Mark Tushnet Research Articles

Comment: The Ambiguous Work of 'Natural Property Rights'

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a right and why has the language persisted today? More specifically, what work is the rhetoric of natural property rights intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Emergency Powers

▪ Abstract This review considers competing models of emergency legal regulation in the aftermath of the terrorist attacks of September 11, 2001. Drawing on research in political science and political sociology, it criticizes recent debates about emergency powers among legal and constitutional scholars for ignoring the institutional dynamics of modern executive power, especially in presidential regimes. Constitutional relativists (e.g., Harvey Mansfield, Michael Stokes Paulsen, John Yoo), defenders of the extralegal model of emergency action (Oren Gross, Mark Tushnet), and common lawyers (David Cole, David Dyzenhaus) are criticized for failing to consider the pathologies likely generated by their proposals in an institutional context in which the executive possesses incentives for declaring, perpetuating, and exploiting emergency situations. Only a legal formalist perspective on emergency government (e.g., Bruce Ackerman) pays sufficient attention to the institutional dynamics of the contemporary executive.

The Supreme Court and American political development

This innovative volume explores the evolution of constitutional doctrine as elaborated by the Supreme Court. Moving beyond the traditional law versus politics perspective, the authors draw extensively on recent studies in American Political Development (APD) to present a much more complex and sophisticated view of the Court as both a legal and political entity. The contributors - including Pam Brandwein, Howard Gillman, Mark Graber, Ronald Kahn, Tom Keck, Ken Kersch, Wayne Moore, Carol Nackenoff, Julie Novkov, and Mark Tushnet - share an appreciation that the process of constitutional development involves a complex interplay between factors internal and external to the Court. They underscore the developmental nature of the Court, revealing how its decision-making and legal authority evolve in response to a variety of influences: not only laws and legal precedents, but also social and political movements, election returns and regime changes, advocacy group litigation, and the interpretive community of scholars, journalists, and lawyers. Initial chapters reexamine standard approaches to the question of causation in judicial decision-making and the relationship between the Court and the ambient political order. Next, a selection of historical case studies exemplifies how the Court constructs its own authority as it defines individual rights and the powers of government. They show how interpretations of the Reconstruction amendments inform our understanding of racial discrimination, explain the undermining of affirmative action after Bakke, and consider why Roe v. Wade has yet to be overturned. They also tell how the Court has collaborated with political coalitions to produce the New Deal, Great Society, and Reagan Revolution, and why Native Americans have different citizenship rights than other Americans. These contributions encourage further debate about the nature and processes of constitutional change.

The Constitution in Wartime: Beyond Alarmism and Complacency, by Mark Tushnet

<i>The Constitution in Wartime: Beyond Alarmism and Complacency</i>, by Mark Tushnet

Terrorism, the laws of war, and the Constitution: debating the enemy combatant cases

The modern laws of war that emerged in the seventeenth and eighteenth centuries were developed with a particular concept of war in mind-one that does not apply to the conflict with our current adversaries. With the September 11 attacks the United States found itself engaged in a new kind of war, with new dilemmas that needed new rules. Terrorism, the Laws of War, and the Constitution examines three significant enemy combatant cases-Padilla, Hamdi, and Rasul-that represent the leading edge of U.S. efforts to devise legal rules, consistent with American constitutional principles, for waging the global war on terror.The volume's distinguished contributors analyze the crucial questions these cases raise about the balance between national security and civil liberties in wartime, discuss critical separation of powers issues, and call upon the courts, the political branches, and the country to reexamine the complicated connections between the Constitution and international law. Spanning the spectrum of informed legal opinion, the essays gathered here show that debating the enemy combatant cases is indispensable to meeting the legal challenges to come in the long war that lies ahead. Although they may disagree as to the details, the contributors are in full agreement that fortifying the rule of law at home is both a demand of justice and a national security imperative. Contributors: Mark Tushnet, Patricia M. Wald, Seth P. Waxman, Ruth Wedgwood, Benjamin Wittes, John Yoo

Judicial Rights Talk: Defects in the Liberal Challenge to Constitutional Review

A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.

On Judicial Review: Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate

The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have thepower to review the constitutionality of statues enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.

The International Legal Order

This paper reviews major directions in the recent scholarship of international law. Commissioned for the Oxford Handbook of Legal Studies (Peter Cane and Mark Tushnet, eds., Oxford University Press, 2003), it is highly synoptic, being limited to 10,000 words and 30 references. It argues that the Anglo-French scholar-practitioner focus on disputes and on third-party settlement, with its associated positivist theory, has dovetailed with broader U.S.-led problem-solving approaches in encouraging the development of several useful legal concepts: sustainable development; international criminal responsibility; transnational civil responsibility; a renewed exclusivity of domestic jurisdiction; and an expanding but precarious concept of a unified international legal system. But the dominant positivist theoretical structure that has held international legal practice together now encounters internal critiques of some of its core concepts such as statism, national interest, and instrumental rationality, as well as external challenges from critical, neo-Marxist, and constructivist perspectives. Its viability is seriously in question, unless it can be deepened and renovated through current efforts to address such issues as legitimacy and democracy in international governance; the roles and approaches of major states such as the U.S.; and the more general functions of normativity in international order. A proposal for rethinking the concept of international law is outlined. It is argued that the Grotian integration of theory and practice is a valuable and distinctive feature of international law, that there are ethical arguments for the predominant positivist positions which this problem-solving engagement with practice has fostered, that problems such as moral injustice and lack of legitimacy now require a richer approach to international law rules and process in an era of deepening international governance, and that a Grotian conception of international law which integrates sources-based and content-based criteria provides a promising way forward.

Representations of Brown v. Board of Education in Selected Educational Resources for Middle School Students

In commenting on the U.S. Supreme Court's landmark Brown v. Board of Education decision outlawing legal segregation in public education, historian Waldo E. Martin, Jr. observed that, Brown deserves to be recognized for its enormously liberating impact on America and the world. Post-Brown American society was forced to look deep within itself and confront the fundamental problem of white racism and its impact on whites and blacks alike.... Reflecting unconditional faith in the best of the founding American ideals, Brown signifies hope for America's future. It stands for a better America: a humane, inclusive, and free America. (1) Echoing themes found in the legal scholarship of Mark Tushnet and Katya Lezin, Martin pointed out that Brown has profoundly influenced the evolution of 'rights consciousness' within American society--that is, judicial activism on behalf of human rights, most notably those of oppressed groups and individuals. (2) Because of Brown's liberating effects on American society, its vindication of the nation's original egalitarian ideals, and its importance in the ongoing legal campaigns to end racial oppression, it is essential that young students have access to resources offering a clear and accurate analysis of the decision and its significance in U.S. history. In an effort to understand how well this objective is being met by some educational materials currently available, this essay will draw on historical scholarship to evaluate representations of Brown in selected books and other resources for students at the middle school level. These resources will be evaluated as historical and pedagogical texts, and I will draw upon my personal experiences as a history educator in assessing these materials. Historians David Hackett Fisher and James M. McPherson in the introduction to their book series, Pivotal Moments in American articulated the current state of historical pointing to the growing attention to the experiences of ordinary people, increasing sensitivity to issues of gender, class, and ethnicity, and deep interest in large structures and processes. New historical studies seek to combine this new scholarship with old ideas of history as a narrative art and traditional models of sound scholarship, mature judgment, and good writing. (3) Drawing on this standard for historical writing, the middle school texts to be valued most highly will be those that: (1) include ordinary people's stories along with the stories of famous leaders; (2) are sensitive to gender, class, race, and ethnicity issues; (3) make connections between individual events and larger national and international structures and institutions; and (4) exhibit good storytelling and a strong grasp of the historical facts. With regard to pedagogical approaches, in their essay Making Sense of Accounts of History, Margaret G. McKeown and Isabel L. Beck provided some useful and specific information about what it means for an historical text to tell a story well. They valued most highly texts that (1) use a narrative structure that is causal, explanatory, and engaging, and (2) give voice to the humanity of events being portrayed and the threads that connect them to principles, motivations, and consequences. (4) With regard to my teaching experience, for five years I served as Director of Education at an eighteenth-century historic house museum in the northeastern United States. A Revolutionary War historical site and the scene of visits by Thomas Jefferson, Alexander Hamilton, John and Abigail Adams, Aaron Burr, and William Lee, an enslaved African and personal attendant to George Washington during the Revolution, the museum offers rich opportunities for education in early American history. Following the lead of many public schools' curricular emphasis on the use of primary source materials in social studies courses, I developed and taught educational modules for middle and high school classes in which students combined the study of material culture with primary source documents to illuminate the history of egalitarian ideals in the Revolutionary era and the early years of the United States. …

Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?

law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts.But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law.This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism.Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism.Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a shared cooperative activity (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that law functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory - in particular, for popular constitutionalism.

Black on "Brown"

The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court’s decision. Nonetheless, the legal culture needs more voices like Black’s. Of all the early writing on Brown v. Bd. of Education, the most striking is a ninepage essay by Charles Black. Black’s essay is striking because of its simplicity, its concreteness, and its realism—its clear statement of what the system of segregation did and meant, and of the relationship between that statement and Black’s reading of the Constitution. For three reasons, Black’s essay is worth careful consideration today. First, it gives a vivid sense of the social realities that Brown actually confronted—a sense that was entirely missing from the legal culture at the time, and one that often seems to have been lost in contemporary discussions of the Brown problem. Second, Black’s essay offers a distinctive understanding of what the equal protection clause should be taken, above all, to forbid: the maintenance of a caste system. That understanding of the clause seems to me correct, and it bears on a number of issues today. Third, Black provides a sophisticated and morally committed version of a certain approach to constitutional * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School. 1 347 US 483 (1954). argument, one that retains considerable influence. I think that for all its virtues, his approach suffers from the serious vices of formalism and institutional blindness. In particular, Black’s approach suffers from its failure to see the issues that have arisen as a result of the institutional turn of post-1980s constitutional law. We can learn a great deal about Brown by reading Black sympathetically. We can learn something about constitutional interpretation by reading him skeptically. Let us begin by listening to him. I. The Sovereign Prerogative of Philosophers Black begins with a two-part argument that he describes as “awkwardly simple.” First, the equal protection clause is best read to forbid state law from significantly disadvantaging the Negro race as such. Second, segregation counts as a massive intentional disadvantaging of the Negro race as such. “No subtlety at all. Yet I cannot disabuse myself of the idea that that is really all there is to the segregation cases. If both these propositions can be supported by a preponderance of argument, the cases were rightly decided.” Black attempts to support the first proposition by reference to precedent. In several cases, the Court had seemed to endorse it. To be sure, Plessy v. Ferguson appeared to be “a faltering from this principle.” But even in Plessy, the Court did not repudiate the principle. On the contrary, the Court found it necessary to show that any disadvantaging from segregation was produced not by state law, but by the “choice” of those who construed it as a form of disadvantaging. Hence the fault of Plessy lay not in 2 See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale LJ 421 (1960). 3 See Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L Rev 885 (2002). The institutional turn has many strands and can be found in many places. See, e.g., Gerald Rosenberg, The Hollow Hope (1993) (emphasizing limitations of courts in producing social change); Mark Tushnet, Taking the Constitution Away from the Courts (1999) (raising doubts about judicial review); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996) (emphasizing common law approach toward Constitution). For my own views, see Cass R. Sunstein, One Case At A Time (1999). 4 Id. at 421. 5 Id. 6 163 US 537 (1896).

