Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
This Essay examines Clarence Thomas's opinions in education cases, extracting from them themes of black nationalism and strict individualism. These themes are in some tension with each other. I use a similar tension exhibited in two controversies over editorials W.E.B. Du Bois wrote for the NAACP magazine The Crisis as a way of exploring whether the tension can be reconciled. I argue that much of the tension can be resolved by treating black nationalism either as a choice made by African Americans as individuals or as a second-best strategy for strengthening the black community when its members lack effective choice in education. Some tension in Justice Thomas's opinions remains, however, and I suggest that the residual tension derives from Justice Thomas's personal experience in being regarded by dominant legal elites as unqualified for the position he holds.
-
Type:
Categories:
Sub-Categories:
This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible - though sometimes only barely so - by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order. I offer a number of illustrations from constitutional history and contemporary controversies. Although the Essay is largely descriptive, I conclude with some modest normative observations about whether constitutional hardball is healthy for a constitutional community and, for those who think it is not, how we can avoid the practice.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
The Supreme Court's references to non-U.S. law in deciding constitutional cases, new treaty institutions associated with NAFTA and the WTO, and recent advocacy urging that U.S. courts should make non-U.S. law a rule of decision more often than they have - all these have generated a new critical literature arguing that these developments threaten domestic sovereignty and self-governance. This Essay attempts to describe precisely what the objections are, distinguishing between discrete objections focusing on particular constitutional problems and sovereignty-based objections. I argue that the discrete objections are not terribly strong and that the sovereignty-based ones re-state familiar arguments about judicial activism. The context is new, but the nature of the arguments is not. I conclude by suggesting that the critical literature is a form of interest-group advocacy of precisely the same kind that the literature criticizes as undermining domestic sovereignty and self-governance - which suggests that neither form of advocacy is really troubling.
-
Type:
Categories:
Sub-Categories:
Slavery in the American South could not have existed without the authority of law defining slaves as the property of their masters. But the fact that slaves were also human beings placed limits on this harsh reality. When the rigor of the law and the complex bonds of sentiment linking master and slave came into conflict, masters looked to the courts. In one such case, State v. Mann, North Carolina Supreme Court justice Thomas Ruffin ruled that masters could not be prosecuted for assaulting their slaves. In articulating the legal basis for his decision, Justice Ruffin also revealed his own view of the "logic of slavery," in which he sanctioned the owner's rights even as he expressed his own horror at the mistreatment of the slave. Legal historian Mark Tushnet, one of the foremost living authorities on antebellum slave law, now shows how studying such a simple case can illuminate an entire society. For those who detested slavery, the case represented all that was intolerable about that institution; for those who defended it, it raised vexing and persistent issues that could not be wished away. As further testament to the importance of State v. Mann, Harriet Beecher Stowe even made it central to her second antislavery novel, Dred. Tushnet discusses the opinion's place in the novel in which she quoted liberally from Ruffin's decision and evaluates other historians' interpretations of both the opinion and Stowe's provocative novel. Tushnet provides a finely detailed analysis of Ruffin's opinion, portraying the judge as a man compelled by law to uphold the slave-owner's right while moved as a Christian by the slave's maltreatment and ever hopeful that communal morality and a deep-seated sense of honor would moderate the excesses of slave owners. As Tushnet shows, however, slave law was a means for maintaining the ideological hegemony of the Southern master class. Slave Law in the American South paints a broad picture of a landmark case, tying together legal, historical, social, political, and even literary strands to show how the law itself was implicated in the persistence of slavery. It sheds new light on slavery and Southern history, as it probes the conscience of a troubled jurist incapable of fully transcending his times.
-
Type:
Categories:
Sub-Categories:
Mark Tushnet examines the relation between the Constitution and civil society's institutions. The paper points out that civil society's institutions are creatures of law, including constitutional law, and so—on the most abstract level—cannot be understood of as operating entirely outside the domain of the state. Likewise, the paper examines contemporary U.S. constitutional doctrine, primarily the law of free speech, in relation to civil society's institutions, and argues that the constitutional protections given to those institutions' efforts to influence policymaking are less robust than might be expected, consisting primarily of a ban on discrimination against particular viewpoints.
-
Type:
Categories:
Sub-Categories:
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).
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
This chapter examines three practices of non-judicial constitutional review, which involve constitutional review conducted by elected officials. It identifies the incentives and structures for judges and quasi-judicial bureaucrats who interpret constitutional norms. It tries to bring out the effects that different institutional structures and, in particular, different incentives have on the officials' performance, with an eye to comparing the effectiveness of non-judicial constitutional review with that of judicial constitutional review. It identifies what might be truly distinctive about judicial constitutional review, and suggests that the necessary comparative judgment about the relative ability of courts and non-judicial actors to perform constitutional review well is harder than our familiar understandings would have it.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
Links:
Constitutional interpretation occurs in many nonjudicial settings. This Essay examines three practices of nonjudicial constitutional interpretation - that done by the United States Senate in debating points of order raising constitutional questions, that done by the Office of Legal Counsel in the U.S. Department of Justice when commenting on proposed legislation, and that done by Ministers of the British government under the Human Rights Act of 1998 in determining that proposed legislation is compatible with the European Convention on Human Rights. With respect to each practice, the Essay examines the incentives under which the decision-makers operate, comparing their incentives to those of judges engaged in constitutional interpretation. It notes that nonjudicial interpreters have political and professional reasons for offering the constitutional interpretations they do and that some of their incentives push them in the direction of offering interpretations that are not substantially less disinterested than the interpretations offered by judges. The Essay also describes the particular ways in which each institution of nonjudicial review differs from judicial review; the Senate, for example, need not take up all the constitutional objections that might be presented in a case challenging enacted legislation, and the Office of Legal Counsel has an institutional interest in defending the president's prerogatives through aggressive readings of judicial precedents and historical practices. The Essay shows that the differences - with respect to disinterestedness - between nonjudicial and judicial interpreters are smaller than many prior studies have suggested, in part because the concept of judicial disinterestedness has not been carefully defined.
-
Type:
Categories:
Sub-Categories:
-
Defining the Field of Comparatative Constitutional Law (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
Type:
Categories:
Sub-Categories:
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.
-
Type:
Categories:
Sub-Categories:
This essay describes the transformation of the political question doctrine and the law of standing from flexible standards, suitable as techniques identified first by Alexander Bickel for the prudent exercise of political judgment by the Supreme Court, into true legal doctrines, whose relative rigidity makes their use as prudential avoidance devices difficult. The essay uses Bush v. Gore to illustrate the fact that doctrinalization has done much to eliminate justiciability concepts as vehicles for exercising prudent judgment, showing that the Court ignored substantial and interesting political question and standing issues in the case. The essay concludes by arguing that justiciability concepts as vehicles for prudent judgment fit well into the historical and political context in which Bickel wrote, and that their disappearance fits equally well with the historical and political context of today's Court and its (and our) acceptance of a strong theory of judicial supremacy.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Links:
Bruce Ackerman has argued that the U.S. constitutional system has undergone several major transformations.2 His recent witings continue to reject the proposition that the United States has recently experienced another constitutional transformation. I believe that he is wrong, and that the past decade has seen the consolidation of a new constitutional order, different from the one that prevailed from 1937 to the 1980s, which I call the New Deal-Great Society constitutional order.
-
Type:
Categories:
Sub-Categories:
This article examines the protection religious exercise receives independent of the Free Exercise Clause as currently construed. Much religious exercise is protected as speech or as symbolic speech. Under current free speech doctrine, religious practices that are speech or symbolic speech receive approximately the same protection as, or even somewhat more protection than, those practices receive under current Free Exercise doctrine. Government may not discriminate against religious speech, a result reached under current free exercise doctrine through a different route. Religious practices that are not speech or symbolic speech receive minimal protection under current Free Exercise doctrine, and little if any protection under the Free Speech Clause. The right of expressive association as articulated in Boy Scouts v. Dale provides additional protection for religious practices, particularly because Dale requires the courts to defer to associations' own definitions of the messages they wish to send and to their claims that including others in the association would interfere with those messages. Taken together, free speech doctrine and the right of expressive association may provide as much protection for religious practices as does the Free Exercise Clause as currently interpreted. The alternative doctrines, thus, may render the Free Exercise Clause redundant.
-
Type:
Categories:
Sub-Categories:
Based on a conference held at the University of Wisconsin Law School in Feb. 2000.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Profiles the life and works of Thurgood Marshall, with his speeches, writings, arguments, opinions and reminiscences.
-
Type:
Categories:
Sub-Categories:
This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that the Court is about to - or at least should - engage in what I have called projects of restoration and revolution. That is, the Court will, or should, return to an understanding of the relation between the nation's power with respect to foreign affairs that prevailed before the New Deal-Great Society era.
