Quelling Jurists' Imprudence
TAKING THE CONSTITUTION AWAY FROM THE COURTS
Princeton University Press, 1999 xii + 242 pgs.
Like most readers of The Mises Review, Professor Tushnet is fed up with the Supreme Court. I
doubt, though, that his complaint against the Court will have much resonance with most of my
Mr. Tushnet thinks the Court is insufficiently leftist. The Court has, in recent years, limited
affirmative action programs and declined to consider welfare benefits as rights. What is to be
Our author responds by throwing into question the supremacy of the Court as an interpreter of
our basic law. Why need those who differ with the Court's interpretations accede to them?
Indeed, why grant the Court at all the power to declare laws unconstitutional?
It is here that the main value of the book resides. In general, his arguments do not depend on his
leftist political views. Those of us who think of the Court as a major tool of the left can take over
much of what he says: "My argument takes as its audience liberal supporters of judicial review,
largely because they have been the most prominent defenders of judicial review in recent
decades. The conclusion I offer...is equally applicable to conservative defenders-or critics-of
judicial review" (p. 215).
Suppose that you are an official in California faced with enforcing Proposition 187. This, in part,
denied free public education to children of illegal immigrants. "A federal court promptly held
this part of Proposition 187 to be unconstitutional and barred state officials from enforcing it" (p.
6). (The federal court applied a Supreme Court precedent.)
Suppose further that you disagree with the court's ruling: you think that Proposition 187 is
constitutional. (Mr. Tushnet does not add, as he should, that you are right.) Should you obey the
To some, the answer is obvious: the Supreme Court (and lesser courts beneath it) say what the
law is, and that is that. Roma locuta, causa finita est. But why accept this view? Your oath is to
obey the Constitution, not the Supreme Court's interpretation of that document. The Court,
admittedly, has since Cooper v. Aaron (1957) said that its interpretation is final; but so what?
We cannot say that the Court's pronouncement by itself settles the matter without begging the
question. Only if the Court is final does its statement that it is preclude further discussion.
But does not rejection of the Court as final quickly lead to anarchy? A well-ordered society needs
to have fixed basic rules. Without them, collapse into chaos impends. Thus, our imagined official
should swallow his doubts and conform to the dictates of our judicial masters. Professor Larry
Alexander and Frederick Schauer have given the best recent defense of this position, but our
author has found a key flaw in their argument.
As he points out in his brilliant critique of them, from the claim that a stable system of basic law
is needed, it does not follow that the Supreme Court is the fit agency to provide this. "Alexander
and Schauer appear to argue that the rule of law entails their version of judicial supremacy.... But
their argument actually supports a rather different conclusion. What they establish is that the rule
of law entails that a legal system have a set of institutional arrangements sufficient to ensure the
[necessary] degree of stability" (p. 27).
The next question is apparent. What institutional arrangement is best fitted to bring about the
needed degree of order? Mr. Tushnet maintains, reasonably enough, that this question admits of
no a priori answer. Only an empirical investigation can help us. Our author finds little reason to
think that the Supreme Court, rather than Congress, is best suited for the job.
We must, Mr. Tushnet thinks, have a reasonably stable way of arriving at constitutional
interpretations. But he next takes a more questionable step. He denies that there is an objectively
correct way to understand what the constitution says. He is, I fear, a zealous member of the
Critical Legal Studies movement.
According to these legal deconstructionists, laws have no fixed meanings. All enactments are
subject to conflicting interpretations, these interpretations to yet further controversies, and so on
Our author's radical conclusion does not give what to my mind is the correct view a run for its
money. The Constitution, I should have thought, means what its drafters and ratifiers intended it
to mean; and, fortunately, the main constitutional disputes on this theory admit of ready
settlement. The original intent that this theory mandates usually can be discovered. Professor
Tushnet himself provides an excellent example to make my case. He refers to "something close
to a consensus" among legal academies that the Second Amendment "really does create an
individual right" to own guns (p. 30). If original intent can be fixed here, why not elsewhere?
Tushnet raises a problem for originalism, but his difficulty is not insurmountable. He rightly
claims that true originalists could not accept the court's decision in Brown v. Board of
Education. "One difficulty for adherents of original understanding is that the very Congress that
submitted the Fourteenth Amendment to the states for ratification also supported segregated
schools in the District of Columbia. Another is that the Amendment's opponents routinely said
that it would lead to integrated schools, and its supporters routinely replied that it would not" (p.
Our author, sensing victory, hurries to administer the coup de grâce. How can originalists accept
Bolling v. Sharpe, which outlawed segregation in the District of Columbia? "The only relevant
constitutional provision the Court could invoke was the due process clause of the Fifth
Amendment, adopted in 1791. And, whatever we can say about Congress in 1868, it is surely
impossible to believe that the framers of the Fifth Amendment, many of whom owned slaves,
thought that they were somehow making segregation by the national government impossible" (p.
But what, other than political correctness, is the problem? Why should the originalist want to
accept these two decisions? To reject them hardly commits one to approval of racial segregation.
Tushnet himself notes elsewhere, with apparent agreement, the view that the effects of the
Court's decision in Brown should not be overestimated.
To return to our author's successes, he has, I think, successfully shown that we do not need an
authoritative Supreme Court to obtain stability. But what role, if any, should the Court have in
constitutional interpretation? Mr. Tushnet's answer is surprising, given one of his contentions.
He maintains that, in the long run, the Court's decisions make little difference; as one might
expect, he trots out Mr. Dooley's "The Supreme Court follows the election returns" (p. 134). One
would have thought he would argue that it does not matter what role in interpretation the Court is
He sees matters otherwise. Even if the Court does not in practice have much effect, nevertheless
eliminating judicial review holds much promise. It will promote a "populist jurisprudence" in
which the people interpret the constitution for themselves.
Mr. Tushnet's populism strikes me as more than a little odd. He cleaves the Constitution in two.
The "thin constitution" carries out the ideals of the Declaration of Independence; the First
Amendment is a paradigm instance of what this part of the document includes. The "thick
constitution" includes procedural matters, e.g., the rule that senators serve six-year terms. Only
the thin constitution binds us, on the strange ground that people would probably not risk their
lives for the details of the thick constitution. Probably not; but why does this fact cancel the legal
force of these provisions? Also, why does Tushnet think that the equality clause of the
Declaration of Independence, in Jefferson's interpretation, refers "only to men and owned slaves"
This book contains many useful and provocative ideas, but I suppose that in a work written by a
Marxist and Critical Legal Studies partisan, one must expect at least some wackiness.