tushnet, The Rights Revolution in the Twentieth Century, in The Cambridge History of Law in America, v. 3, at 377 (Michael Grossberg & Christopher Tomlins eds., 2008).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Disability Rights
,
Gender & Sexuality
,
Race & Ethnicity
,
Social Welfare Law
,
Discrimination
,
Politics & Political Theory
,
Congress & Legislation
,
Courts
Type: Book
Abstract
For most of U.S. history, Americans sought to vindicate their rights through legislative action. The rights revolution of the twentieth century expanded the number and nature of the claims that could be presented as claims about rights and added the courts to legislatures as important venues for appeals to rights. This chapter takes up the institutions of the rights revolution first, because those institutions were the preconditions for creating and, perhaps more important, for sustaining a rights revolution concerned with substance. But, of course, those institutions were inserted into a political and intellectual universe with its own features. The chapter also addresses a tension that became more apparent as the rights revolution advanced, the tension between individualist and collectivist understandings of rights. At the turn of the twentieth century constitutional rights were primarily property rights. Social welfare rights or entitlements, as they came to be called in the late twentieth century had a significant place in the rights revolution.
Mark Tushnet, Interpreting the Right to Bear Arms -- Gun Regulation and Constitutional Law, 358 New Eng. J. Med. 1424 (2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Second Amendment
,
State & Local Government
Type: Article
I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases (Mark Tushnet ed., Beacon Books 2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Book
Mark Tushnet, Dialogic Judicial Review, 61 Ark. L. Rev. 205 (2008).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
Type: Article
Mark Tushnet, Heller and the New Originalism, 69 Ohio St. L.J. 609 (2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Second Amendment
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Mark Tushnet, Some Skepticism About Normative Constitutional Advice, 49 Wm. & Mary L. Rev. 1473 (2008).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Mark Tushnet, The Future of the Second Amendment, 1 Alb. Gov't L. Rev. 354 (2008).
Categories:
Constitutional Law
Sub-Categories:
Second Amendment
Type: Article
Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton Univ. Press 2008).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Courts
,
Judges & Jurisprudence
,
Comparative Law
Type: Book
Mark Tushnet, The United States of America, in Judicial Activism in Common Law Supreme Courts 415 (Brice Dickson ed., 2007).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Book
Abstract
This chapter examines judicial activism in the US Supreme Court. For discussions of judicial activism to be analytically illuminating, a reasonably uncontroversial baseline is needed against which activism can be measured. Two candidates for the baseline are considered, each of which holds out some promise of producing some analytic purchase. The avoidance canon measures activism with reference to substantive constitutional law whatever it happens to be; and community expectations measures it with reference to those expectations, again whatever they might be. It is argued that the use of constitutional interpretation as the baseline is more promising than the use of community expectations, but neither is entirely satisfactory.
Mark Tushnet, The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation, 3 Int'l J.L. Context 275 (2007).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
Military, War, & Peace
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
,
Comparative Law
Type: Article
Abstract
Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effective than legal controls, even in systems committed to parliamentary supremacy. Political controls can sometimes be deployed effectively more quickly than legal ones can. Even in settings seemingly quite unfavourable to the development of constraints on the flow of power to executive government during emergencies, political controls can work, and sometimes might work in real time more effectively than judicial controls do in real time.
Mark Tushnet, Out of Range: Why the Constitution Can't End the Battle over Guns (Oxford Univ. Press 2007).
Categories:
Constitutional Law
Sub-Categories:
Second Amendment
Type: Book
Abstract
In this volume the author, a legal scholar offers a study of the debate over the Second Amendment that looks at the continuing battle over gun control, with an analysis of different elements of the Second Amendment and constitutional arguments over them. Few constitutional disputes maintain as powerful a grip on the public mind as the battle over the Second Amendment. The National Rifle Association and gun control groups struggle unceasingly over a piece of the political landscape that no candidate for the presidency, and few for Congress, can afford to ignore. But who is right? Will it ever be possible to settle the argument? The author brings to this book a deep expertise in the Constitution, the Supreme Court, and the role of the law in American life. He breaks down the different positions on the Second Amendment, showing that it is a mistake to stereotype them. He finds the constitutional arguments finely balanced, which is one reason the debate has raged for so long. Along the way, he examines various experiments in public policy, from both sides, and finds little clear evidence for the practical effectiveness of any approach to gun safety and prosecution. Of course, he notes, most advocates of the right to keep and bear arms agree that it should be subject to reasonable regulation. Ultimately, he argues, our view of the Second Amendment reflects our sense of ourselves as a people. The answer to the debate will not be found in any holy writ, but in our values and our vision of the nation. This examination offers a guide to both sides of the argument, pointing the way to solutions that could calm, if not settle, this bitter dispute.
Mark Tushnet, The Political Constitution of Emergency Powers: Some Lessons from Hamdan, 91 Minn. L. Rev. 1451 (2007).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Supreme Court of the United States
,
Military, War, & Peace
,
Separation of Powers
Type: Article
Bills of Rights (The International Library of Essays on Rights) (Mark Tushnet ed., Ashgate 2007).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Congress & Legislation
,
Comparative Law
Type: Book
Abstract
This collection examines the justifications for using bills of rights to protect fundamental human rights and the mechanisms for enforcing provisions in those documents. Articles deal with different forms of judicial enforcement and with legislative enforcement, of rights protected by such documents. The collection includes a road-map for evaluating the effectiveness of these alternative enforcement mechanisms.
Mark Tushnet, Symposium Foreword: The First (and Last?) Term of the Roberts Court, 42 Tulsa L. Rev. 495 (2007).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Mark Tushnet, The United States: Eclecticism in the Service of Pragmatism, in Interpreting Constitutions: A Comparative Study (Jeffrey Goldsworthy ed., 2006).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Executive Office
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Book
Abstract
The traditions of constitutional interpretation in the United States make it possible, and indeed relatively easy, to use interpretation as the vehicle for constitutional adaptation. The distinction between interpretation and alteration is accordingly quite thin. The interpretive traditions are decidedly eclectic. Interpretation relies on the words of the text as understood when they were made part of the constitution, general propositions about how institutional arrangements promote constitutionalism, ideas about the values of democracy and individual autonomy, and much more. This chapter looks at the U.S. constitution, its origins and structure, formation, and basis, as well as the legislature and the executive, the Supreme Court, constitutional amendment, problems and methods of constitutional interpretation, early examples of constitutional interpretation, considerations of administrability, (moderately) disfavoured interpretive methods, presumptive interpretation, preferred interpretive techniques, and eclecticism in practice.
Francisco Forrest Martin, Stephen J. Schnably, Richard Wilson, Jonathan Simon & Mark Tushnet, International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis (Cambridge Univ. Press 2006).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Humanitarian Law
Type: Book