Tushnet’s Taking Back the Constitution

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

It probably did not occur to many people encountering Mark Tushnet’s early career work that he would wind up being something of a national treasure in constitutional law.  Despite possessing the dubious virtues of unrelenting honesty and unfailing clarity, he is.  I’ve read most of Mark’s books and for relevance and making a timely punch in the right direction, Taking Back the Constitution is one of the best.  I hope we will have more.

Although it may put off some normatively-minded scholars, I like Tushnet’s characteristic way of making arguments, which amounts to saying: “this is the position we are in” rather than “this is the position we would like to be in.”  This means Tushnet’s analysis is firmly grounded in legal and political reality.  He starts with the assumption that “[t]he Trump presidency shows that the conservative constitutional order has reached the kind of inflection point that produces a new constitutional order.”  Tushnet means to survey the possibilities for constitutional law as the Reagan regime is ending in political time.  But this does not necessarily apply to the judiciary, which exists in their own “judicial time.”  In political time, one party regime replaces another, although Tushnet grants there may be a long interregnum in between.  However, “judicial time” is different and the Republican justices who now control the Court will likely remain for decades.

Tushnet’s book raises many interesting issues and I will not try to even mention all of them.  But his general view of judicial decision making does deserve a comment.  His is a contemporary version of legal realism, seeing judicial decisions as inevitably influenced by “political agendas or policy preferences.”  Law obscures these determinants of judicial decisions with a bewildering variety of forms of argument or argumentative “moves,” as Tushnet puts it.  Although this may seem to be a critique, Tushnet nonetheless works from an internal viewpoint that takes legal reasoning seriously without abstaining from describing the flaws of popular methodologies for making judicial decisions such as originalism.  As a legal realist, when Tushnet looks at a serious methodology like original public meaning originalism, what he sees is an elaborate way of avoiding the reality that judicial decisions, especially with respect to ambiguous clauses, reflect the aforesaid agendas or policy preferences.  Although he does not make the point in this book, Tushnet is well known for being anti-method when it comes to trying to improve constitutional argument (or scholarship) through the use of “theory.”  From his perspective, we should just get on with it.  We should not worry in an overly self-conscious fashion about how we make arguments within the conventions and tradition we already inhabit.  This does not prevent him from adopting useful theoretical innovations, such as the recently advanced distinction between interpretation and construction.

In my view, just as originalists have trouble seeing what a legitimate alternative to originalism looks like, as a legal realist Tushnet has trouble seeing that there might be genuine legal-related (not policy-related) reasons why academic originalists are concerned about the prospects for the rule of law in the United States.  I don’t share their precise concerns, but I’m sure they are real.

In Part One, Tushnet examines the relationship so far of the Roberts Court to the failing Reagan regime.  To put it another way, he describes how the Court attempts to assist Republicans in maintaining it.  He devotes attention to cases involving political rights, such as the campaign finance decisions and voting rights.  He argues that they have consistently helped Republicans and hurt Democrats.  For the Court, Republicans are the “home team,” as he puts it.  In the same way, he looks at the constitutional law of race and issues of importance to the conservative movement such as gun rights and free exercise of religion.

 In Part Two Tushnet asks where the Republican Court might take us in the future.  Because he views the Court as responding to shifting political realities, much depends on the outcome of the November election.  This election might put the Court in the position of being the only branch of the national government controlled by Republicans, much in the same way as the 2008 election (for two years only, of course).  If Democrats prevail, Tushnet thinks the Court will look for opportunities to cut into the possible entrenchment of a Democratic majority by causing trouble through decisions with respect to abortion and gun rights.  They could also assist business with its anti-regulatory agenda.

 In this analysis, Tushnet assumes the continuation of total gridlock in Congress.  One possibility he seems to overlook, particularly as he discusses the Court’s anti-regulatory agenda, is that Congress might actually get its act together under the Democrats through elimination of the filibuster.  With the restoration of true majority rule in the Senate, Congress might actually be able to legislate in a way that the Roberts Court would not be able to easily overturn.

