Taking the Constitution away from the courts / Mark Tushnet.

Format:

Book

Author/Creator:

Tushnet, Mark, 1945-

Language:

English

Subjects (All):

Constitutional law--United States.

Constitutional law.

Judicial review--United States.

Judicial review.

Legislative power--United States.

Legislative power.

Politics, Practical--United States.

Politics, Practical.

Physical Description:

1 online resource (255 p.)

Edition:

Core Textbook

Place of Publication:

Princeton, N.J. : Princeton University Press, c1999.

Language Note:

English

Summary:

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 1950's 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.

Contents:

Front matter

Contents

Preface

Prologue

CHAPTER ONE. Against Judicial Supremacy

CHAPTER TWO. Doing Constitutional Law Outside the Courts

CHAPTER THREE. The Question of Capability

CHAPTER FOUR. The Constitutional Law of Religion Outside the Courts

CHAPTER FIVE. The Incentive-Compatible Constitution

CHAPTER SIX. Assessing Judicial Review

CHAPTER SEVEN. Against Judicial Review

CHAPTER EIGHT. Populist Constitutional Law

Notes

Bibliography

Index

Notes:

Description based upon print version of record.

Includes bibliographical references (p. [227]-235) and index.

ISBN:

9786612457838

9781400822973

1400822971

9781282457836

1282457837

9781400813704

1400813700

OCLC:

700687011