Mark Tushnet

William Nelson Cromwell Professor of Law, Emeritus

Areeda 223

617-496-4451

Assistant: Ann Wheelwright / 617-998-0226

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 of constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional democracy." 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 a history of the Supreme Court in the 1930s.

Areas of Interest

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 V. Tushnet, American Legal Realism Today: An Idiosyncratic Restatement (Jan. 5, 2022).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Law & Social Change
,
Judges & Jurisprudence
Type: Other
Abstract
This essay offers my explication of what I understand to be the principle propositions that constitute American legal realism. “Explication,” because I do not intend to defend the propositions, and “my” because the essay is not an exegesis of the work of major legal realists but is instead my personal version of what I take to be those propositions. The core assertion is that a person seeking to understand what the law is in some jurisdiction must engage in an empirical inquiry into social facts. These facts include matters such as the organization of the legal profession, culturally prevalent ideologies about law, and more. American Legal Realism, that is, in my view is fundamentally a sociological account of law.
Mark V. Tushnet, Institutions for Realizing Popular Constitutionalism, 47 Revus: J. for Const. Theory & Phil. L. 1 (2022).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Foreign Law
Type: Article
Abstract
This essay discusses how several institutions might be designed to implement popular constitutionalism within a liberal constitutionalism frame. The institutions are (1) forms of direct popular legislation such as referendums, (2) imperative mandates or instructions to representatives that the representatives must follow, sanctioned by automatically removing a noncompliant representative from office, and (3) modern communications technologies used to elicit citizen views as an alternative to voting (or polling). As to referendums, it critiques arguments (1) that referendums can oversimplify complex policy options in ways that sometimes produce outcomes that are indefensible in principle, incoherent, and inconsistent with what the people would prefer after the kind of deliberation that occurs in representative assemblies, and (2) that referendums systematically, though not inevitably, threaten rights of minorities that liberal constitutionalism guarantees. As to imperative mandates, it argues that objections track those to referendums, and offers parallel responses. And as to modern communications technologies, it focuses on such concerns that they fail to take advantage of specialized knowledge, and argues that overestimate the degree to which specialists actually have specialized knowledge and underestimate the degree to which such knowledge is available within a population of ordinary people and observes that sometimes domains in which specialized knowledge really is required can be identified in advance and exempted from these mechanisms.
Mark V. Tushnet, The Hughes Court: from Progressivism to Pluralism, 1930 to 1941 (2022).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Legal History
Type: Book
Abstract
"Steven Shapin began a classic work with this sentence: "There was no such thing as the Scientific Revolution, and this is a book about it."1 This book’s theme might be put in similar terms. There was no Constitutional Revolution of 1937, and this is a book about it. As the book’s subtitle suggests, the Hughes Court from its inception in 1930 was in large measure a Progressive court, committed in a wide range of areas to the vision of active government associated with the Progressive movement in thought and politics. The Court was not dominated by a deep formalism, though most of the justices, liberals and conservatives alike, had their moments of formalism - and not merely for strategic reasons when controlling precedent forced formalism on them. At one time or another and cumulatively a great deal of the time, all of the justices incorporated ideas about good public policy in their interpretations of the Constitution and federal statutes"– Provided by publisher.
Mark Tushnet, The Politics of Constitution-Making, in Elgar Handbook on the Politics of Constitutional Law (Mark Tushnet & Dimitry Kochenov eds., forthcoming 2022).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.
Mark V. Tushnet, Restoring Self-Governance: Constitutional Change and the Charge of Illegality, Verfassungsblog (Dec. 14, 2021).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Legal Theory & Philosophy
Type: Other
Abstract
Perhaps the wave of authoritarian populism has begun to recede. Rebuilding liberal constitutionalism in its aftermath now requires some attention, as Andrew Arato and András Sajó suggest. (This intervention addresses some but not all of the questions they raise.)
