Faculty Bibliography
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The first of these companion essays, Heller and the New Originalism, forthcoming in the Ohio State Law Journal, argues that the new originalism, as exemplified in Heller, does not avoid the general kinds of difficulties associated with the old originalism, at least to the extent that the new originalism is defended as providing, in Justice Scalia's terms, a solid, rock-hard Constitution. It describes several difficulties with the new originalism as displayed in Heller, including the assumption that meanings are stable over long periods of time, the possibility that meanings of constitutional terms are contested at the time the terms are inserted into the Constitution, and the difficulty that meanings are necessarily indexed to the conditions under which words are used. The second essay, Heller and the Perils of Compromise, forthcoming in the Lewis & Clark Law Review, describes the ways in which the absolutist rhetoric about the appropriate method of constitutional interpretation that predominates in Justice Scalia's majority opinion in Heller is in tension with the asserted presumptive constitutionality of numerous gun regulations, and argues that interest-balancing of the sort Justice Scalia criticizes is inevitable in constitutional interpretation, even within Justice Scalia's assertedly non-balancing approach. It speculates that the compromises embedded in Heller make it likely that the decision will unravel, leading either to quite robust restrictions on gun regulation or, more likely, a quite weak Second Amendment. I suggest that the Heller decision may be for the Second Amendment what early decisions were for the so-called Federalism and Takings Revolutions: decisions that promised real change in prevailing constitutional doctrine, but that failed to deliver on the promise.
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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.
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Mark Tushnet, Dialogic Judicial Review, 61 Ark. L. Rev. 205 (2008).
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Mark Tushnet, The Future of the Second Amendment, 1 Alb. Gov't L. Rev. 354 (2008).
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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.
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David Currie's four volumes about constitutional interpretation in Congress from 1789 to the Civil War provide historians, political scientists, and legal scholars with important insights into American political development. The books shed light on the gradual erosion of Congress' capacity to interpret the Constitution and offer a solid basis for provocative speculation about the strength of the normative case for judicial review.
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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.
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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.
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Rebecca Scott is a historian, not an economist. Describing how a dispute over a mule's ownership was resolved, Professor Scott reproduces a receipt two claimants left when they took the mule from the plantation whose manager claimed it as well (p. 185). By contrast, analyzing property relations in the pre-Civil War American South, economic historian Jenny Wahl observes, "[E]conomic historians tend to [use] ... frequency tables, graphs, and charts." The differences in visual aids to understanding indicate the various ways historians and economists approach a single topic-the relation between markets and politics, the latter defined to include the deployment of collective force. Professor Scott's theme is the mutual dependence of markets and politics in post-emancipation Louisiana and Cuba. Professor Scott examines post-emancipation Louisiana and Cuba, which are similar in some respects and different in others. Sugar production was important in both locations, for example, but the politics of freedom differed: In Louisiana freedom resulted from the North's defeat of the South in a civil war, whereas in Cuba it resulted from an independence struggle by Cubans, including slaves, against colonial domination. Few economists would disagree with many of the propositions that they would extract from her narrative. Yet the tension between narrative and proposition is apparent. This Review explores some aspects of that tension. Part I describes in largely economic terms some aspects of the post-emancipation property arrangements that Professor Scott describes historically. Relying on Professor Scott's descriptions in Part II, I sketch why her insistence on the mutual dependence of markets and politics is correct, with some speculation about why a division of labor among economists leads many economics influenced legal scholars to underemphasize that dependence. It would be foolish to claim, and I do not, that only a historian could illuminate the mutual dependence of markets and politics. Rather, the historian's narratives and the economist's propositions shed light on that phenomenon from different angles.
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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.
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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.
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Mark Tushnet, William Rehnquist's Federalism, in The Rehnquist Legacy 187 (Craig Bradley ed., 2006).
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During the thirty-three years William Rehnquist has been on the Supreme Court, nineteen as Chief Justice, significant developments have defined the American legal landscape. This book is a legal biography of Chief Justice William Rehnquist of the United States Supreme Court and the legacy he created. It is an intensive examination of his thirty-three year legacy as a Supreme Court Justice based on his Court opinions, primarily in the area of constitutional law. It is written by a group of legal scholars each of whom is a specialist in the area covered by his/her chapter. The focus of the book is on Rehnquist's own legacy, not necessarily that of the Court which he headed. Thus emphasis is placed not only on the goals which he achieved, but on those that he failed to achieve.
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Marbury v. Madison, decided in 1803, is the foundation stone of the American doctrine of judicial review. Remarkably, the case was decided without the parties having presented an oral argument to the Supreme Court. This book begins with a unique transcript of an oral argument in the case, conducted before a bench of four distinguished federal judges. The transcript is followed by essays on Marburys intellectual background, its significance in U.S. constitutional history, and the way in which we might think of constitutional theory and judicial review in terms sensitive to the historical and political contexts in which the practice persists. Distinguished commentators question some of the claims made in the essays, and offer their own perspectives on Marburys importance.
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This book looks at the War on Terrorism and the campaigns in Afghanistan and Iraq through the lenses of constitutional law and American politics.
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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.
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"The dramas of the Court - both intellectual and personal - have turned on and determined the most important cases of our time: gay rights, abortion, affirmative action, crime, hate speech, advertising, and big business. They have resulted in the undoing of legislation that characterized the New Deal and had seemed unassailable for a half-century. Here, Mark Tushnet both provides a clear and accessible history of the nation's last half-century under the rule of law and shows why the next half-century and more depends on the next Court appointments." --Jacket.
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"In What Roe v. Wade Should Have Said, eleven distinguished constitutional scholars rewrite the opinions in this controversial case in light of thirty years' experience but making use only of sources available at the time of the original decision. Taking positions both for and against the constitutional right to abortion, the contributors offer novel and illuminating arguments that get to the heart of this case. In addition, Jack M. Balkin gives a detailed introduction to Roe v. Wade, chronicling the history of the Roe litigation, the constitutional and political clashes that followed, and the state of abortion rights in the United States today."--BOOK JACKET.
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With its ability to review and interpret all American law, the Supreme Court of the United States is arguably the most influential branch of government. Yet, institutionally, it is the least powerful. Its authority relies entirely on the willing consent of the executive and legislative branches of the U.S. government and of the American people to accept it as law's ultimate arbiter. Perhaps for this very reason the Court has taken great care to shield itself from the public gaze. Offering a sweeping history of this remote and austere institution, The United States Supreme Court pulls back the curtain of mystery to make the Court accessible to all readers. Eighteen essays, written by the nation's top legal historians -- among them Mark Tushnet, Scot Powe, Paul Finkelman, and Katherine Fischer Taylor -- provide incisive interpretation of the Court's activities over the past two centuries, from its first meetings in borrowed space in the U.S. Capitol to the ornate "Marble Palace" of the present day. The United States Supreme Courtshowcases the Court's legal triumphs and disasters, its internal workings, and its impact on American politics, society, and culture. The book also brings to light the uneasy influence of popular culture and electoral politics on the Court. Organized chronologically by the terms of each chief justice, here are fresh insights into the Court's key moments and cases, from the Dred Scot decision to Brown v. Board of Education, from the Lochner era to the Warren Court, from Roe v. Wade to Bush v. Gore. --Publisher.