Mark Tushnet

William Nelson Cromwell Professor of Law

Areeda 223

617-496-4451

Assistant: Benjamin Sears / 617-495-9534

Biography

Professor Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies examining (skeptically) the practice of judicial review in the United States and around the world. He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and (currently) a long-term project on the history of the Supreme Court in the 1930s.

Areas of Interest

Mark V. Tushnet, Alan K. Chen, & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (N.Y.U. 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, "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 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
Antoni Abat i Ninet & Mark Tushnet, The Arab Spring: an Essay on Revolution and Constitutionalism (Elgar 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.
Mark Tushnet & Madhav Khosla, Unstable Constitutionalism: Law and Politics in South Asia (Camb. 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.
Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis (Hart Publ. 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. Worthy of the highest recommendation for public and college library judicial studies shelves."
Oxford Handbook of the U.S. Constitution (Mark Tushnet, Mark A. Graber & Sanford Levinson eds., Oxford Univ. Press 2015).
Categories:
Constitutional Law
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
Mark Tushnet, Peasants with Pitchforks, and Toilers with Twitter, 13 Int'l. J. Const. L. 639 (2015).
Categories:
Constitutional Law
Type: Article
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, 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 Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Univ. Press of Kan. 2015).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
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?
Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (3d ed. 2014).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Book
Mark Tushnet, The New Constitutional Order (Princeton Univ. Press 2009).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Book
Abstract
In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened. Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems. Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order. This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists.
Laurence H. Tribe, Jeremy Waldron & Mark Tushnet, On Judicial Review - Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate 52 Dissent 81 (2005).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
Type: Article
Abstract
The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.
The Oxford Handbook of Legal Studies (Mark Tushnet & Peter Cane eds., Oxford 2003).
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Book
Abstract
This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.
Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist Court, 78 Ind. L.J. 47 (2003).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Supreme Court of the United States
Type: Article
Abstract
I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under which either the political branches or the Supreme Court could pursue that transformation, and suggesting that those conditions are not highly likely to be realized. Part IV is a brief conclusion, examining the implications of my argument for advocacy and scholarship.
Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273 (2003).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Military, War, & Peace
Type: Article
Abstract
This Essay explores some general characteristics of the U.S. response to questions of civil liberties in wartime. After addressing some general challenges to the proposition that during war, law is silent, the Essay sketches the historical pattern, in which wartime actions become regarded as civil liberties violations after the emergency has passed. It argues that this pattern can be explained by a combination of difficulties of decision-making in conditions of uncertainty, with systematic and predictable errors in judgment. The Essay describes a process of social learning, in which the lessons of the past have produced incrementally smaller civil liberties violations over time. It concludes with an analysis of the constitutional status of emergency powers, analyzing the Habeas Corpus Clause and suggesting that attempting to control exercises of emergency power through constitutional provisions is misguided, and that treating such powers as extra-constitutional would contribute more to the process of social learning.
Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights - and Democracy-Based Worries, 38 Wake Forest L. Rev. 813 (2003).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
Type: Article
Defining the Field of Comparatative Constitutional Law (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
,
Global Lawyering
Type: Book
Abstract
Jackson, Tushnet, and their contributors, distinguished jurists and legal scholars from around the world, seek to define the field of constitutional law, sometimes expressly but more often by illustrating the way in which each writer thinks about comparative constitutional law. Viewed as a whole, the collection points to common constitutional themes even though how nations responded to these issues differed substantially based on different histories, traditions, and experiences. Three common themes emerge from the essays. First discussed are the relationships of constitutionalism and constitutional law to popular understandings and political contexts and their relationship to constitutional understandings and transformations. A second set of concerns revolve around dilemmas of equality. Third, explicit or implicit in virtually all of the essays is the theme that globalization as a phenomenon requires comparative constitutional study. Here is a thoughtful and stimulating collection that will be of value to legal scholars, students, and others involved with constitutional law issues.

Current Courses

Course Catalog View

Areeda 223

617-496-4451

Assistant: Benjamin Sears / 617-495-9534