Taking the Constitution Away from the Courts

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This text challenges hallowed American traditions of juidicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. By examining a wide range of situations involving constitutional rights, the author urges the reader to to take responsibility for protecting their liberty. The book puts forward the idea of the creation of a constitutional law in which judicial declarations deserve no special consideration, citing the McCarthy incident in the 1950s as a prime example of how the judicial branch failed to enforce the will of the people.

Taking the Constitution Away from the Courts Review

We know the stereotype: liberals love the courts, conservatives attack them as undemocratic. Like most stereotypes, it is based on truth, but out of date. Nowadays, many on the right are calling for more judicial action -- e.g., striking down laws passed by Congress as outside the Commerce power, or violative of the Second Amendment. And many on the left are now advocates of judicial restraint. One may explain this away by noting that the switch is suspiciously correlated with a switch in the ideological attitude of the courts. But Mark Tushnet's book can't be explained away on these grounds. As Tushnet notes: "we have to remember that we buy judicial review wholesale: In getting the decisions we like, we run the risk of decisions we despise." (p. 141). More importantly, Tushnet notes that winning in court doesn't mean as much as you might think. Roe v. Wade energized the antiabortion movement and took the wind out of the sails of prochoice forces; a series of legislative victories producing the same result may have been less divisive, and more final.Tushnet's solution is given away by the title: taking the constitution away from the courts, and returning constitutional interpretation to the people. He also argues -- rightly, I think -- for paying far more attention to the principles set out in the Declaration of Independence. Early commentators, like Justice Joseph Story, saw the Declaration as the animator of the Constitution. More recently the Declaration has been largely ignored -- perhaps by those who fear its radical implications. Tushnet is right to suggest reversing this trend.I am rather dubious about whether Tushnet's populist enterprise will succeed, but his book raises some excellent questions. It is certainly the case that constitutional debate over the past several decades has been too elitist, too narrow, and too influenced by academic fashion and interest group politics. In calling attention to this fact, Tushnet has produced an interesting, provocative book that should be read by anyone interested in the future of constitutional debate and decision. Help other customers find the most helpful reviews Was this review helpful to you? Yes No Report abuse | PermalinkComment Comment

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