Thursday, December 17, 2015

Breaking News: Political Parties Try to Enact Policies that Strengthen Their Coalition and Weaken Their Opponents'

Mark Tushnet

Sorry for the snark, but that's the burden of about 40 pages of an 80 page article in the Yale Law Journal. (Whatever happened to the initiative to slim down law review articles?) The other 40 pages are devoted to arguing that entrenching your party by adopting substantive policies isn't all that different, practically or normatively, from entrenching via constitutional amendment,via statutes that purport to entrench themselves against repeal, or via expressly or obviously partisan policies like gerrymandering or selective voter suppression. The burden of those pages is that (some) people seem to think that entrenchment via constitutional amendment is normatively OK but that the other kinds of entrenchment aren't.

Another (substantive) takeaway is that sometimes entrenchment is good, sometimes it's bad. Or: Entrenching good things is good, entrenching bad things is bad. At other times one might have said that the term "entrenchment" doesn't describe anything of normative interest but -- shudder -- is a reification. That way, though, lies critical legal studies.

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