Cornell Law School
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.
James E. Fleming,
The Constitution Outside the Courts
Cornell Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2765