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Popular Constitutionalism As Political Law, Mark V. Tushnet
Popular Constitutionalism As Political Law, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as "hard" law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their "pure" preferences, that is, those they would hold in the absence of law. My aim is …
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …
Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet
Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation's nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl's classic article identified one such relation. According to Dahl, "[e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance." What, though, if there is no "dominant" national political …
The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet
The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and …
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …