Mark Tushnet

Mark Tushnet
Harvard University | Harvard · Office of Technology Development

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214
Publications
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Publications

Publications (214)
Chapter
This chapter examines the cases of Italy, where a left-wing populist party entered a coalition government; and Austria, where a right-wing party did so. In neither case were the governments themselves anti-constitutional, nor were the constitutional reforms pursued by the parties. Populist parties can act just as “normal” political parties do, at l...
Chapter
Left-wing populist parties have joined coalition governments in Greece and Spain. This chapter examines their programs and their performance in office, showing that the parties displayed some of the characteristics associated with populism but few anti-constitutional ones even as they sponsored or supported some constitutional changes.
Chapter
This chapter offers a “thin” definition of constitutionalism, as involving majority rule (usually free and fair elections and sometimes other methods of reliably determining majority preferences), some entrenchment of constitutional provisions, judicial independence, and politicians and political parties as vehicles for organizing public expression...
Chapter
This chapter reviews scholarly definitions of populism, emphasizing the relation between the assertedly “thin” ideology of populism and the thicker ideologies that give it content, and reviews as well quantitative studies that show the populism in power tends to erode some constitutional basics. It argues that understanding specific populisms and t...
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Many populist governments have engaged in programs of judicial reform, sometimes described as court-packing. After laying out the reasons the people have for electing populist governments, including, importantly, a desire to see ambitious policy reforms adopted, the chapter describes the political logic of constitutional reform, including court ref...
Chapter
Some populists sincerely want to expand the opportunities for ordinary people to govern themselves. Their advocacy for that goal is sometimes met with skepticism. This chapter examines three accounts of why some forms of government other than expanded democracy are desirable: technocracy, representative democracy to the exclusion of direct democrac...
Book
Self-described populist leaders around the world are dismantling their nation’s constitutions. This has led to a widespread view that populism as such is inconsistent with constitutionalism. We disagree. Some forms of populism are inconsistent with constitutionalism, others aren’t. Context and detail matter. We begin with a thin definition of const...
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After explaining why populists are not committed in principle to solely plebiscitary democracy, this chapter explores recent innovations in democratic design that allow for expanded participation by the people in their own governance. A thought experiment about direct popular design of responses to the Covid-19 pandemic is followed by a detailed an...
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This chapter provides case studies of authoritarianism in Hungary and Poland. After describing the social and economic programs that the populist parties pursued, the chapter examines their constitutional reforms in some detail. Although some of the reforms might in principle be reasonable specifications within thin constitutionalism, in both natio...
Chapter
When populist leaders become chief executives, it is said, they routinely seek to expand executive power so that they can speak for the people. This chapter examines two forms of expanding executive power—the elimination of presidential term limits and the use of decrees rather than statutes in emergency conditions. After laying out the political l...
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Steven Levitsky and Daniel Ziblatt have argued that constitutions are maintained not only by formal institutional mechanisms but by informal “guardrails,” most notably mutual tolerance and forbearance. This chapter interrogates the idea of guardrails and the associated idea of a pro-constitutional culture, both in general and in connection with pop...
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Kim Lane Scheppele’s term, “Frankenstate,” signals that looking at constitutional changes one by one might be misleading when the changes cumulate to create a constitutional monster. This chapter examines the mechanisms by which discrete changes become problematic. It identifies problems that occur when changes, not necessarily intrinsically proble...
Chapter
This chapter examines several themes in populism. Against the claim that framing politics as a struggle between “the people” and “the elites” threatens constitutionalism, it counters those suggestions by observing that casting politics in terms of “us versus them” is quite natural and not distinctively associated with populism, and that the elites...
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Should the US Supreme Court be reformed? How would that be different from what has happened in Poland? BOJAN BUGARIC and MARK TUSHNET on why abstract discussions on constitutional design and "judicial independence" obscure the real stakes.
Preprint
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Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are...
Chapter
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting ex...
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Responding to Jan Komárek’s “Constitutional Revolutions and the Constituent Power: A Reply to Mark Tushnet” I argue that positing that constitutions “recognize” rights from some external source presents the problem, addressed in the theory of the right of revolution, that constitutions might “recognize” the wrong set of rights, and in particular mi...
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This essay argues that invoking the concept of the “constituent power” clarifies some persistent puzzles about the constitutional and legal status of purportedly unconstitutional constitutional amendments. It argues that in some circumstances such amendments should be understood as exercises of the constituent power, effecting revolutionary transfo...
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The imperial presidency’s place in international affairs will be secure—as long as U.S. foreign policymakers seek to preserve the nation’s hegemonic role in the world—and dangerous, because the stakes, war and peace, are so high. In the domestic arena, the imperial presidency is a response to contemporary political gridlock. But although such gridl...
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Using Singapore as an extended case study, this Article examines the idea of authoritarian constitutionalism, which it identifies as a system of government that combines reasonably free and fair elections with a moderate degree of repressive control of expression and limits on personal freedom. After describing other versions of non-liberal constit...
Book
Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world’s largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attenti...
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Writing in 2005, Justice Stephen Breyer outlined the principles that animate his interpretation of “our democratic constitution.”1 He focused on several areas of constitutional doctrine, including two areas of free speech doctrine, namely the law dealing with campaign finance regulation and the law dealing with the regulation of commercial speech....
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By the late nineteenth century three streams flowed together and became embedded in a discourse of constitutionalism: socialist ideas of economic redistribution, Bismarck's programs of social welfare and the Catholic Church's social teachings. These streams remained important in the early twentieth century and eventually led to the embedding of soc...
Chapter
Discussions on the constitutional regulation of counter-terrorism policy have often focused on issues about the relationship between constitutionalism and ‘emergencies’, with Carl Schmitt and Giorgio Agamben playing large roles and the idea of a suspension of legality asserted and disputed. But, as Mary Dudziak’s recent work War Time confirms, coun...
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This article examines some aspects of the distinction between the rule of law and rule by law, elucidating those concepts by focusing on their role in political systems with a dominant political party. After criticizing accounts in which the rule of law serves some instrumental purposes of the dominant party, such as promoting foreign investment, t...
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The Review-Essay discusses Lucas Powe's recent book, The Warren Court and American Politics. Examining Powe's analysis of the way in which the Warren Court's decisions influenced politics and of the way in which politics affected the Warren Court's decisions, it raises questions about the evidentiary support for some of Powe's claims. It suggests t...
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After describing the political, intellectual, and doctrinal background to Keyes v. School District No. 1, this Keynote Address narrates some aspects of the way the deliberations in Keyes proceeded inside the Court. For the Justices, Keyes was less a case about the standard for determining when a Northern school board engaged in de jure segregation...
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By outlining the history of administrative law from the Progressive era to the present, this essay suggests a genealogical connection between Dewey's pragmatism and democratic experimentalism. Democratic experimentalism is rooted in the Progressive paradigm of an administrative state guided by expert judgment but responds to the ossification of the...
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First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. First Amendment risk varies along several dimensions, including distribution of risk, its magnitude, and the magnitude of social benefit. After describing several cases in which the Supreme Court’s assessment risk or harm...
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This Essay, forthcoming in the University of Pennsylvania Journal of Constitutional Law, argues that ideas associated with the field of American political development can assist constitutional scholars interested in constitutional development. It speculatively examines structural features of contemporary constitutional politics using such ideas as...
Chapter
Legal 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, rej...
Chapter
This article examines three topics that have persistently arisen in connection with discussions of constitutions: What is the relation between a constitution and a 'nation' or a 'people', understood as those who reside within the territory for which the constitution is a constitution? What is the relation between written and unwritten principles of...
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In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Ireland, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unrem...
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This chapter explores the determinants of a politics that is directed at the specification of rights, including: whether there is parliamentary supremacy or separation of powers, whether the legislation is primarily rights focussed, the access of interest groups to a party political structure, the extent to which parties are coalitions, the strengt...
Article
Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying...
Article
Stephen Neff teaches international law, and that shows from the first page of Justice in Blue and Gray, where it is already clear that international law is the book's focus. This focus can most obviously be contrasted with that of the most distinguished predecessor to Neff's work, James G. Randall's Constitutional Problems under Lincoln, originally...
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This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitution...
Chapter
The separation of the judiciary from the executive and the legislature is one of the best known examples of the dispersal of leadership in democracies. In the security and independence accorded to judges, and especially in the entrenchment of the authority of constitutional courts, we see the unique institutional measures that characterize modern l...
Chapter
The United States has many systems of judicial selection, discipline and removal. The national courts (sometimes called the federal courts) and the fifty states differ quite substantially along these dimensions. This chapter describes the federal court system in some detail and provides a broad-brush overview of state judicial systems. There are pe...
Chapter
Supporting the proposition that deprivation of citizenship “has grave practical consequences,” Justice Arthur Goldberg wrote: “The drastic consequences of statelessness have led to reaffirmation in the United Nations Universal Declaration of Human Rights, Article 15, of the right of every individual to retain a nationality.” Justices Potter Stewart...
Article
Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar...
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In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather tha...
Article
This brilliant, provocative, sometimes quirky, but consistently engaging book is filled with striking insights about, and careful readings of, courthouse documents and appellate opinions from post-Revolutionary North and South Carolina, but its significance ranges far beyond that period and those locales. Edwards distinguishes between localized law...
Article
Recently Jeremy Waldron offered the 'core of the case against judicial review'. Richard Fallón responded with the 'core of an uneasy case for judicial review.' The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar...
Book
In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties-not Supreme Cour...
Article
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can...
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This 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 regu...
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This Essay offers a brief and highly speculative political, intellectual, and legal history of the theory of the unitary executive in the late twentieth century. I suggest that that theory developed in three stages, which I label the weak, the strong, and the super-strong versions, and confronted one alternative that superficially resembled the the...
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This essay, prepared for a conference, "Is the Constitution Obsolete?," to be held at Baruch College, City University of New York, and to be paired with an essay favoring judicial review, outlines the case against judicial review, which, it argues, contains a positive and a negative component.The positive component is this: As a general matter demo...
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In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: th...
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This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution's text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goa...
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This Essay, forthcoming in the Howard Law Journal, describes Thurgood Marshall's meritocratic egalitarianism. Marshall was sensitive to the wide range of talents people actually had and was skeptical about claims that talents in any field were distributed in a steep pyramid, with many less talented at the base and only a few highly talented at the...
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Adrian Vermeule, it turns out, is a “goo-goo.”1 That term was derisively applied by hard-headed politicians to Progressive-era reformers who offered a variety of good-government reforms that, the politicians said, had no chance of being adopted. The politicians were wrong, but for reasons that shed some light on Vermeule’s enterprise. Vermeule begi...
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Americans have always framed claims of injustice in the language of rights, but the late twentieth century saw a large expansion of the domain in which the language of rights played a major part in political and legal contestation. This “rights revolution” in the twentieth century also transferred large parts of that contestation from purely politi...
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On March 6, 2008, the Harvard Journal on Legislation held a public symposium addressing election law issues, in anticipation of the elections that were to take place later that year. This piece briefly presents the importance of election laws to legislation in a broad sense, discusses paradoxes unique to the intersection of politics and substantive...
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Heller’s compromise was to invalidate one quite restrictive gun regulation while asserting that others are presumptively constitutional. The Court’s opinion does not clearly explicate the methods courts are to use in analyzing gun regulations, and the analogies it draws between the First and the Second Amendments leave the methodological question o...
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Recently Jeremy Waldron offered the "core of the case against judicial review." Richard Fallon responded with the "core of an uneasy case for judicial review." The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar...
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Full-text available
Steven Teles's book, The Rise of the Conservative Legal Movement, is a case study of ideological challenge. Teles, a political scientist, emphasizes the institutional dimensions of such challenges. Relying on interviews and internal documents produced by conservative organizations, he examines the development of conservative litigating groups (i.e....
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This Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing...
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How well can legislatures evaluate the constitutional questions that are inevitably bound up with regulation of the political process? Modern parliamentary systems have developed forms of “rights-vetting” using specialized committees and ministry units to consider constitutional questions. Designing such institutions requires careful consideration...
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The first of these companion essays, Heller and the New Originalism, forthcoming in the Ohio State Law Journal, argues that the new originalism, as exemplified in Heller, does not avoid the general kinds of difficulties associated with the old originalism, at least to the extent that the new originalism is defended as providing, in Justice Scalia's...
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Governing with the Charter: Legislative and Judicial Activism and Framers' Intent, KellyJames B., Vancouver: UBC Press, 2005, pp. xii, 323. - Volume 41 Issue 2 - Mark Tushnet
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In D.C. v. Heller, the question before the Court is whether the District's prohibition of further registration of handguns, its ban on the carrying of concealed guns, and its mandate that guns kept in homes remain unloaded and either locked or disassembled violate citizens' rights that are guaranteed by the Second Amendment. Mark Tushnet writes tha...
Chapter
Historical Background An OverviewThe Indeterminacy ThesisCritical Legal Theory and Social TheoryThe Critique of the Public/Private DistinctionPolicy “Implications”The Critique of RightsCritical Feminist Theory and Critical Race TheoryThe LegacyReferences
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Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effec...
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David Currie's four volumes about constitutional interpretation in Congress from 1789 to the Civil War provide historians, political scientists, and legal scholars with important insights into American political development. The books shed light on the gradual erosion of Congress' capacity to interpret the Constitution and offer a solid basis for p...
Chapter
Why study comparative constitutional law? For a scholar, of course, the value seems obvious: more knowledge is generally better than less. Others have a more instrumental interest. They might want to know whether studying comparative constitutional law might improve our ability to make domestic constitutional law. Responding to that inquiry require...
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In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional we...
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Suppose Charles Reich had typed “The New Citizenship” on the first page of his article. He might have rediscovered republicanism a generation earlier than the neo-republicans of the 1980s. Perhaps he might even have understood that a right to some minimum of property, sufficient to guarantee the independence essential to the exercise of citizenship...
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My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in gener...
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Johnson offers a strongly nationalist interpretation of the original constitutional design, of a sort not seen since Crosskey's massive and eccentric work in the 1950s. Crosskey placed congressional power to regulate commerce among the states of the heart of his nationalist interpretation. Johnson substitutes the national government's power to tax...

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Projects (2)
Project
Analysis of new constitutional "branch" with institutions charged with democracy-protection (electoral commissions, anticorruption agencies, etc.). Aims to develop a general account of these institutions.