Taking the Constitution Away from the Courts.

• Author: Chemerinsky, Erwin
• Position: Review

TAKING THE CONSTITUTION AWAY FROM THE COURTS. By Mark Tushnet. Princeton: Princeton University Press. 1999. Pp. xii, 242. 29.95.

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change.(1) Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate.(2)

In Taking the Constitution Away from the Courts, Mark Tushnet(3) approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He maintains that it produces relatively few benefits that could not be gained through the political process and that it actually has serious costs. He contends that without judicial review, a populist constitutional movement, with a vibrant public rhetoric of constitutionalism, would emerge (p. 154). Without constitutional judicial review, he posits, there will be more development of statutory rights and perhaps even a growth in welfare rights (p. 165).

Professor Tushnet thus argues, as his title suggests, that the Constitution should be taken away from the courts. Although he never precisely defines what this means, it is clear that he is calling for the end of constitutional judicial review. For example, at one point he suggests that the Supreme Court do this via a decision proclaiming that Marbury v. Madison(4) was a failed experiment and that judicial review end in 2003 (p. 154). Toward the end of the book, he describes Robert Bork's proposal to amend the Constitution by including a provision that permits Congress to overrule a Supreme Court decision by majority vote.(5) Springing from Bork's proposal, Tushnet argues that it would be preferable to go further and end judicial review altogether.

Tushnet's book is the logical culmination of two trends in liberal scholarship: the view that judicial review makes little positive difference and the strong disagreement with many decisions of the last quarter-century by the Burger and Rehnquist Courts. Tushnet invokes numerous examples of what he regards as undesirable rulings, including such outcomes of Supreme Court decisions invalidating affirmative action programs (pp. 139-40), advancing protection of states' rights and federalism (pp. 99-101), and limiting campaign finance reform and protecting corporate speech (p. 180).(6) If the Court does little good with its judicial review, but imposes significant harms, the conclusion becomes to eliminate judicial review. Ironically, the political left, as embodied in Tushnet, and the political right, as reflected in Bork, come together in an effort to end constitutional judicial review.

Although I have the greatest respect for Professor Tushnet and his enormous contributions to constitutional scholarship,(7) I strongly disagree with virtually every aspect of this book. In short, I believe that Tushnet underestimates the benefits of judicial review by selectively choosing examples where the political process might work in protecting rights and overestimates the gains from eliminating judicial review by hypothesizing an idealized populist constitutionalism. Put another way, Tushnet greatly minimizes the costs of ending judicial review, especially for those who have nowhere else to turn but to the courts for protection. He greatly exaggerates the benefits of eliminating judicial review by imagining a populist approach to the Constitution that he never develops or explains.

In Part I, I describe Tushnet's argument in some detail. Professor Tushnet's argument for ending judicial review is carefully developed and nuanced. Critiquing it first requires a detailed description.

In Part II, I respond to each step of Tushnet's argument. My focus is to identify the unsupported assumptions in his argument and to highlight the extent to which he generalizes from a few examples to reach broad conclusions about the lack of benefits and the harms of judicial review.

In Part III, I suggest that ultimately it is not possible to prove that Tushnet is wrong and that the country would be worse off without judicial review. Nor is it possible for him to prove the contrary. The idea of "better off" or "worse off" would require a calculus for determining the social good that is surely impossible to devise. Also, there is no way of calculating, over the past and future of American history, whether judicial review has produced and will produce more on the good or on the bad side of this ledger. Tushnet and his critics would agree that there have been some good decisions and some bad decisions, however good and bad are defined, and there is simply no way to know how to measure the good against the bad. There is also no way to know, or calculate, the harms and benefits that would result if judicial review was completely eliminated.

In the end, each side can make its arguments for and against judicial review, but neither side will ever be able to prove its case or persuade the other. Ultimately, it is a matter of intuition and faith as to whether the benefits of judicial review outweigh its costs. My intuition is completely different from Tushnet's and I greatly fear that Taking the Constitution Away from the Courts, and other scholarship like it, will have an effect that will lead to less active judicial review, resulting in real long-term harms for society and severe barriers for those who most desperately need protection from the courts.

1. TUSHNET'S ARGUMENT

   Tushnet's book lays out a well-developed argument in support of his conclusion that the Constitution should be taken away from the courts. There is an obvious danger in trying to summarize in a few pages a nuanced position developed over 200 pages, therefore, critiquing Tushnet's thesis requires setting it forth as carefully and neutrally as possible.

   I see five major steps to Tushnet's argument:

   1. There are two versions of the United States Constitution -- termed the "thick" Constitution and the "thin" Constitution.

      Tushnet introduces the distinction between the "thick" and "thin" Constitutions early in his book, and relies on it throughout (pp. 9-14). Indeed, Tushnet at the outset says: "Developing the argument against judicial supremacy and for a populist constitutional law requires me to introduce a distinction that will pervade this book -- between the thick Constitution and the thin Constitution" (p. 9).

      The thick Constitution seems to be the detailed provisions that particularly concern the structure of government. Tushnet writes, "[t]he thick Constitution contains a lot of detailed provisions describing how the government is to be organized" (p. 9). He identifies four characteristics of the provisions that constitute the thick Constitution: 1) as a whole they are important in constituting the government; 2) they are rarely the subject of judicial attention; 3) they often are interpreted by the Supreme Court in an undesirable manner; and 4) the public is generally indifferent to them.(8)

      In contrast, the thin Constitution contains the provisions that Tushnet regards as important. He writes: "We can think of the thin Constitution as its fundamental guarantees of equality, freedom of expression, and liberty" (p. 11). Professor Tushnet says that the thin Constitution is the collection of those ideals expressed in the Declaration of Independence and the Preamble to the Constitution (pp. 12-13). He argues that "the thin Constitution is indeed admirable in ways the thick Constitution is not. The thin Constitution protects rights that it has taken centuries of struggle for people to appreciate as truly fundamental" (p. 12).

   2. Judicial review to enforce the thick Constitution is unnecessary and undesirable.

      The distinction between the thick and the thin Constitution is useful for Tushnet because it allows him to dismiss the need for judicial review of much of the Constitution and then focus his argument on whether judicial review of the thin Constitution is desirable.

      This specific attention to the thin Constitution is possible because Tushnet argues that the provisions of the Constitution concerning the structure of government, such as federalism and separation of powers, are most likely to be followed because incentives for compliance exist.(9) He says, moreover, that courts often may err in interpreting these provisions, concluding that "[t]he constitutional values protected by those features of our Constitution would not be threatened by eliminating judicial review, particularly when we recognize that the courts might themselves mistakenly bar our representatives from adopting policies that are in fact consistent with the Constitution" (p. 123).

   3. Even as to the thin Constitution, judicial review often is unnecessary in providing protections that would not exist without it.

      Tushnet quotes extensively from James Madison that the structure of the Constitution itself is a significant protector of rights and preventer of tyranny (pp. 96-99). Tushnet also argues, at some length, that political pressures ensure that the government will not engage in significant violations of rights and disregard for the Constitution.(10) The core of the argument here is that the system is replete with incentives that encourage the government to act in a manner compatible with the Constitution.

      Tushnet thus concludes his chapter on "Assessing Judicial Review":

      Looking at judicial review over the course of U.S. history, we see the courts regularly being more or less in line with what the dominant national political coalition wants. Sometimes the courts deviate a bit, occasionally leading to better political outcomes and occasionally leading to worse ones. Adapting a...