TAKING THE CONSTITUTION AWAY FROM THE COURTS by Mark Tushnet. Princeton: Princeton University Press, 1999. 243pp.
Reviewed by Edward V. Heck, San Diego State University.
In MARBURY v. MADISON, Chief Justice John Marshall built his argument for judicial review on the foundation of two important myths. First, Marshall argued, the Constitution was a "superior paramount law" because "the people" had exercised their original right to establish the fundamental principles by which they were to be governed. Second, the courts were to resolve disputes about the meaning of the Constitution because, "it is emphatically the province and duty of the judicial department to say what the law is."
Embracing the first of these myths enthusiastically while rejecting the second, Mark Tushnet argues that it may be time to "take the Constitution away from the Courts" and return it to the people. "Elitist constitutional law" based on Supreme Court decisions would give way to a populist constitutional law" which "gains its content from discussions among the people in ordinary political forums" (p. xi). At the core of Tushnet’s vision are two themes articulated by Abraham Lincoln — 1) the Constitution is essentially a vindication of the principles of the Declaration of Independence and 2) Court decisions are binding between the litigants but do not establish political rules which must be accepted by the people and their elected representatives. Move over, Marshall, and make room for Lincoln as the seminal constitutional thinker.
Populist constitutional law, then, is primarily about debating and implementing the Declaration’s principles, specifically "the principle that all people were created equal [and] the principle that all had inalienable rights" (p. 11). In Tushnet’s view, popular discussion of the Constitution will focus on what he describes as the "thin Constitution," which embraces the "fundamental guarantees of equality, freedom of expression, and liberty" (p. 11). For guiding principles, the people and their political leaders should look to the Declaration and "the parts of the Constitution’s preamble that resonate with the Declaration" (p. 12). Thus, populist constitutional law strives to "establish Justice, . . . promote the general Welfare, and secure the Blessings of Liberty, . . ." but not to "form a more perfect Union." The organizational and procedural provisions of the "thick Constitution," including not only specific rules such as the minimum age requirement for the President but also such principles as federalism and checks and balances, do not fire the popular imagination and quickly disappear from Tushnet’s constitutional vision.
After establishing this basic framework, Tushnet devotes Chapters 2-5 to an extended argument designed to demonstrate the viability of taking the Constitution away from the courts and relying on the people and their representatives to act in accordance with the principles of the "thin Constitution." For the most part the arguments are abstract and the style is what I would label a "Socratic monologue," with the law professor ultimately concluding that he has established his position and answered all the relevant objections. Reading these chapters during the baseball season, I couldn’t escape an analogy to the San Diego Padres’ offense — slow and lacking in power.
Much more interesting and in my view central to the argument is Tushnet’s assessment and critique of judicial review in Chapters 6 and 7. Here the argument is carefully developed, balanced, and rooted in a concrete awareness of what the Supreme Court has actually done. Demonstrating his conscious, if reluctant, realization that the Supreme Court is a political institution, Tushnet not only cites Dahl and discusses the proposition that the Supreme Court follows the election returns (pp. 134-135), but also devotes a footnote to Segal and Spaeth and the attitudinal model of Supreme Court behavior (p. 148, n. 44). The campaign finance and affirmative action decisions of the Burger and Rehnquist Courts provide the most damaging illustrations of what is wrong with judicial review. Given the Court’s performance in these and other cases, it may appear that the voters and those they elect to office will do as good a job as nine unelected lawyers in determining the meaning of the "thin Constitution."
Assuming — as I am inclined to do — that Tushnet has correctly identified the central problems of judicial review, the question of remedy remains. Taking the Constitution away from the courts may not be the solution. After all, the segregation statutes of the 19th Century were originally the work of southern legislatures, not the Supreme Court. The passage of California’s Proposition 209 banning discrimination or "preferences" based on race or sex by agencies of state and local government suggests that a clear majority of the voters in the nation’s most populous state agree with the five-member majority of the Supreme Court that affirmative action should be banned. And while it is true that the Court validated apartheid in PLESSY v. FERGUSON, a later court was able to correct that error in BROWN v. BOARD OF EDUCATION. Rather than "taking the Constitution away from the courts," perhaps liberals and progressives should pursue the alternative strategy of working for the appointment of justices who will rethink the application of strict scrutiny when litigants representing powerful social and political forces challenge the constitutionality of campaign finance reform and affirmative action legislation.
Judicial review is a messy, uncertain, and very political process that makes many law professors uncomfortable. But it also provides a second look at the actions of the people and their representatives. At a minimum judicial review can be justified as a means of reinforcing democracy by protecting the right to criticize government and vindicating the claims of politically-powerless minorities. More broadly, it provides a mechanism for enforcing not only the rights of the "thin Constitution" but also the principles of federalism and checks and balances that are part of the constitutional structure. To be sure, judicial review does not cure all that ails the political system and rests on the two myths propounded in Marshall’s opinion in MARBURY. The myth that Tushnet now would reject, the proposition that the task of interpreting the Constitution is inherently an element of "judicial power," has survived because it is consistent with the overall structure of a Constitution that both grants power to government and limits power. In the end, I find Tushnet’s argument for taking the Constitution away from the courts in the 1990's no more persuasive than Justice Frankfurter’s argument for upholding compulsory flag salute laws in the 1940's.
So, is this an important book for political scientists? Certainly Tushnet challenges us to think about a justification for judicial review that goes beyond the "warm and fuzzy feelings" (p. 129) that many of our students have for Court decisions that promote values such as reproductive freedom or equality before the law. No doubt the book will appeal to those actively engaged in the ongoing debates about constitutional theory pursued in the works of political theorists and law professors copiously cited in Tushnet’s nine-page bibliography. For those of us whose primary focus is on what courts do with what political effects, this book offers much less than the author's previous works.
Indeed, I would rank Tushnet’s two volumes assessing the career of Thurgood Marshall as advocate and judge at
the very top of the list of "books by law professors that every political scientist in the public law field
should read." By contrast, TAKING THE CONSTITUTION AWAY FROM THE COURTS simply lacks the broad significance
and widespread appeal of MAKING CIVIL RIGHTS LAW (1994) and MAKING CONSTITUTIONAL LAW (1997).