Mark Tushnet & Bojan Bugariec, Power to the People: Constitutionalism in the Age of Populism (2021).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
Power to the People proposes that some forms of populism are inconsistent with constitutionalism, while others aren’t. By providing a series of case studies, some organized by nation, others by topic, the book identifies these populist inconsistencies with constitutionalism-and, importantly, when and how they are not. Opening a dialogue for the possibility of a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new institutions that can determine and implement a majority’s views without always threatening constitutionalism.
Mark Tushnet, Alternative Forms of Judicial Review, 280 Revista de Direito Administrativo 15 (2021).
Categories:
Constitutional Law
Type: Article
Abstract
The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.
Rosalind Dixon & Mark Tushnet, Constitutional Democracy and Electoral Commissions: A Reflection from Asia, 16 Asian J. Compar. L. S1 (2021).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Comparative Law
Type: Article
Abstract
This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.
Mark Tushnet, Has the U.S. Supreme Court Effectively Overruled Roe v. Wade?, Verfassungsblog (Sept. 3, 2021).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Other
Abstract
"Late in the evening of September 1 the U.S. Supreme Court issued an order that many critics have described as effectively overruling Roe v. Wade, the 1973 decision holding that the U.S. Constitution protected a woman’s right to choose to have an abortion. That description, though technically inaccurate, does capture something important about the Court’s order: It made abortions unavailable as a practical matter for many women in Texas who would have had access to abortion services had the Court issued a different order."
Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (2021).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Theory & Philosophy
,
Separation of Powers
,
Comparative Law
Type: Book
Abstract
"Chapter Nine of South Africa’s Constitution is titled, "State Institutions Protecting Constitutional Democracy." Its list of institutions that "strengthen constitutional democracy" includes the Public Prosecutor, the Human Rights Commission, the Auditor-General, and the Electoral Commission. Seen in the context of the Constitution’s written text, these institutions form a branch on a par with Parliament and the President. Textual placement may not be important in itself. The authors of the South African Constitution were on to something important, though. They saw that the traditional Montesqueian enumeration of three and only three branches of government no longer identified the complete set of desiderata for institutional design. Dissatisfaction with the Montesquiean enumeration was apparent as well in Roberto Mangabeira Unger’s False Necessity, published in 1987. That enumeration, Unger wrote, was "dangerous" because it "generates a stifling and perverse institutional logic...." The solution for Unger lay in multiplying the number of branches. He offered several examples: a branch "especially charged with enlarging access to the means of communication, information, and expertise," and a branch - labeled the "destabilization branch" - designed "to give every transformative practice a chance.""– Provided by publisher.
Mark Tushnet, Critical Legal Studies and the Rule of Law, in Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds., 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Book
Abstract
This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.
Mark Tushnet, Introduction: The Pasts & Futures of the Administrative State, 150 Daedalus 5 (2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
To understand contemporary arguments about deconstructing and reconstructing the modern administrative state, we have to understand where that state came from, and what its futures might be. This introductory essay describes the traditional account of the modern administrative state’s origins in the Progressive era and more recent revisionist accounts that give it a longer history. The competing accounts have different implications for our thinking about the administrative state’s constitutional status, the former raising some questions about constitutionality, the latter alleviating such concerns. This introduction then draws upon the essays in this issue to describe three options for the future. Deconstructing the administrative state without adopting a program of across-the-board deregulation would entail more regulation by the legislature itself and would insist that Congress give clear instructions to administrative agencies. Tweaking would modify existing doctrine around the edges without making large changes. Reconstruction might involve adopting ever more flexible modes of regulation, including direct citizen participation in making and enforcing regulation.
Mark Tushnet, The Fundamental Attribution Error as Applied to Governance and the COVID-19 Pandemic (June 2, 2021).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Social Change
,
Law & Political Theory
,
Health Law & Policy
Type: Other
Abstract
Something akin to what social psychologists call the “fundamental attribution error” underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated.This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the “novel” coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it “merely” a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad.The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.
Mark Tushnet, A Government of Laws That Is a Government of Men and Women, 74 Ark. L. Rev. 323 (2021).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Supreme Court of the United States
Type: Article
Abstract
The article focuses on U.S. Supreme Court cases including Korematsu v. United States and Trump v. Hawaii on racism in the U.S. and travel restrictions of Japanese Americans and Muslims. Topics include saboteurs and terrorists posed threats of uncertain degrees to national security, former U.S. President Franklin D. Roosevelt’s decision to ban travel, and the role of men and women in a government of laws.
Mark Tushnet, The President and Individual Rights, 29 Wm. & Mary Bill Rts. J. 809 (2021).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Executive Office
,
Separation of Powers
Type: Article
Abstract
Introduction: Some Groundwork Departmentalist constitutional theory asserts that members of each branch have the authority to use their own understandings of the Constitution when they act within their prescribed domain.1 Specifically, departmentalists claim that neither the President nor members of Congress are required to accept the interpretations of the Constitution offered by the courts, either in evaluating possible courses of action beforehand or bowing to a judicial decision after the event as a matter of principle.2 Sometimes departmentalists confine their claims to constitutional interpretation of provisions about each department’s scope of authority.3 So, for example, a departmentalist president might claim that Article II gives her the power to remove at will any principal officer of the government from office even though Congress has purported to limit the removal power in ways that seem consistent with Supreme Court precedent.4 Individual rights cut across all three branches.5 Assume that Congress is exercising one of its enumerated powers. For present purposes, I mean by "legal" rights those that can be enforced in court.7 That a right is associated with a constitutional provision means (a) that it is not something the courts would find required by the Constitution itself,8 (b) that it advances the values underlying the judicially enforced right, and (c) that the associated right falls within a range of reasonable interpretation of some constitutional provision even though the courts have adopted a different interpretation.9 With the notions of "legal rights" "associated with" constitutional rights in hand, what can be said about the President and individual rights? Section B then turns to the case where the President and her appointees agree with the courts about the content of an individual right.13 Administrative constitutionalism in this mode means that executive officials act within their jurisdiction to protect the legal rights the courts would recognize.14 It retrieves an argument made decades ago by Bernard Meltzer, that a world with more remedies for the same rights violations might not be better-from a rights-protective point of view-than a world with fewer such remedies.15 A brief Conclusion summarizes the argument.16 I. The President’s Discretionary Powers One standard example offered in defense of departmentalism is President Thomas Jefferson’s decision to pardon those who had been convicted of violating the Federalist-inspired Sedition Act of1798.17 Jefferson did so because he believed that the Sedition Act was unconstitutional on federalism and freedom-of-expression grounds.18 And he did so in the face of lower court decisions upholding the statute against constitutional challenges.19 Another standard example is President Andrew Jackson’s veto of a bill rechartering the Bank of the United States.20 Jackson’s veto invoked policy and constitutional (federalism) objections to the rechartering.21 Notably, the Supreme Court here had rejected the constitutional challenges.22 Finally, presidents can recommend that Congress enact a statute providing more protection to individual privacy from government surveillance than the Supreme Court has or would hold constitutionally guaranteed.23 These three examples involve exercises of discretionary presidential powers.24 The key point about discretionary decisions is that before, and sometimes even after, they are made they necessarily create no legal rights.25 No one convicted of violating the Sedition Act had a right to a pardon-even in the form of a right to have a President who believes the Act unconstitutional issue a pardon.26 Or consider United States v. Lovett\vphantom1 There Congress had directed the President to withhold pay from three named government officials.28 President Franklin Roosevelt signed the bill, stating, "I have been forced to yield, to avoid delaying our conduct of the war. Constitutional rights either trump other non-rights social values, in Dworkin’s terms, or compete against those other values.34 In the first case the contours of the constitutional right are defined with reference to those other values.35 So, for example, the right to free expression trumps the values of social stability, but the right does not encompass (in the United States) utterances that (to oversimplify) are intended to and are likely to incite imminent lawless action.36 In the second case, the values associated with the right are balanced against other social values such as stability or, in the usual example, the ability of people to use streets and parks for their ordinary purposes.37 In either version, a President’s discretionary action that takes into account the values associated with a constitutional right might bump up against other social values.38 In the usual case this simply produces an ordinary policy judgment that, in the policymaker’s view (here, the President’s), public policy is better advanced by the decisionmaker’s preferred course of action.39 Sometimes, though, the other social values are also associated with individual rights.