In trying to forecast the future, Tushnet discusses recent doctrinal “moments” that got a lot of publicity at the time but then seemingly went nowhere.  His examples include the Court’s crusades on behalf of property rights, federalism, and a “weaponized” first amendment.  Here we may have a difference of opinion.  Putting in question the state power of eminent domain certainly seemed to go nowhere, but I think there is an argument to be made with respect to Rehnquist Court’s federalism decisions having a highly consequential doctrinal and policy payoff under Chief Justice Roberts.  Tushnet himself notes the impact of cases like Shelby County and voting rights cases generally.  And it was also crucial to the largely overlooked part of the ACA case which created the “Medicaid option” for the states – a development Tushnet does mention which arguably by itself has deprived millions of Americans, particularly African Americans in the South, of adequate medical care – and during a pandemic!  I think I understand Tushnet’s point.  He is looking for evidence that the Court is interested in establishing a chain of precedents that would fundamentally reorder the structure of federalism.  Like him, I think there is little chance of this happening.  We should not overlook however that the Court’s federalism decisions have not only already had significant policy consequences, but consequences that are directly relevant for our understanding of the relationship between federalism and racial equality.  I suggest issues of race are almost always relevant to federalism and vice-versa.

Tushnet makes the important point that Democrats have to think forward with respect to the Roberts Court.  What the Roberts Court tolerated in the past when it did not appear that a new Democratic regime was consolidating will not be what it allows following a prospective 2020 victory.  In considering a possible confrontation with the Roberts Court, Democrats might be thinking in terms of FDR’s conflict with the Old Court during the New Deal.  But actually, as Tushnet says repeatedly, they are largely facing a Young Republican Court, a Court that is already moralized to serve as the brake on whatever their coming reformation may be.

Here Tushnet raises the issue of why Democrats have not placed as much weight as Republicans on controlling the federal judiciary without fully addressing it.  I’ve heard various explanations, none of them very convincing.  Tushnet alludes to one when he notices that Democratic presidents have to win support for their Supreme Court picks from a large variety of groups rather than just consulting the Federalist Society.  Yet this is a question that deserves much more attention.  Both Clinton and Obama had their chances to highlight this issue for their supporters and they just didn’t.  It may well be true that Democratic presidents have more interest groups to answer to than Republican presidents.  But why won’t Democratic presidents spend more time to alter this situation or, at least, the expectations of their own supporters?  This, I think, is a harder question to answer than Tushnet lets on.  Judicial nominations should matter more to Democrats but for a whole complex of historical reasons that should be interesting to unravel, they don’t.

Tushnet saves his most important argument, a call for formal constitutional change, for the end of the book.  Tushnet calls for “popular constitutionalism” (whether from the left or right) and contrasts it with rule by elites.  I agree with him that the American public as a whole (although not necessarily on a state by state basis) is probably more egalitarian on economic issues than many elites are willing to admit or tolerate.  And I agree that popular constitutionalism in an American sense is about promoting democratic self-governance.  What I perhaps disagree about is that you can have the “popular” without doing something adverse to constitutionalism itself.

Although some scholars resist this, constitutionalism American-style tends to be a supremacy system in the specific sense that the Constitution is regarded as the supreme law of the land and hence the high ground for all parties.  If popular “constitutionalism” is understood as replacing the law of the Constitution with the law of the general will of the people, it will not necessarily be appealing to the those who are supposed to support it.  Hence I see a tension, which Tushnet may not, between supporting the “popular” or democratic side of constitutionalism and what both conservatives and many liberals understand as the “rule of law.”  Of course, when Tushnet argues we should make greater use of the Article V amendment process, I can only agree as it is my position as well.  But he also argues that we might try amending the Constitution somehow outside Article V, and I see little reason to think this could happen or that it would be a good idea.

By the end of the book Tushnet’s arguments resemble those made by progressives at the beginning of the twentieth century, particularly in western states like California.  They decried their experience with gridlock and thought state legislatures in particular were unreliable and corrupt.  They argued for the use of “direct democracy” – the mechanisms of referendum, initiative, and recall.  The nature of the challenge facing Tushnet or anyone else, including myself, advocating popular constitutionalism can be measured by how many constitutional scholars (especially in California!) believe the results were desirable.  In my experience in writing about direct democracy, they don’t (although Ariel Kleiman may be an exception).  They believe in particular that direct democracy has been harmful to racial minorities.  Yet Tushnet has some excellent counters to doubts about involving the people directly in constitutional change and this section alone is worth the price of the book.

I agree completely with Tushnet on the need to pursue alternatives to the present Constitution and alternative ways of pursuing constitutional change.  He says we need “realistic utopianism,” on both the left and right.  I agree but my term, offered in a slightly more practical spirit, would be “amendment politics.”  In a regime where amendment politics is a player, it would be understood that every political party and political movement needs to stake their claim to constitutional change by offering a series of formal amendments.  Proposals to amend the Constitution have the virtue of concentrating the mind and forcing responses.  It so happens that during the Reagan regime, they have been far more prevalent on the conservative right than the liberal left.  As many have urged over the years, I think the time has come for liberals to stake their own claim to formally altering the Constitution.