America's Aristocracy

Abstract

In Taking the Constitution Away from the Courts,' Professor Mark Tushnet takes on America's favorite branch. Perhaps the brightest star in a movement that seems to have fizzled out,2 Tushnet is particularly well suited to play the lone child who bares to the bewildered populace the truth about their judicial emperors. After all, the Left has never been reluctant to speak (or shout) the truth to power. Tushnet requests that we reorient ourselves toward a constitutional law, in which the people and their elected representatives vindicate the Constitution and the courts have absolutely no enforcement role. To relegate the judiciary to the status of constitutional ciphers, Tushnet advocates a constitutional amendment that would provide that [t]he provisions of this Constitution shall not be cognizable by any court. With respect to his thin constitutional project, Tushnet would replace our already compact and vague Constitution with something even more nebulous and unhelpful. We may be attached to justice, the general welfare, and liberty, but that does not mean that we share many meaningful commitments. A KKK member might claim that justice entails the eradication of all racial minorities. A Communist Party cadre would find the general welfare served by the abolition of private property. As should be obvious, Tushnet's thin Constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing. Such an anorexic, yet cavernous, document would neither enjoy any obvious advantages nor attract any genuine allegiance. His populist constitutional project fares much better but still falls short. Tushnet does not carry his burden of persuasion when he argues that the courts should play absolutely no role in enforcing the Constitution. His strongest argument rests on his claim that the courts are largely inconsequential because they usually follow the election returns. But if the judiciary does not really matter, he must explain why we should bother abolishing judicial review. Indeed, if the judiciary follows the election returns, perhaps we already have an unintended populist constitutional law regime. Paradoxically, his arguments might dispel the misgivings that certain quarters have about judicial review. Notwithstanding all this, Tushnet's radicalism has highlighted a fatal flaw in a system purportedly based on the principle that the people rule: America has an elitist constitutional law in which only the judgments, opinions, and perspectives of the courts matter. While we could make our constitutional law more responsive to the people by eliminating judicial review, we would thereby eliminate the benefits that flow from having an institution that specializes in interpretation and from having an independent check on the other branches. Perhaps the better means of ushering in a populist constitutional law would be to abolish life tenure for federal judges. If we eliminated life tenure, judges would no longer seem infallible and we would no longer place them on a pedestal. Nor would they have complete freedom to pursue their own agendas. Instead, we could hold them accountable for their biases, failings, and errors. Most importantly, eliminating life tenure would serve as a concrete sign that judges, like all public servants, serve at the pleasure of the people.