Mark Tushnet, Can There Be Autochthonous Methods of Constitutional Interpretation?, in Populist Challenges to Constitutional Interpretation in Europe and Beyond 62 (Fruzsina Gárdos-Orosz & Zoltán Szente eds., 2021).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
Originalism in Austria means examining the historical materials associated with the adoption of the Austrian constitution; originalism in India means examining the historical materials associated with the adoption of the Indian constitution. A striking example is provided in the South African constitution. Many nations limit the time that a person can be held after arrest but before presentation to a judicial officer. Often these provisions state that the person must appear before a judge within a reasonable period. Scholars interested in the constitutional and nature see this as either a crystallization of inchoate ideas rattling around in other constitutional systems, or as foreshadowing a coming general recognition of ecological rights. Interpretations of identical substantive provisions also vary, though the case is complicated by questions of translation and contextual understanding. National political and social cultures determine the weight given to at least some constitutional values.
Mark Tushnet, Review of Dixon and Landau’s Abusive Constitutional Borrowing, Can. J. Comp. & Contemp. L., 2021, at 23 (book review).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Comparative Law
Type: Article
Mark Tushnet & Bojan Bugaric, Populism and Constitutionalism: An Essay on Definitions and Their Implications, 42 Cardozo L. Rev. 2345 (2021).
Categories:
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Executive Office
,
Comparative Law
,
European Law
Type: Other
Abstract
Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.
Mark Tushnet, "Sometimes the Magic Works, Sometimes It Doesn’t": A Comment on Chilton and Versteeg, The U. Chi. L. Rev. Online (Apr. 5, 2021).
Categories:
Constitutional Law
Type: Other
Mark Tushnet, “Rock ‘n’ Roll” and “Roll Over Beethoven”: Tom Stoppard and Critical Legal Studies (Harvard Pub. L. Working Paper No. 21-15, Mar. 2, 2021).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Critical Legal Studies
,
Law & Humanities
,
Law & Social Change
Type: Other
Abstract
In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.
Mark V. Tushnet, Institutions for Protecting Constitutional Democracy: An Analytic Framework, with Special Reference to Electoral Management Bodies, 16 Asian J. Comp. L. (Supplement) S10 (2021).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.
Mark Tushnet, Music and Art, in The Oxford Handbook of Freedom of Speech 431 (Adrienne Stone & Frederick Schauer eds., 2021).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
First Amendment
,
Arts & Entertainment Law
,
Law & Humanities
,
Legal Theory & Philosophy
Type: Book
Abstract
This chapter explores the problem of incorporating music and art into a theory of freedom of speech without also including a far wider range of human activities. Constitution writers and scholars of free expression agree that music and art are covered by principles of free expression. Exactly why they are is a bit unclear, but the unclarity has few practical implications. Examination of the coverage of music and art, though, may reveal something about free expression theory. It may show that that theory deals with subjects sharing a family resemblance rather than resting upon ‘foundations’. If so, the examination has significant theoretical implications—and almost no practical ones. Democratic governments rarely attempt to coercively regulate art and music.
Mark Tushnet & Beatriz Botero Arcila, Conceptualizing the Role of Courts in Peace Processes, 18 Int'l J. Const. L. 1290 (2021).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Courts
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.
