Person: Tushnet, Mark
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Tushnet
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Tushnet, Mark
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Publication Book Review(Massachusetts Institute of Technology Press (MIT Press), 2007) Tushnet, MarkPublication Before the Next Attack(The Academy of Political Science, 2007) Tushnet, MarkPublication Permissible Gun Regulations After Heller: Speculations About Method and Outcome(University of California, 2009) Tushnet, MarkThis Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard of review or rational basis with bite, and will rarely find unconstitutional an existing regulation of guns, short of what in practice amounts to a complete ban. It speculates as well that the Supreme Court will allow most Second Amendment issues to percolate in the lower courts, and that the Court that takes up another Second Amendment issue may well have a different composition, one less sympathetic than the present Court to gun rights. It concludes that Heller’s fate may be similar to the fate of the Rehnquist Court’s so-called Federalism Revolution—an important decision with relatively little enduring impact.Publication A Clerk’s Eye View of Keyes v. School District No. 1(2013) Tushnet, MarkPublication Constitution-Making: An Introduction(The University of Texas, 2013) Tushnet, MarkAlexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere. The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by. Yet, we can identify some issues about constitutional design that arise repeatedly. Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making. Part I asks: Why make a constitution? Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process. Part IV takes up questions about the scope and comprehensiveness of the constitution. The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.Publication Authoritarian Constitutionalism(Cornell Law Review, 2015) Tushnet, MarkLegal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively. The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished. I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair. The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.Publication Introduction(Duke University School of Law, 1990) Tushnet, MarkThis collection of articles and essays on the frontiers of legal thought shows the ways in which some aspects of legal thought have developed in the past decade. Building on the insights of the American Legal Realists but rejecting many of their political positions and policy prescriptions as well as their fondness for the "scientifization" of law, scholars associated with critical legal studies began a project that continues to evolve - a project which has been transformed by its interaction with the work of minority and feminist scholars. Many of the themes in this new, "critical/feminist/minority/post-modernist" scholarship are found in the articles and essays here.Publication Civil Rights and Social Rights: The Future of the Reconstruction Amendments(Loyola Law School; 1999, 1992) Tushnet, MarkPublication Alarmism Versus Moderation in Responding to the Rehnquist Court(Indiana University School of Law, 2003) Tushnet, MarkSymposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.Publication The Hughes Court and Radical Political Dissent: The Case of Dirk De Jonge and Angelo Herndon(ScholarWorks@Georgia State University, 2011) Tushnet, Mark