« My Review of Martin Flaherty's "Restoring the Global Judiciary"
Michael Ramsey
| Main | Eric Segall on Legal Realism in Constitutional Law
Michael Ramsey »

08/29/2020

John McGinnis Reviews Mark Tushnet's "Taking Back the Constitution"
Michael Ramsey

At Law & Liberty, John McGinnis: Mark Tushnet’s Anti-Constitutionalism (reviewing [harshly] Mark Tushnet,  Taking Back the Constitution: Activist Judges and the New Age of American Law (Yale Univ. Press 2020)).  From the introduction: 

Mark Tushnet, a Harvard law professor, is the nation’s most prominent leftist legal scholar. He was one of the founders of critical legal studies, which understands legal reasoning and doctrine as a mask for political preferences. Tushnet has said that, as a judge, he would decide cases to advance the cause of socialism. When he was confident that Hillary Clinton would win the presidency and that that there would be a fifth Democrat-appointed justice on the Supreme Court, he wrote an attention-grabbing blog post, “Abandoning Defensive Crouch Liberal Constitutionalism” in which, among many other striking claims, he said, “remember that doctrine is a way to empower our allies and weaken theirs.” He also expostulated about Anthony Kennedy in a manner that cannot be published at a family-friendly site.

Thus, it does not come as a shock that his new book Taking Back the Constitution: Activist Judges and the New Age of American Law offers ideas for progressives to ditch as much doctrine, convention, and even text as they can get away with to achieve their progressive goals. Nor is it astonishing that originalism is a primary target, because originalism is the antithesis of critical legal studies, asserting as it does that the Constitution’s meaning can be established by legal methods and is binding on us, whatever our political preferences.

But it does come as a bit of a surprise that Tushnet’s arguments against originalism are so weak and sometimes depend on assertions about scholarship and Court opinions that are either ill-informed or plainly wrong. Even outside of his attack on originalism, Tushnet has a tin ear for law, seemingly unable to distinguish between arguments that a conservative or progressive court could conceivably find plausible and those that would be outlandish to any judge that can be imagined. Finally, his praise of what he calls “popular constitutionalism” demolishes the distinction between constitutionalism and ordinary politics. In Tushnet’s world, constitutionalism is just a fancy name for arguments to put or maintain one’s preferred regime in power.

And here is Amazon's book description of Professor Tushnet's book:

How the Supreme Court’s move to the right has distorted both logic and the Constitution

What Supreme Court justices do is far more than just “calling balls and strikes.” The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore to the other branches of government a role in deciding constitutional questions.