Mark Tushnet, Democratic Remedies if Ignorance Threatens Democracy, in Democratic Failure 262 (Melissa Schwartzberg & Daniel Viehoff eds, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
"This volume of NOMOS--the 63rd in the series--emerged from papers and commentaries given at the annual meeting of the American Society for Political and Legal Philosophy (ASPLP). This meeting marked the first in the Society's modern history not linked to an annual conference of one of the three contributing disciplines--philosophy, political science, and law--and took place at the new institutional home for ASPLP, Boston University School of Law, on September 28, 2018. Our topic, "Democratic Failure," was selected by the Society's membership"--p. ix.
Mark Tushnet, Willis Van Devanter: The Person, 45 J. Sup. Ct. Hist. 308 (2020).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Mark Tushnet, The Kids Are All Right: The Law of Free Expression and New Information Technologies (Harvard Pub. L. Working Paper No. 21-19, Oct. 19, 2020).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Science & Technology
,
Communications Law
,
Cyberlaw
Type: Other
Abstract
Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.
Mark V. Tushnet, The Law of Free Expression and New Information Technologies: The First Amendment Isn’t Obsolete (Sept. 14, 2020).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Other
Abstract
Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark Tushnet & Pamela S. Karlan, Constitutional Law: 2020 Supplement (2020).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
,
Other Amendments
Type: Book
Abstract
The 2020 Annual Supplement, like prior Supplements, includes excerpts from recent scholarship and from important new decisions of the Supreme Court. This was a most interesting Term, and several of the new decisions that are covered in the Annual Supplement are listed below. New to the 2020 supplement: Trump v. Vance Espinoza v. Montana June Medical Services v. Russo Seila Law v. CFPB Our Lady of Guadalupe School v. Morissey-Berra Chiafalo v. Washington Little Sisters of the Poor v. Pennsylvania
Mark Tushnet, Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law (Harv. Pub. L. Working Paper No. 20-19, 2020).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
Sub-Categories:
Constitutional History
,
Critical Legal Studies
,
Law & Political Theory
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
,
Comparative Law
,
Legal Scholarship
Type: Other
Abstract
This Essay is a personal reflection on the state of scholarship in the field of comparative constitutional law. I draw parallels between the development of and reaction to “critical perspectives” on domestic US constitutional law in the 1970s and 1980s and the development and reaction to similar perspectives on comparative constitutional law today. I argue that the parallels have similar political roots, in concern that critical perspectives undermine the ability of constitutional law, whether domestic or comparative, to resist conservative and anti-liberal tendencies. I conclude with some speculations about the source of the political commitments by scholars of comparative constitutional law, and in particular about the way the field’s overall cosmopolitanism affects scholarship on anti-cosmopolitan populisms.
Mark Tushnet, Varieties of Liberal Constitutionalism, in Routledge Handbook of Comparative Constitutional Change (Xenophon Contiades & Alkmene Fotiadou eds., 2020).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
The book brings together the most respected scholars working in the field, and presents a genuine contribution to comparative constitutional studies, comparative public law, political science and constitutional history.
Mark Tushnet, The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, in Judicial Review: Process, Power and Problems 13 (Salman Khurshid, Sidharth Luthra, Lokendra Malik & Shruti Bedi eds., 2020).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Social Welfare Law
,
Judges & Jurisprudence
,
Courts
,
Comparative Law
Type: Book
Abstract
This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international. Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (2020).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Book
Abstract
The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism-a move that would restore the other branches of government’s role in deciding constitutional questions.
