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

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.