Document Type
Book Review
Publication Date
11-2000
ISSN
0010-8847
Publisher
Cornell Law School
Abstract
In this Book Review, Professor Fleming examines Professor Tushnet's arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet's arguments that the “thick Constitution”--in particular, its commitments to federalism, states' rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how legislatures, executives, and citizens should conscientiously interpret the Constitution, or sufficiently consider how to revise our current practice to make it more likely that these bodies will fulfill their obligations to do so. Finally, he argues that Tushnet's notion of the thin Constitution is too thin to constitute us as a people. Nonetheless, the review concludes *216 that Professor Tushnet has helped lay the groundwork for taking the Constitution seriously outside the courts, not by taking it away from courts, but instead by taking it to legislatures, executives, and citizens generally. Moreover, Professor Fleming concludes that Professor Tushnet's book is the most provocative and significant contribution to this project to date.
Recommended Citation
James E. Fleming,
The Constitution Outside the Courts
,
in
86
Cornell Law Review
215
(2000).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2765
Comments
This is a book review written by James Fleming about TAKING THE CONSTITUTION AWAY FROM THE COURTS. BY MARK TUSHNET. d1 PRINCETON: PRINCETON UNIVERSITY PRESS, 1999.