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Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review Vs. Democracy In Comparative Perspective, Ran Hirschl
Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review Vs. Democracy In Comparative Perspective, Ran Hirschl
University of Richmond Law Review
For the [past] two centuries, the Constitution [has been] as central to American political culture as the New Testament was to medieval Europe. Just as Milton believed that "all wisdom is enfolded" within the pages of the Bible, all good Americans, from the National Rifle Association to the ACLU, have believed no less of this singular document.
Herbert Wechsler's Complaint And The Revival Of Grand Constitutional Theory, Keith E. Whittington
Herbert Wechsler's Complaint And The Revival Of Grand Constitutional Theory, Keith E. Whittington
University of Richmond Law Review
In 1988, Mark Tushnet noted the "revival of grand theory in constitutional law." Tushnet was somewhat unusual in specifying the object of contemporary constitutional theory so precisely. As he noted, what had been revived in the late twentieth century was an "interest in comprehensive normative theories of constitutional law." There was relatively little broad concern with constitutionalism in this revival, but quite a lot of concern with justifying and elaborating the preferred constitutional decisions of the Supreme Court in specific cases. Having "just published a book on constitutional theory that I unsurprisingly but undoubtedly erroneously regard as the last word …
Populist Natural Law (Reflections On Tushnet's "Thin Constitution"), Frank I. Michelman
Populist Natural Law (Reflections On Tushnet's "Thin Constitution"), Frank I. Michelman
University of Richmond Law Review
Constitutional review is the activity of measuring action choices of governments against a pre-existing set of publicly known or ascertainable, "higher" norms for the conduct of government. Anyone can do it: chief executives pondering vetoes or preparing state messages; legislators contemplating legal change; police chiefs reviewing department manuals; school board members debating curriculum guides; city planners routing highway expansions; citizens lobbying and pundits castigating any or all of the above; dinner partners talking politics; candidates running for office; voters turning out rascals. "American-style judicial review," let us say, is constitutional review conducted by a nonpopular, unelected, life-tenured body, whose decisions, …
Response: Politics, National Identify, And The Thin Constitution, Mark Tushnet
Response: Politics, National Identify, And The Thin Constitution, Mark Tushnet
University of Richmond Law Review
Any author would be pleased at having his or her work taken as seriously as mine has been by the contributors to this Symposium. As I wrote in Taking the ConstitutionAway from the Courts, my aim was not so much to place on the table a serious policy proposal-elimination of judicial review-but rather was to broaden a discussion about constitutionalism and judicial review that has been far too narrow. For a decade or more, constitutional theory and theorists have been overly concerned with questions about constitutional interpretation that are the legacy of controversies over the Warren Court's liberal activism. The …
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
University of Richmond Law Review
Mark Tushnet's Taking the ConstitutionAway from the Courts presents many aspects of the theme expressed in its title. I find most interesting the aspect concerning Congress's role in constitutional law. I like this aspect because I spent almost two decades working on constitutional law in Congress, principally as the House of Representatives' Solicitor and Deputy General Counsel representing the House of Representatives in countless constitutional controversies, and I have written a good deal about it. Tushnet provides us with an alternative perspective from which we can view Congress both during that time and since. Tushnet's book is kind enough to …
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
University of Richmond Law Review
A world without judicial review? Not that long ago-when the Left fought tooth and nail to defend the legacy ofthe Warren and (much of the) Burger Courts-the thought of taking the Constitution away from the courts would have been horrific. Witness, for example, Edward Kennedy's depiction of "Robert Bork's America!' as "a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens' doors in midnight raids." Bork's sin, of course, was embracing a kind of populist constitutional discourse, that is, the notion that the founders "banked …