From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma

On its fiftieth anniversary, Brown v. Board of Education no longer enjoys the unbridled admiration it once earned from academic commentators. Early on, the conventional wisdom was that the courageous social engineers from the National Association for the Advancement of Colored People Legal Defense and Educational Fund (naacp ldef), whose inventive lawyering brought the case to fruition, had caused a social revolution. Legal academics and lawyers still widely acclaim the Brown decision as one of the most important Supreme Court cases in the twentieth century, if not since the founding of our constitutional republic. Brown's exalted status in the constitutional canon is unimpeachable, yet over time its legacy has become complicated and ambiguous.1 The fact is that fifty years later, many of the social, political, and economic problems that the legally trained social engineers thought the Court had addressed through Brown are still deeply embedded in our society. Blacks lag behind whites in multiple measures of educational achievement, and within the black community, boys are falling further behind than girls. In addition, the will to support public education from kindergarten through twelfth grade appears to be eroding despite growing awareness of education's importance in a knowledge-based society. In the Boston metropolitan area in 2003, poor people of color were at least three times more likely than poor whites to live in severely distressed, racially stratified urban neighborhoods. Whereas poor, working-class, and middle-income whites often lived together in economically stable suburban communities, black families with incomes above $50,000 were twice as likely as white households earning less than $20,000 to live in neighborhoods with high rates of crime and concentrations of poverty. Even in the so-called liberal North, race still segregates more than class. Gerald N. Rosenberg, emphasizing the limited roles courts can generally play, bluntly summed up his view of Brown's legacy: “The Court ordered an end to segregation and segregation was not ended.” If Brown was a decision about integration rather than constitutional principle, Mark Tushnet observed in 1994, it was a failure.2

Book Reviews

Books reviewed:Reza Banakar, Merging Law and Sociology: Beyond the Dichotomies in Socio‐legal ResearchHelen Reece, Divorcing ResponsibilityKeith Hawkins, Law as Last Resort: Prosecution Decision Making in a Regulatory AgencyMark Tushnet, The New Constitutional OrderBrendan Edgeworth, Law, Modernity: Legal Change in the Contracting State

