Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tushnet's Taking Back the Constitution
is one of his very best books (and he has written a fair number of them.) Among
the most remarkable things about the book is its ability to discuss complex
theoretical and legal issues in an easy, relaxed style. The closest analogy I
can think of is John Hart Ely's writing—and that is high praise indeed.
considerable agreement between Tushnet's arguments and the arguments I make in
my own book on the cycles of constitutional time, which is out next month. That
is not surprising. First, both Tushnet and I are working with the ideas of Yale
political scientist Steven Skowronek about the cycle of political regimes in the United States. Tushnet has long been interested in regime theories-- his
Harvard Foreword in 1999 offered a variation on these themes.
Tushnet and I think that the Reagan regime that has dominated American politics since the 1980s is on its last legs, and that the
country is about to embark on something new. What that new thing is, however,
is yet to be determined. That is why the book alternates between describing the
constitutional commitments of an extended, Trumpist regime, and the possibility
of a new progressive regime.
Tushnet and I also argue that how people feel about judicial review depends on
where they are in the rise and fall of regimes. At the close of the Reagan
regime, Republicans control the courts, so they are likely to be far more
enamored of judicial power than progressives. Tushnet wants
progressives to lean into this skepticism. He wants them to embrace an idea he
has long been associated with—popular constitutionalism. This was the subject
of Tushnet's 1999 book of a similar name, Taking the Constitution Away from the Courts.
Popular Constitutionalism 2.0
later, we can see a subtle shift in how Tushnet uses the term "popular
constitutionalism." In 1999, he offered a more direct frontal assault on
judicial review. Today, he opposes popular constitutionalism to judicial
supremacy. That leaves room for judicial review as long as it is not supreme.
Tushnet's 2020 version of popular constitutionalism is not about taking the
Constitution away from the courts so much as sidestepping them, or asserting
popular responsibility for the Constitution. In many ways, his vision of
popular constitutionalism has grown closer to Robert Post's and Reva Siegel's
democratic constitutionalism, which was developed in the same period as his
argues that popular constitutionalism can take many different forms, including
pressing for state constitutional interpretations, federal constitutional
amendment, a new federal constitutional convention called by the states, and
popular mobilization for adopting of new constitutional norms and practices by
legal officials. He embraces proposals for reshaping the courts like court
packing, which retain and even depend on judicial review. At one point he
argues that if the public likes judicial review and wants to keep it, that
decision is consistent with popular constitutionalism, too. It may seem as if
Tushnet is trying to have it both ways. But what he is actually doing is
calling on the public to take responsibility for the Constitution, and the kind
of constitutional norms they live under. This basic principle of taking
responsibility can be cashed out in many different ways, in many different
institutional forms. What Tushnet cares about is less which form of popular
constitutionalism wins out than that people make the effort, that they
"tak[e] back the Constitution."
At one point
in the book, Tushnet says he likes my idea that formerly "off the
wall" ideas may become "on the wall," but he doesn't understand
the metaphor I'm invoking, so he prefers the term "on the table." But
his own book shows what the underlying metaphor is! When it comes to popular
constitutionalism, Tushnet is willing to throw things against the wall and see
what sticks to it. Things that stick (because of social mobilization and social
influence) are "on the wall." In fact, over time, they may become
part of the wall, like a particularly bad food stain, and it may take
considerable work to get them off the wall again.
Polarization and regime change
well aware that if the left gets to exercise popular constitutionalism, so does the
right, including the Trumpist version of the right.Trumpist popular constitutionalism would have
very different values from left popular constitutionalism. As a person of the
left, Tushnet has written this book in the hope that the Trumpism will lose. That is
why its second half emphasizes progressive popular constitutionalism.
me to a set of issues where the analysis in his book and the analysis in mine
argues that there are three different cycles at work in American constitutional
politics. The first is the rise and fall of regimes, which forms the basis of
both of our books. But I also focus on how polarization has increased,
decreased, and then increased again over American history, and what this means
for politics and the Constitution. I have also argued that American history has
featured episodes of "constitutional rot," when democratic and
republican norms decay or are cast aside, followed by periods of constitutional
renewal. The three episodes of rot occur in the 1850s, the First Gilded Age,
and today, in our Second Gilded Age.
