Taking the Constitution Away from the Courts.

• Author: Prakash, Saikrishna B.
• Position: Review

Taking the Constitution Away from the Courts. By Mark Tushnet.(*) Princeton: Princeton University Press, 1999. Pp. 242. $29.95.

The courts occupy a rather privileged place in the hearts of most Americans, almost on the level of baseball, apple pie, and Mom. Whether it's desegregation, Miranda warnings, or birth control, the judiciary has played a seminal role in safeguarding our rights and liberties. Of all government officials, judges in particular are well-respected and largely viewed as models of fidelity and integrity. They often seem like the last bulwark standing athwart the hordes of unprincipled pols who would betray the Constitution at the first sign of a campaign contribution. To be sure, there are a few folks like Alcee Hastings on the bench--those who are corrupt or have committed some petty crime. But these jurists eventually get their just deserts and join Congress.

In Taking the Constitution Away from the Courts,(1) Professor Mark Tushnet takes on America's favorite branch. Perhaps the brightest star in a movement that seems to have fizzled out,(2) Tushnet is particularly well-suited to play the lone child who bares to the bewildered populace the truth about their judicial emperors. After all, the Left has never been reluctant to speak (or shout) the troth to power. Tushnet requests that we reorient ourselves toward a "populist constitutional law," in which the people and their elected representatives vindicate the Constitution and the courts have absolutely no enforcement role. To relegate the judiciary to the status of constitutional ciphers, Tushnet advocates a constitutional amendment that would provide that "[t]he provisions of this Constitution shall not be cognizable by any court."(3)

Tushnet's project is not limited to knocking the courts from their lofty perch by means of the ultimate jurisdictional strip. He also urges Americans to forsake their "thick" Constitution and embrace a "thin" Constitution. The thick Constitution consists of specific constitutional provisions like the Emoluments Clause,(4) the First Amendment, and the Equal Protection Clause. Though familiar, the thick Constitution does not command our allegiance, claims Tushnet. Rather, we pledge allegiance to the principles underlying such provisions.

Those fundamentals are found in the thin Constitution: the Constitution's Preamble(5) and the Declaration of Independence. The Preamble reflects our shared and abiding commitment to principles such as justice, the general welfare, and liberty. Even more than the Preamble, the Declaration's principles of equality and unalienable rights inspire public reverence and loyalty. Because the thick Constitution supposedly exists to fulfill the Declaration's project, Tushnet argues that the Declaration (along with the Preamble) ought to occupy center stage in constitutional interpretation.

Tushnet's book is refreshing.(6) Though law professors make a comfortable living criticizing the courts, their complaints are usually quite tame and narrow: "Perhaps the judiciary ought to have supported its creation of some right with a reference to Rawls or the Universal Declaration of Human Rights." Notwithstanding such important criticisms, however, professors generally admire the courts.(7) By contrast, Tushnet moves beyond the typical academic tinkering. He invites us to step back and survey the big picture. Would our world be very different without judicial review of constitutional claims? Tushnet says no, and concludes that we should abandon judicial review. If we eliminate judicial review, how should we fulfill our commitment to the Constitution? Tushnet points to his thin Constitution as a guide.

When you swing for the fences, you often strike out. Judged by whether Tushnet will persuade people to subscribe to his two theories, the book disappoints. Most will neither welcome the demise of judicial review nor champion his thin Constitution. Judged by more realistic standards (for example, does the book provoke thought and the reappraisal of settled opinion?), the book appears in a better light. In the end, however, I suspect that many will find his theories deficient and even problematic.

With respect to his thin constitutional project, Tushnet would replace our already compact and vague Constitution with something even more nebulous and unhelpful. We may be attached to justice, the general welfare, and liberty, but that does not mean that we share many meaningful commitments. A KKK member might claim that justice entails the eradication of all racial minorities. A Communist Party cadre would find the general welfare served by the abolition of private property. As should be obvious, Tushnet's thin Constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing. Such an anorexic, yet cavernous, document would neither enjoy any obvious advantages nor attract any genuine allegiance.