-
Type:
Categories:
Sub-Categories:
Links:
One might think that a United States perspective on entrenchment of human rights would be particularly valuable for states like the United Kingdom beginning to develop institutions for entrenchment. The US experience with the institution of judicial review of legislation for compatibility with some norms expressed in the constitution, dates at least to Marbury v. Madison, decided in 1803. Two hundred years' experience might provide a useful perspective on new institutions entrenching human rights. This chapter discusses several reasons why one might be sceptical about what precisely the US experience can contribute to a general understanding of entrenchment. The most fundamental sources of scepticism about the usefulness of a US perspective — the manner in which the judges who exercised the power of judicial review are chosen in the country, and the conception they have of their role — are discussed.
-
Type:
Categories:
Sub-Categories:
Il ne serait pas exagéré de dire que la peine de mort est désormais la summa divisio, le critère principal de distinction entre deux grandes civilisations juridiques : la civilisation européenne et la civilisation américaine.
-
Type:
Categories:
Sub-Categories:
The Review-Essay discusses Lucas Powe's recent book, The Warren Court and American Politics. Examining Powe's analysis of the way in which the Warren Court's decisions influenced politics and of the way in which politics affected the Warren Court's decisions, it raises questions about the evidentiary support for some of Powe's claims. It suggests that Powe may have too narrow a conception of politics, almost confining it to what happens in Washington, D.C., and that a deeper political analysis of the Warren Court would require attention to American progressive liberalism understood as an intellectual and conceptual construct.
-
Type:
Categories:
Sub-Categories:
Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others. Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Mark Tushnet, Progressive Era Race Relations Cases in Their "Traditional" Context, 51 Vand. L. Rev. 993 (1998).
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 focuses on the second half of a brilliant and unique career. When tapped by LBJ in 1967 to ascend to the High Court, the seasoned Marshall - as the first African-American Justice - brought desegregation to the bench in word, thought, and deed. But as Mark V. Tushnet illustrates in this book, Marshall, a Great Society liberal, brought many other progressive concepts and convictions. This book, the first to fully utilize the papers of Justices Marshall and William J. Brennan, describes Marshall's approach to constitutional law in areas ranging from civil rights and the death penalty to abortion and affirmative action. Tushnet, who served as a law clerk for Marshall in the early 197Os, gives ample attention to the Court's operations during Marshall's tenure, the relations among the judges, and the particular roles played by Chief Justice Warren Burger, Justice Brennan, and Justice Antonin Scalia. Making Constitutional Law aptly locates the Supreme Court of Marshall's tenure within its rich political and historical contexts, showing how the nation's drift toward conservatism affected the Court's debates and decisions, and how Marshall's ardent liberalism became increasingly isolated. Making Constitutional Law will appeal to students of law, history, politics, and recent American culture.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Mark Tushnet, New Histories of the Private Law of Slavery, 18 Cardozo L. Rev. 301 (1996).
Type:
Categories:
Sub-Categories:
Symposium: Bondage, Freedom and the Constitution: The New Slavery Scholarship and Its Impact on Law and Legal Historiography
-
Type:
Categories:
Popular debate about constitutional issues such as abortion, affirmative action, the death penalty, and free speech, has become increasingly polarized, with a persistent and growing tendency to treat constitutional questions such as these as if they were easy and the answers obvious. In Remnants of Belief: Contemporary Constitutional Issues, Seidman and Tushnet investigate this phenomenon, tracing its beginning to the transformation of American government that accompanied the New Deal revolution over a half century ago. In their investigation, the authors examine the debates on issues such as free speech, criminal procedure, discrimination, and capital punishment, and the views of prominent figures in the field such as Robert Bork, Laurence Tribe, and Cass Sunstein. The book explores popular constitutional argument and suggests some common reasons why all sides of modern constitutional debate are unsatisfactory. It explores the reasons why constitutional argument has ceased to serve its primary function: to bridge the gaps between citizens by appealing to the principles that unite them.
-
Mark Tushnet, The Jurisprudence of Thurgood Marshall, 1996 U. Ill. L. Rev. 1129.
Type:
Categories:
Sub-Categories:
-
Mark Tushnet, Brown v. Board of Education: The Battle for Integration (Franklin Watts 1995).
Type:
Categories:
Sub-Categories:
Describes the people playing major roles in the battle for desegregation, the smaller court cases that led up to Brown v. The Board of Education, and the results and repercussions of the case.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. Rev. 748 (1995).
Type:
Categories:
Sub-Categories: