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Taking the Constitution away from the courts

Author: Mark V Tushnet
Publisher: Princeton, N.J. : Princeton University Press, ©1999.
Edition/Format:   Book : EnglishView all editions and formats
Database:WorldCat
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#Includes bibliographical references and index.

Annotation

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 1950s 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.

Annotation

Mark Tushnet challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. 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". His clarion call for a new kind of constitutional law is 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.  Read more...

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Material Type: Internet resource
Document Type: Book, Internet Resource
All Authors / Contributors: Mark V Tushnet
ISBN: 0691004153 9780691004150 0691070350 9780691070353
OCLC Number: 39262005
Description: xii, 242 p. ; 24 cm.
Contents: Preface Ch. 1Against Judicial Supremacy Ch. 2Doing Constitutional Law Outside the Courts Ch. 3The Question of Capability Ch. 4The Constitutional Law of Religion Outside the Courts Ch. 5The Incentive-Compatible Constitution Ch. 6Assessing Judicial Review Ch. 7Against Judicial Review Ch. 8Populist Constitutional Law Notes Bibliography Index
Responsibility: Mark Tushnet.
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Abstract:

Challenges hallowed American traditions of judicial review and judicial supremacy, which allow US judges to invalidate "unconstitutional" governmental actions. This book encourages us to take  Read more...

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"A valuable addition to the swelling chorus of 'judicial review' skeptics... a book-length defense of this interesting heresy."--Richard Posner, The New Republic "Tushnet ... makes a bold and Read more...

 
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