His populist constitutional project fares much better but still falls short. Tushnet does not carry his burden of persuasion when he argues that the courts should play absolutely no role in enforcing the Constitution. His strongest argument rests on his claim that the courts are largely inconsequential because they usually follow the election returns.(8) But if the judiciary does not really matter, he must explain why we should bother abolishing judicial review. Indeed, if the judiciary follows the election returns, perhaps we already have an unintended populist constitutional law regime. Paradoxically, his arguments might dispel the misgivings that certain quarters have about judicial review.

Notwithstanding all this, Tushnet's radicalism has highlighted a fatal flaw in a system purportedly based on the principle that the people rule: America has an elitist constitutional law in which only the judgments, opinions, and perspectives of the courts matter. While we could make our constitutional law more responsive to the people by eliminating judicial review, we would thereby eliminate the benefits that flow from having an institution that specializes in interpretation and from having an independent check on the other branches. Perhaps the better means of ushering in a populist constitutional law would be to abolish life tenure for federal judges.(9) If we eliminated life tenure, judges would no longer seem infallible and we would no longer place them on a pedestal. Nor would they have complete freedom to pursue their own agendas. Instead, we could hold them accountable for their biases, failings, and errors. Most importantly, eliminating life tenure would serve as a concrete sign that judges, like all public servants, serve at the pleasure of the people.

1. TUSHNET ON THE COURTS AND THE CONSTITUTION

   Tushnet's tome has two objectives. First, he invites us to abandon our slavish commitment to an "elitist constitutional law" that depends upon the courts for the Constitution's vindication. In place of the current regime, Tushnet would substitute a "populist constitutional law" in which the people interpret (or construct) the Constitution themselves. Second, he argues that when the people engage in populist constitutional law, they should focus on the "thin" Constitution rather than the "thick" one. The thick Constitution is the one most professors of constitutional law quibble about: the First Amendment, Article III, the Necessary and Proper Clause. In contrast, the thin Constitution--consisting of the Constitution's Preamble and the Declaration of Independence--commands the people's attachment.

   1. Tushnet's Takes on the Judiciary

      Chapters six and seven form the heart of Tushnet's book. Chapter six concludes that judicial review has little effect on the real world. Chapter seven explains why Tushnet supports an amendment banning judicial review.

      In chapter six, "Assessing Judicial Review," Tushnet attempts to debunk outdated liberal conceptions about the courts. While the judiciary may have been engines for liberalism in the 1960s, they now primarily espouse conservative or libertarian principles. For instance, free speech law has abandoned its tilt to the left and now leans to the right.(10) Free speech cases were once replete with principled heroes like Mary Beth Tinker and Barbara Elfbrandt.(11) Now the leading cases defend the right of businesses to advertise and the right of the moneyed class to donate funds to conservative politicians.(12) Likewise, with respect to affirmative action and school desegregation, liberals have lost hard-fought gains because of a judiciary that seems bent on eradicating race-conscious programs.(13) More generally, his assessment of the judiciary boils down to a remarkably simple calculus: "At the moment, progressives and liberals are losing more from judicial review than they are getting."(14)

      The judiciary has changed its stripes over time because it has always reflected "a sustained national political majority."(15) From President Nixon to President Clinton, there has been a general drift rightward in the national center of political gravity.(16) With appointments to the bench dominated by conservatives and moderates, the courts have naturally drifted to the right as well. Because the courts follow the election returns,(17) the Left can hardly expect to rack up ideological victories without first winning the electorate's hearts and minds.

      In describing the judiciary's propensity to follow election returns, Tushnet adopts a metaphor from electrical engineering to illustrate the judiciary's rather marginal constitutional role. "[J]udicial review basically amounts to noise around zero: It offers essentially random [and minor] changes, sometimes good and sometimes bad, to what the political system produces."(18) In a word, judicial review is a wash.

      In chapter seven, "Against Judicial Review," a decidedly radical proposition follows from this rather timid conclusion: Amend the U.S. Constitution to provide that "[t]he...