Mark Tushnet, Spontaneous Demonstrations and the First Amendment, 71 Ala. L. Rev. 773 (2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Politics & Political Theory
,
State & Local Government
Type: Article
Mark Tushnet, 'A Motive, Not A Judgment': Reflections on Kieslowski’s Invitation to Think About Morality (Apr. 30, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
,
Law & Humanities
,
Legal Theory & Philosophy
Type: Other
Abstract
Krysztof Kieslowski’s classic “Decalogue: The Ten Commandments – Ten Short Films About Morality” invites viewers to reflect upon what morality is: Propositions about what worthy actions or decisions are? Unintelligible without support from a deity? The choices – all the choices – one makes while going through everyday life? One of Kieslowski’s characters suggests that motives explain but don’t justify actions, and that all we can do is understand why people act as they do. A character in another Kieslowski film concludes that judging others’ actions lacks humility. The ten films, originally made for Polish television in the late 1980s, present morality through complex narratives that deny us the choice of reducing morality to propositions. In the end, though, the films might better support the thought that narrative is morality. In the course of leading up to this conclusion, this Article examines Kieslowski’s presentation of female characters and the intimations the films contain about his views about religion and its relation to the idea of narrative as morality.
Mark Tushnet, Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries, 70 U. Toronto L.J. 95 (2020).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Comparative Law
,
Foreign Law
,
Developing & Emerging Nations
Type: Article
Abstract
Chapter 9 of the South African Constitution refers to ‘institutions protecting constitutional democracy’ (IPDs). Contemporary constitution designers have written into new constitutions numerous such institutions, and scholars have begun to identify them as a fourth branch of government alongside the traditional legislative, executive, and judicial branches. This article explores some of the conceptual issues associated with the new fourth branch: what justifies the creation of these IPDs (the short answer: a particular type of conflict of interest); what are their generic characteristics (the short answer: they are reasonably permanent institutions rather than ad hoc or statutory ones, unlike their antecedents); what is their relation to a constitutional court – another twentieth-century innovation; and why should they be understood to be a ‘branch’ of government rather than a congeries of useful innovations (the short answer: like the traditional branches, they perform distinctive function not readily performed by institutions located within those branches)?
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (Wolters Kluwer 6th ed., 2020).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Sujit Choudhry & Mark Tushnet, Participatory Constitution-Making: Introduction, 18 Int’l J. Const. L. 173 (2020).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Elections & Voting
,
Politics & Political Theory
,
Comparative Law
Type: Article
Abstract
At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019) (reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Mark Tushnet, Impeaching a President: how it works, and what to expect from it, Verfassungsblog: On Matters Constitutional (Sept. 9, 2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Corruption
,
Politics & Political Theory
Type: Other
Mark Tushnet, Epistemic Closure and the Schechter Case (Aug. 13, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Religion
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Government Accountability
Type: Other
Abstract
In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions. In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works. Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.
Mark Tushnet, Weak-Form Review: An Introduction, 17 Int'l J. Const. L. 807 (2019).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Courts
,
International Law
,
Comparative Law
,
Legal Scholarship
Type: Article
Abstract
About two decades ago Stephen Gardbaum and I noticed something seemingly new in constitutional design: the emergence of a “New Commonwealth Model” of constitutional review or “weak-form” judicial review.1 Our starting point was constitutional review under the Canadian Charter of Rights and, in particular, its theorization by Peter Hogg and Alison Bushell Thornton as creating opportunities for dialogue between legislatures and constitutional courts.
Mark Tushnet & Louis Michael Seidman, On Being Old Codgers: A Conversation about a Half Century in Legal Education (Apr. 12, 2019).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Abstract
This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions.
Mark V. Tushnet, Court-Packing On the Table in the United States?, VerfBlog (Apr. 3, 2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Other
Mark Tushnet, Varieties of Populism, 20 German L.J. 382 (2019).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Comparative Law
Type: Article
Abstract
Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.
Mark Tushnet, Comparative Constitutional Law, in The Oxford Handbook of Comparative Law 1193 (Mathias Reimann & Reinhard Zimmermann eds., 2d ed. 2019).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.
Mark Tushnet, The Globalisation of Constitutional Law as a Weakly Neo-liberal Project, 8 Global Constitutionalism 29 (2019).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
International Law
Type: Article
Abstract
An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.
