Taking the Constitution Away from the Courts

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Overview

"This is a thoroughly fascinating book by one of our major constitutional thinkers. What makes the book especially notable is that Tushnet not only assesses the possibility of constitutional interpretation outside the courts, but also goes on to deliver an assault on what might be termed constitutional interpretation 'inside' the judiciary. That is, the book becomes a ringing attack on judicial review. This will, no doubt, occasion much debate."—Sanford Levinson, University of Texas at Austin

"A major work-a potential classic that promises also to be an academic bestseller. . . . Tushnet demonstrates that the case for judicial review and thick constitutionalism is far, far more complex than previous theorists have recognized. Any person who wants to defend those principles in the future will have to deal with the claims of this book."—Mark Graber, University of Maryland

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Editorial Reviews

Booknews
Tushnet . . . makes a bold and compelling argument against judicial review as the primary means of constitutional reform, arguing that this tradition takes lawmaking out of the hands of the people and relinquishes it to the courts.
Times Literary Supplement
Both at the turn of the last century and at the turn of this one, the American courts have shown that they are willing to stand shoulder-to-shoulder with those who oppose progressive reform. Mark Tushnet's work is a welcome sign that at last the tide is beginning to turn, and that American law professors are no longer willing to be complicit in this obstructionism.
— Jeremy Waldron
The New Republic
A valuable addition to the swelling chorus of 'judicial review' skeptics. . . . a book-length defense of this interesting heresy.
— Richard Posner
The New Republic - Richard Posner
A valuable addition to the swelling chorus of 'judicial review' skeptics. . . . a book-length defense of this interesting heresy.
Times Literary Supplement - Jeremy Waldron
Both at the turn of the last century and at the turn of this one, the American courts have shown that they are willing to stand shoulder-to-shoulder with those who oppose progressive reform. Mark Tushnet's work is a welcome sign that at last the tide is beginning to turn, and that American law professors are no longer willing to be complicit in this obstructionism.
From the Publisher
"A valuable addition to the swelling chorus of 'judicial review' skeptics. . . . a book-length defense of this interesting heresy."—Richard Posner, The New Republic

"Tushnet . . . makes a bold and compelling argument against judicial review as the primary means of constitutional reform, arguing that this tradition takes lawmaking out of the hands of the people and relinquishes it to the courts."—Booknews

"[Tushnet's] ideas will challenge and inform academics, lawyers, and college students interested in the foundations of the American political system. . . . This bold analysis for 21st-century constitutional interpretation is highly recommended."—Library Journal

"Both at the turn of the last century and at the turn of this one, the American courts have shown that they are willing to stand shoulder-to-shoulder with those who oppose progressive reform. Mark Tushnet's work is a welcome sign that at last the tide is beginning to turn, and that American law professors are no longer willing to be complicit in this obstructionism."—Jeremy Waldron, Times Literary Supplement

James O'Fallon
...[A] closelyeven denselyargued case for the proposition that we don’t get much good from judicial reviewand we might be somewhat better off without it....Professor Tushnet’s arguments against the efficacy of judicial review are familiar and tellingeven if they are largely ignored when constitutional scholars are in high rhetorical flight....In the endI cannot bring myself to sign on to Professor Tushnet’s causethough I can encourage everyone to engage his arguments. —Jurist: The Law Professors' Network
Library Journal
Tushnet, a professor of constitutional law at Georgetown and the author of several books on the subject, discusses new avenues of contemporary legal thought on the U.S. Constitution and judicial supremacy. Arguing that "constitutional theory must make sense of how people deal with the Constitution away from the courts if it is to provide an accurate account of our constitutional practice," he interprets the Constitution in light of Declaration of Independence principles: "a thin Constitution" to arrive at a "populist Constitutional law." Tushnet rejects a theory of judicial supremacy and looks at alternative means for legislators and executives to make judgments within a constitutional context. His ideas will challenge and inform academics, lawyers, and college students interested in the foundations of the American political system. This bold analysis for 21st-century constitutional interpretation is highly recommended.--Steven Puro, St. Louis Univ.
Booknews
Tushnet (constitutional law, Georgetown U. Law Center) makes a bold and compelling argument against judicial review as the primary means of constitutional reform, arguing that this tradition takes lawmaking out of the hands of the people and relinquishes it to the courts. Citing the McCarthy hearings as one prominent example of the failure of judicial review to enforce the Constitution, Tushnet advocates what he calls a "populist" approach to constitutional law: citizens and legislators taking responsibility for upholding liberty and justice, rather than leaving it up to the judiciary. Annotation c. Book News, Inc., Portland, OR (booknew.com)
Richard A. Posner
The book is a compilation of previously published and heavily revised articles, which is not the best format for presenting a single grand thesis; but it is still a va luable addition to the swelling chorus of "judicial review" skeptics....The great value of the work of the skeptics is not that they have "proved" that judicial review is a bad thing on balance, or that their writings will inspire a movement to amend the Constitution to abrogate the power. It is that they have undermined the complacent belief that judicial review is unequivocally a good thing.
The New Republic
Edward V. Heck
No doubt the book will appeal to those actively engaged in the ongoing debates about constitutional theory pursued in the works of political theorists and law professors copiously cited in Tushnet's nine-page bibliography.
The Law and Politics Book Review
James O'Fallon
...[A] closely, even densely, argued case for the proposition that we don’t get much good from judicial review, and we might be somewhat better off without it....Professor Tushnet’s arguments against the efficacy of judicial review are familiar and telling, even if they are largely ignored when constitutional scholars are in high rhetorical flight....In the end, I cannot bring myself to sign on to Professor Tushnet’s cause, though I can encourage everyone to engage his arguments.
Jurist: The Law Professors' Network
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Product Details

  • ISBN-13: 9780691070353
  • Publisher: Princeton University Press
  • Publication date: 7/24/2000
  • Pages: 254
  • Product dimensions: 6.06 (w) x 9.12 (h) x 0.62 (d)

Table of Contents

Preface
Prologue 3
Ch. 1 Against Judicial Supremacy 6
Ch. 2 Doing Constitutional Law Outside the Courts 33
Ch. 3 The Question of Capability 54
Ch. 4 The Constitutional Law of Religion Outside the Courts 72
Ch. 5 The Incentive-Compatible Constitution 95
Ch. 6 Assessing Judicial Review 129
Ch. 7 Against Judicial Review 154
Ch. 8 Populist Constitutional Law 177
Notes 195
Bibliography 227
Index 237
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