"The NAACP's fight against segregated education - the first public interest litigation campaign - culminated in the 1954 Brown decision. While touching on the general social, political, and economic climate in which the NAACP acted, Mark V. Tushnet emphasizes the internal workings of the organization as revealed in its own documents. He argues that the dedication and political and legal skills of staff members such as Walter White, Charles Hamilton Houston, and Thurgood Marshall were responsible for the ultimate success of public interest law. This edition contains a new epilogue by the author that addresses general questions of litigation strategy, the contested question of whether the Brown decision mattered, and the legacy of Brown through the Burger and Rehnquist courts."--Jacket.
Following on Making Civil Rights Law, which covered Thurgood Marshall's career from 1936-1961, this book focuses on Marshall's career on the Supreme Court from 1961-1991, where he was first Afro-American Justice. The first book on Justice Thurgood Marshall's years on the Supreme Court based on a comprehensive review of the Supreme Court papers of Justices Marshall and William J. Brennan, this work describes Marshall's special approach to constitutional law in areas ranging from civil rights and the death penalty to abortion and poverty. It also describes the Supreme Court's operations during Marshall's tenure, the relations among the justices, and the particular roles played by Chief Justice Warren Burger, Justice Brennan, and Justice Antonin Scalia. The book locates the Supreme Court's actions from 1967 to 1991 in a broader historical and political context, explaining how Marshall's liberalism became increasingly isolated on a Court influenced by nation's drift in a more conservative direction.
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 be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stro.
Recent scholarship on popular constitutionalism has two strands. A normative strand urges that the views of ordinary people about constitutional meaning should play at least as large a role in constructing the nation’s constitutional understandings as do the views of elites, and especially the views of Supreme Court justices. A descriptive strand emphasizes the fact that popular views on the Constitution’s meaning have played a large role in the nation’s constitutional development – surging to the forefront at times, receding later, but always present in some form. This brief Essay contributes to the descriptive strand, and specifically to discussions of how popular views are articulated within the framework of political institutions understood broadly to include social movements and political parties. Without purporting to have done a systematic survey, I have the sense that – perhaps influenced by the modern availability of public opinion polls – critics of popular constitutionalism believe that popular views can somehow be read off “the people’s” expressions, whether in demonstrations, in letters to the editor, or similar alternatives. I believe that criticism misunderstands how politics, even popular politics, works, which is in and through institutions. Consider popular demonstrations, incorporated into Larry Kramer’s analysis as, in the eighteenth century phrase, “the people out-of-doors.” Scholars have shown how popular demonstrations are organized events. So, for example, Jacksonian era riots against abolitionists were organized, as the title of an important study puts it, by “gentlemen of property and standing.” As that phrase suggests, elite involvement in popular expressions is not unknown. The original Boston Tea Party was similarly elite led. Yet, there are examples of truly bottom up organization of popular expression about constitutional matters. A notable example are the free speech fights of the Industrial Workers of the World in the early twentieth century, labor insurgencies of ordinary working people, though with local leaders drawn from the IWW. Wherever the leadership comes from, though, popular expression on constitutional matters involves organization – be it the organization of mobs or unions or anything else. This Essay deals with the two primary forms of organization – organization within the political system, whether as a faction within an existing party or as a “third” party, and organization outside the party system in social movements or in what we now tend to call “civil society.”
Professor Kautz, a political theorist, tells lawyers to stick to our lasts. We ought to do only law and refrain from seeking assistance from political theory. This is not, however, because we are likely to do badly as consumers of political theory. Rather, Professor Kautz insists on a reasonably sharp distinction between roles. Political theorists "educate the public mind," whereas lawyers, in our capacity as lawyers, do law. Of course, in other roles lawyers may seek to educate the public mind as well. And there, I think, lies one of the two problems I wish to address here. I doubt that a sharp distinction can be drawn between doing law and educating the public mind. My second difficulty is that Professor Kautz's sense - I cannot call it more than that, in light of the allusiveness of his comments - of what law "is" seems to me substantially inaccurate. These two problems are related: Precisely because the outlines of the law are less clear than Professor Kautz appears to believe, the distinction between doing law and educating the public mind is quite thin.
This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible - though sometimes only barely so - by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order. I offer a number of illustrations from constitutional history and contemporary controversies. Although the Essay is largely descriptive, I conclude with some modest normative observations about whether constitutional hardball is healthy for a constitutional community and, for those who think it is not, how we can avoid the practice.
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 seems mistaken, I describe the tendency over time for courts to replace doctrine articulated as standards with doctrine articulated as rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules.
Those concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is the federal‐state relationship out of balance? Assuming that the federal government has gotten too large, what can you do about it? Or, more generally, what can you do if you think that the federal government is too big, or too small, or is doing the wrong things, or is not doing what it should be doing? The obvious answer to the two latter questions is that you win elections. The winners decide what good governance is. There are, however, two problems with that answer. First, once you win an election, you can still lose the next one. As a result, you have an interest in figuring out some method to entrench your policy positions reasonably permanently. Second, some of the things you want to do may be precluded by the existing Constitution, though people obviously disagree about what those things are. The obvious remedy to both of these problems is to amend the Constitution. So to entrench your policy victories, you need to win elections first, and then you might also have to amend the Constitution.