Mark Tushnet, The American Law of Slavery, 1810-1860 Considerations of Humanity and Interest (Princeton Legacy Library 2019).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
State & Local Government
,
Legal History
Type: Book
Mark Tushnet, Book Review, 47 Hist. Rev. New Books 2 (2019) (reviewing Christopher Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era (2018)).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Civil Rights
,
Law & Social Change
Type: Article
Mark Tushnet, Book Review, 92 Pac. Aff. 399 (2019) (reviewing Politics and Constitutions in Southeast Asia, Marco Bünte and Björn Dressel eds., 2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
East Asian Legal Studies
Type: Article
Mark Tushnet, Institutions Supporting Constitutional Democracy: Some Thoughts About Anti-Corruption (and Other) Agencies, 2019 Sing. J. Legal Stud. 440.
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Corruption
,
Courts
,
Elections & Voting
,
Government Accountability
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Comparative Law
Type: Article
Abstract
Classical constitutional theory identified three functions of government—law-making, law enforcement, and adjudication of legal disputes—and assigned them to three distinct branches of government. As this tripartite framework began to break down over the course of the twentieth century, constitutional theorists identified a fourth function—the protection of the constitution itself. The corruption of high-level public officials can undermine democracy, in large part by generating public cynicism about the possibility that government can act for the general good. In principle, a structurally independent institution suggests itself as the solution, such as electoral commissions and anti-corruption institutions. This paper presents two case studies of institutions supporting democracy in South Africa and Brazil. It suggests that those who design these institutions, and those who staff them, should be sensitive to the complicated interactions between independence, necessary to ensure that high-level corruption comes under scrutiny, and accountability, necessary to ensure that anti-corruption investigations are well-integrated into the nation's system of government as a whole.
Mark Tushnet, Book Review, 123 Am. Hist. Rev. 1671 (2018) (reviewing William Davenport Mercer, Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty (2017)).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
State & Local Government
,
Federalism
Type: Article
Rosalind Dixon, Ron Levy & Mark Tushnet, Theories and Practices of Federalism in Deeply Divided Societies, 46 Fed. L. Rev. 481 (2018).
Categories:
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Federalism
,
Comparative Law
Type: Article
Mark Tushnet, Institutions Protecting Democracy: A Preliminary Inquiry, 12 Law & Ethics Hum. Rts. 181 (2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Separation of Powers
,
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Government Accountability
,
Comparative Law
,
Foreign Law
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Mark Tushnet, Advanced Introduction to Freedom of Expression (2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
First Amendment
,
Comparative Law
Type: Book
Abstract
The Advanced Introduction to Freedom of Expression provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book will be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of expression and the law.
Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
Comparative Law
Type: Book
Abstract
Is the world facing a serious threat to the protection of constitutional democracy? There is a genuine debate about the meaning of the various political events that have, for many scholars and observers, generated a feeling of deep foreboding about our collective futures all over the world. Do these events represent simply the normal ebb and flow of political possibilities, or do they instead portend a more permanent move away from constitutional democracy that had been thought triumphant after the demise of the Soviet Union in 1989? Constitutional Democracy in Crisis? addresses these questions head-on: Are the forces weakening constitutional democracy around the world general or nation-specific? Why have some major democracies seemingly not experienced these problems? How can we as scholars and citizens think clearly about the ideas of "constitutional crisis" or "constitutional degeneration"? What are the impacts of forces such as globalization, immigration, income inequality, populism, nationalism, religious sectarianism? Bringing together leading scholars to engage critically with the crises facing constitutional democracies in the 21st century, these essays diagnose the causes of the present afflictions in regimes, regions, and across the globe, believing at this stage that diagnosis is of central importance - as Abraham Lincoln said in his "House Divided" speech, "If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it."
