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Boston University School of Law

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Mark Tushnet

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The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming Nov 2006

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …


The Constitution Outside The Courts, James E. Fleming Nov 2000

The Constitution Outside The Courts, James E. Fleming

Faculty Scholarship

In this Book Review, Professor Fleming examines Professor Tushnet's arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet's arguments that the “thick Constitution”--in particular, its commitments to federalism, states' rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how …


Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons Jan 1989

Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons

Faculty Scholarship

Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.