the book Tushnet recognizes that American politics is polarized, but he does
not really integrate that fact into his theory of regime change. For me, it's
really important whether regime change occurs in a period of intense
polarization (as in 1860) or in a period of relatively depolarized politics (as
in 1932 and 1980). If politics is depolarized, the transition between regimes
goes relatively smoothly. To be sure, there is great anxiety about the
country's direction, but as soon as the new regime is in place, that anxiety is
mostly forgotten, even as partisan disagreements persist. That is because in a
depolarized politics, compromises are still possible and members of both
parties still can win some victories.
But when regimeschange in a highly polarized
politics, things are quite different. The party losing dominance knows that it
disagrees with the other party on virtually everything. Grounds for compromise are fewer, so if the other party successfully begins a new regime, the older
dominant party fears that it will lose everything. As a result, it fights as
hard as it can to stop the transition from happening. Desperate times call for
logic is correct, then the coming transition is going to be very hard indeed,
much harder than 1932 or 1980. The Trumpist party will not go gentle into that
good night. We can only hope that there will not be actually constitutional failure,
as there was in 1860. But the transition will not be a smooth ride.
The Trumpist party-- the faction of the Republican Party that remains loyal to Trump's brand of demagogic politics, if not Trump himself-- will continue to remain a force in American politics for some time to come. A Democratic victory in 2020 will not necessarily usher in an era of political peace or a return to normalcy. Even if that happens, it will take a while, and Trumpism or other forms of demagogic conservative populism may still make a comeback. We are not out of the woods yet. Not even close.
Constitutional hardball and constitutional rot
regime decays during a period of deep polarization, and income inequality
rises, the country may also experience constitutional rot. My focus on constitutional
rot marks another difference between Tushnet's account of regime change and
mine. For me, the decay of constitutional norms that accompanies constitutional
rot is worrisome. For Tushnet, not so much.
One of the
most theoretically important chapters of Tushnet's new book is his discussion of
constitutional hardball, a term Tushnet coined that is now in common use.
is important and bears careful attention. Tushnet argues that people worry
about constitutional hardball much more than they should. He associates
constitutional hardball with regime change. As its power weakens near the end
of a regime, the dominant party may use constitutional hardball to stay in
power. Or members of the newly dominant party may use constitutional hardball to
consolidate their power.
reasons, Tushnet is mostly sanguine about the use of constitutional hardball.
You've got to break a few eggs to make an omelet. Moreover, the point of
constitutional hardball is that a party's hardball is technically legal but its
propriety is contested. Once a new regime has stabilized, things tend to settle on a
Put another way, Tushnet is more forgiving of constitutional
hardball because he sees it as a sign of transitional politics. That is why he
argues that the liberals and progressives should not be afraid of adopting
hardball tactics (for example, court packing) in order to establish a new
progressive regime. Why should Republicans have all the fun?
explains our different views on court packing. I am wary of court packing
because I think it exacerbates our existing polarization. In my book I propose
reforms-- like term limits-- that are designed to lower the stakes of judicial
politics. Because Tushnet does not see either polarization or rot as central
problems of our era, he disagrees. He notes that the parties may continue to
engage in constitutional hardball for a time, but eventually things settle
down. One party establishes a new normal, and the other party acquiesces.
account of constitutional hardball is an optimistic rejoinder to my views about
constitutional rot. He argues that what I see as threats to republican
government are actually the ways that a new regime establishes itself.
Constitutional hardball is not necessarily the enemy of democracy; it may be
the corrective that a democracy needs every now and then. For that reason,
Democrats should not fear using constitutional hardball if it is necessary to
establish a political regime that will restore and protect American
constitutional values (at least as Democrats understand them).
something deeply seductive about this account of constitutional hardball-- as a
problem that is not really a problem, and as a threat to democracy that is not
really a threat. I am also encouraged by Tushnet's optimism (I am a professional
optimist myself). But I fear that stormy times lie ahead.