Taking the Constitution Away from the Courts

Paperback (Print)
Used and New from Other Sellers
Used and New from Other Sellers
from $22.98
Usually ships in 1-2 business days
(Save 42%)
Other sellers (Paperback)
  • All (10) from $22.98   
  • New (5) from $22.98   
  • Used (5) from $0.00   

Overview

Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States." The Constitution belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others.

Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.

Read More Show Less

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
Read More Show Less

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
Read More Show Less

Customer Reviews

Be the first to write a review
( 0 )
Rating Distribution

5 Star

(0)

4 Star

(0)

3 Star

(0)

2 Star

(0)

1 Star

(0)

Your Rating:

Your Name: Create a Pen Name or

Barnes & Noble.com Review Rules

Our reader reviews allow you to share your comments on titles you liked, or didn't, with others. By submitting an online review, you are representing to Barnes & Noble.com that all information contained in your review is original and accurate in all respects, and that the submission of such content by you and the posting of such content by Barnes & Noble.com does not and will not violate the rights of any third party. Please follow the rules below to help ensure that your review can be posted.

Reviews by Our Customers Under the Age of 13

We highly value and respect everyone's opinion concerning the titles we offer. However, we cannot allow persons under the age of 13 to have accounts at BN.com or to post customer reviews. Please see our Terms of Use for more details.

What to exclude from your review:

Please do not write about reviews, commentary, or information posted on the product page. If you see any errors in the information on the product page, please send us an email.

Reviews should not contain any of the following:

  • - HTML tags, profanity, obscenities, vulgarities, or comments that defame anyone
  • - Time-sensitive information such as tour dates, signings, lectures, etc.
  • - Single-word reviews. Other people will read your review to discover why you liked or didn't like the title. Be descriptive.
  • - Comments focusing on the author or that may ruin the ending for others
  • - Phone numbers, addresses, URLs
  • - Pricing and availability information or alternative ordering information
  • - Advertisements or commercial solicitation

Reminder:

  • - By submitting a review, you grant to Barnes & Noble.com and its sublicensees the royalty-free, perpetual, irrevocable right and license to use the review in accordance with the Barnes & Noble.com Terms of Use.
  • - Barnes & Noble.com reserves the right not to post any review -- particularly those that do not follow the terms and conditions of these Rules. Barnes & Noble.com also reserves the right to remove any review at any time without notice.
  • - See Terms of Use for other conditions and disclaimers.
Search for Products You'd Like to Recommend

Recommend other products that relate to your review. Just search for them below and share!

Create a Pen Name

Your Pen Name is your unique identity on BN.com. It will appear on the reviews you write and other website activities. Your Pen Name cannot be edited, changed or deleted once submitted.

 
Your Pen Name can be any combination of alphanumeric characters (plus - and _), and must be at least two characters long.

Continue Anonymously

    If you find inappropriate content, please report it to Barnes & Noble
    Why is this product inappropriate?
    Comments (optional)