Mark Tushnet, Are Constitutional Democracies Really in Crisis?, Int’l J. Const. L. Blog (Sept. 10, 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Comparative Law
Type: Other
Michael Klarman, Nadine Strossen, Eli Noam, Sanford Levinson & Mark Tushnet, Forum: What’s the Matter With the Supreme Court?, The Nation (Sept. 5, 2018).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Antoni Abat i Ninet & Mark Tushnet, A Response to Chibli Mallat, 66 Am. J. Comp. L. 229 (2018).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Law & Political Theory
,
Comparative Law
Type: Article
Mark Tushnet, Book Review, 16 Int’l J. Const. L. 699 (2018)(reviewing Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L. Neo ed., 2017)).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar 2nd ed., 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Mark Tushnet, The Pirate’s Code: Constitutional Conventions in U.S. Constitutional Law, 45 Pepp. L. Rev. 481 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Politics & Political Theory
,
Congress & Legislation
,
Supreme Court of the United States
Type: Article
Abstract
A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions' erosion has been accompanied by a configuration of partisan politics that makes it difficult to present a discussion of that erosion in a way that will not itself seem partisan. I argue that contention over claims about departures from conventions takes forms familiar from ordinary common-law reasoning--perhaps not surprising because common-law reasoning rests on judicial decisions that cannot offer canonical textual formulations of the rules the courts apply. This article also discusses some of the ways in which political actors can depart from conventions, and some consequences of such departures. Finally, the Essay takes up some larger questions about constitutional transformation through abandonment or revision of constitutional conventions.
Mark Tushnet, Amendment Theory and Constituent Power, in Comparative Constitutional Theory 317 (Gary Jacobsohn & Miguel Schor eds, 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Comparative Law
,
European Law
Type: Book
Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet, Pamela S. Karlan, Constitutional Law ((Wolters Kluwer 8th ed. 2018).
Categories:
Constitutional Law
Type: Book
Mark Tushnet, Rights Inflation in Canada and the United States, in Canada in the World: Comparative Perspectives on the Canadian Constitution 209 (Richard Albert & David R. Cameron eds., 2018).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Fifth Amendment
,
Fourteenth Amendment
,
Politics & Political Theory
,
Comparative Law
Type: Book
Mark Tushnet, Trump v. Hawaii: “This President” and the National Security Constitution, 2018 Sup. Ct. Rev. 1. (2018).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Immigration Law
,
Discrimination
,
Race & Ethnicity
,
Executive Office
,
Judges & Jurisprudence
,
National Security Law
,
Supreme Court of the United States
Type: Article
Mark Tushnet, Utopian Thinking for Progressive Constitutionalists, 93 Ind. L.J. 233 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse? I contrast utopian thinking to the thinking grounding the day-to-day work of progressive litigators and academics focused on achieving the best outcomes possible in the courts (and legislatures) as they are, not as they could be. To focus on the Supreme Court: In such work the hoped-for outcome is one favorable to our long-term goals. Ordinarily that means winning cases. With that goal in mind we unsurprisingly count votes and understand that to win a victory for progressivism (to-day) we have to develop arguments that have some chance of getting the vote of Justice Anthony Kennedy (or, or perhaps and, the vote of Chief Justice John Roberts). The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.
Mark Tushnet, Book Review: Constitutional and Political Theory: Selected Writings, Ernst-Wolfgag Böckenförde (Mirjam Kunkler & Tine Stein eds., 2017), 24 Constellations 480 (2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Comparative Law
,
European Law
Type: Article
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, 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
,
Property Law
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Antitrust & Competition Law
,
Law & Economics
,
Law & Political Theory
,
Legal History
,
Intellectual Property - Patent & Trademark
Type: Article
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, "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, Notas Sobre Alguns Aspectos Da Taxonomia Das “Geracoes” de Direitos, 2 Revista Estudos Institucionais 475 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
Comparative Law
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.
Mark Tushnet, Constitutional Revolutions and the Constituent Power: A Rejoinder to Jan Komarek, 13 Int’l J. Const. L. 1059 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Comparative Law
,
European Law
,
Human Rights Law
Type: Article
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
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, 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.

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