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.
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