"Two Paths, One Result": A (Heavily Qualified) Defense of Consensus Constitutionalism

DSpace/Manakin Repository

"Two Paths, One Result": A (Heavily Qualified) Defense of Consensus Constitutionalism

Show simple item record

dc.contributor.author Tushnet, Mark V.
dc.date.accessioned 2012-10-02T18:37:31Z
dc.date.issued 2011
dc.identifier.citation Mark Tushnet, "Two Paths, One Result": A (Heavily Qualified) Defense of Consensus Constitutionalism, 89 Tex. L. Rev. 157 (2011). en_US
dc.identifier.issn 00404411 en_US
dc.identifier.uri http://nrs.harvard.edu/urn-3:HUL.InstRepos:9667250
dc.description.abstract Professor Tushnet responds to Professor Driver's skepticism toward consensus constitutionalism, or the view that the Supreme Court "inscribes into constitutional law the views of an undifferentiated American people."  Tushnet argues that consensus constitutionalism is more defensible than Professor Driver's argument allows, based on a "more generous" reading of their texts. Tushnet reads the consensus constitutionalists as arguing that the Court's decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored.  Driver, however, argues that no consensus has ever existed.  In response, Tushnet sketches the "same results claim," by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or  (2) the Legislative and Executive Branches, produce the result.  Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists. Tushnet also responds to Driver's view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates.  He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous.  As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues.  In any event, political leaders and judges are not required to find or occupy this normative field before making a decision. Tushnet concludes by noting Driver's limited reading of consensus constitutionalism and agreeing with Driver's criticism of the overstatement of consensus in constitutional debates and Driver's argument that any consensus does not foreclose normative arguments in court. en_US
dc.language.iso en_US en_US
dc.publisher Texas Law Review Association en_US
dc.relation.isversionof http://texaslrev.com/seealso/vol/89/responses/tushnet en_US
dash.license OAP
dc.title "Two Paths, One Result": A (Heavily Qualified) Defense of Consensus Constitutionalism en_US
dc.type Journal Article en_US
dc.relation.journal Texas Law Review en_US
dash.depositing.author Tushnet, Mark V.
dc.date.available 2012-10-02T18:37:31Z

Files in this item

Files Size Format View xmlui.dri2xhtml.METS-1.0.item-files-description
Tushnet_TwoPathsOneResult.pdf 181.6Kb PDF View/Open Two Paths

This item appears in the following Collection(s)

Show simple item record

 
 

Search DASH


Advanced Search
 
 

Submitters