The State of Constitutional Theory in U.S. Law Schools in the 2000s

The State of Constitutional Theory in U.S. Law Schools in the 2000s Mark Tushnet (bio) For a period running from the late 1960s to the early 1990s, constitutional theory in U.S. law schools dealt almost entirely with constitutional interpretation by the courts. Legal scholars' obsession with interpretive theory arose from the political circumstances of their scholarship. Conservative legal activists cast their challenge to the Warren Court's liberal decisions not (simply) in terms of disagreement with the results, but in terms of the illegitimacy of the interpretive techniques the Warren Court used. According to conservatives, the only method of constitutional interpretation that could confer legitimacy on the Court's decisions was one that focused almost entirely on the original meaning or understanding of the Constitution's words.1 The Warren Court (and then the Burger Court, to their dismay) did not follow the conservatives' prescription. Liberal constitutional theorists developed two responses to the conservative challenge.2 First, they directly took originalism on. One popular argument was that originalists could not provide a decent account of how the understandings held by individuals were aggregated into a single understanding that later courts could apply. Another was that originalist examinations of particular provisions were typically extremely simple-minded, of a sort derided by historians as "law office history." The liberals were attracted to the argument that serious examination of the framing era disclosed an extremely complicated intellectual universe, riven by serious conceptual disagreements that went to the proper understanding of particular constitutional provisions. In light of those disagreements, liberals said, there simply was no original understanding that later courts could apply. A third popular response to conservative originalism emphasized the impossibility of directly applying original understandings to changed circumstances. Instead, liberals argued, courts today should invoke the values that underlay the Constitution's provisions to see how contemporary statutes measured up against those values. The liberals' second response to conservative originalism was to develop alternative interpretive approaches that, they argued, made judicial decisions legitimate. Two such approaches were particularly attractive. The first was John Hart Ely's revival and rearticulation of the "Carolene Products footnote 4" approach. Under that approach, courts were to identify and rectify obstructions in the processes of democratic representation, and then stand aside. According to Ely, this approach reconciled vigorous judicial review — within its proper domain — with democratic self-governance, by using the courts to purify the processes of democratic representation without supervising the outcome of truly democratic processes. The second popular approach was Ronald Dworkin's invocation of moral and political philosophy to interpret the Constitution's rights-protecting provisions, which, after all, did use terms familiar to philosophers. The disputes between the liberals and the conservatives became increasingly arcane. Conservatives acknowledged that some constitutional provisions were understood when adopted to refer to somewhat abstract rights, but criticized liberals for manipulating the level of generality on which they interpreted those provisions and rights. They modified their position to deal with the problem of aggregation, but claimed that revised originalist approaches remained plausible. Liberals acknowledged that American political traditions required recourse to some sort of originalism to justify judicial interpretations, but insisted that such recourse need not be as rigid as conservatives insisted. Eventually the fights over originalism petered out in the law schools, though they remained important in the rhetoric of conservative political activists who focused on the courts. Conservatives discovered that the Rehnquist Court did well enough by their lights without adopting a purely originalist approach, and indeed did so by deploying some of the techniques conservatives criticized when liberals used them.3 The legal academy generally concluded that there was something wrong with an analysis that led to the conclusion that essentially all of the Supreme Court's work in the twentieth century, if not before, was somehow illegitimate. It was hard to say that the Court's decisions lacked democratic legitimacy in a world where the Court's decisions were routinely endorsed by the American public. In the end, constitutional theorizing in U.S. law schools about constitutional interpretation ended with the acknowledgement that the Court in fact deployed a number of interpretive approaches, and properly so. Originalism of some sort — at least...

“We Return Fighting”: The Civil Rights Movement in the Jazz Age. By Mark Robert Schneider. (Boston: Northeastern University Press, 2002. xii, 476 pp. $35.00, ISBN 1-55553-490-2.)

As the civil rights movement reached its crescendo, fractured, and ebbed in 1967, Charles Flint Kellogg published a history of the National Association for the Advancement of Colored People (naacp) in its first decade. His plan for succeeding volumes on the naacp went unfulfilled. The title of Mark Robert Schneider's “We Return Fighting” is misleading in several ways, but it takes up the naacp story where Kellogg ended. This is a history of the naacp in the 1920s. An account of the “movement” in that decade would need, at least, to include the work of the National Urban League, African American denominations, black student movements, and black clubwomen. Since Kellogg's death, however, we have needed a successor to his first volume, and this may be it. Schneider traces many stories that are familiar territory for specialists because they are told in important monographs by James Anderson, Fitzhugh Brundage, David Chalmers, Richard Cortner, Pete Daniel, Kenneth Goings, James Grossman, Jacquelyn Dowd Hall, Darlene Clark Hine, Kenneth Kusmer, Gilbert Osofsky, Mark Solomon, Joe William Trotter, Mark Tushnet, William Tuttle, Nancy Weiss, George Wright, and Robert Zangrando and biographies by Jervis Anderson, Sheldon Avery, Dickson Bruce, William Hixson, David Lewis, Arnold Rampersad, Joyce Ross, and Carolyn Wedin. To his credit, Schneider's history of the naacp in the 1920s draws both on intense research in primary sources, the naacp Papers and contemporary African American and white newspapers, and an expansive reading in this rich secondary literature.

Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–85

Using the racial integration of national labor unions as a case study, I find that courts played an important and meaningfully autonomous role in integrating unions while elected officials largely failed to act. Courts, unlike elected officials, offered civil rights groups relatively easy access to the legal agenda. In response to thousands of cases in federal courts, judges rewrote key civil rights statutes, oversaw the implementation of their rulings, and used attorneys' fees and damage awards to impose significant financial costs on resistant unions. Court power was the product of multiple and historically contingent forces that involved the interaction of elected officials, civil rights activists, and the legal community. Elected officials delegated to the courts the power to enforce civil rights laws and tacitly endorsed procedural changes that augmented the courts' institutional powers and the legal community's professional influence. In response, judges and lawyers promoted and implemented a civil rights agenda far beyond the endorsement of elected officials. An historical–institutional approach helps explain how courts achieved and wielded independent power and the consequences of their action for civil rights, labor unions, and the American state.Thanks for very helpful comments go to Amy Bridges, Kerstin Carlson, Malcolm Feeley, Beth Garrett, Howard Gillman, Mark Graber, Jeff Haydu, David Karol, Ken Kersch, David Mayhew, Jim Morone, Shehzad Nadeem, Ruth O'Brien, Corey Robin, Pam Singh, John Skrentny, Mark Tushnet, Rick Valelly, Keith Whittington, Janelle Wong, the APSR reviewers, and Lee Sigelman. The University of California's Institute for Labor and Employment provided generous financial assistance.

Constitutional courts in comparison: the U.S. Supreme Court and the German Federal Constitutional Court

Foreword (second edition) Ralf Rogowski and Thomas Gawron Foreword (first edition) Mark Tushnet List of Illustrations List of Tables Chapter 1. Constitutional Litigation as Dispute Processing - Comparing the U.S. Supreme Court and the German Federal Constitutional Court Ralf Rogowski and Thomas Gawron PART I: ACCESS AND CASE SELECTION Chapter 2. Constitutional Litigation in the United States Robert A. Kagan and Gregory Elinson Chapter 3. Access to the German Federal Constitutional Court Werner Heun Chapter 4. Mobilization of the German Federal Constitutional Court Erhard Blankenburg PART II: DECISION MAKING Chapter 5. The U.S. Supreme Court's Strategic Decision Making Process Timothy Johnson and Maron Sorenson Chapter 6. Decision making at the German Federal Constitutional Court Uwe Kranenpohl Chapter 7. Junior Varsity Judges? Law Clerks in the Decisional Process of the U.S. Supreme Court Artemus Ward Chapter 8. The Legal Assistants at the German Federal Constitutional Court: A Black Box of Research? Otwin Massing PART III: IMPLEMENTATION Chapter 9. The Implementation of U.S. Supreme Court Decisions Lawrence Baum Chapter 10. Implementation of German Federal Constitutional Court Decisions - Judicial Orders and the Federal Legislature Thomas Gawron and Ralf Rogowski PART IV: COMPARATIVE PERSPECTIVES Chapter 11. The U.S. Supreme Court and the German Federal Constitutional Court - Selection, Nomination and Election of Justices Klaus Stuwe Chapter 12. The Impact of the German Federal Constitutional Court on Consolidation and Quality of Democracy Sascha Kneip Chapter 13. Constitutional Courts in Changing Political Systems Hans J. Lietzmann List of Contributors Index

Leaving the Empty Vessel of 'Republicanism' Unfilled: An Argument for the Continued Non-Justiciability of Guarantee Clause Cases

Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign affairs and in cases raising claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for deciding Guarantee Clause claims - that the Guarantee Clause is not a repository of judicially manageable - has failed to hold up in the face of the Court's development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.

Protecting Human Rights in a Democracy: What Role for the Courts?

A growing number of democracies have empowered their judiciaries to enforce constitutional norms, many of the most important of which are human rights norms that, as articulated, serve principally to limit the power of government. The Constitution of the Republic of South Africa (1996) provides a recent important example of such judicial empowerment. This "global expansion of judicial power" - which has been called "one of the most significant trends in late-twentieth and early twenty-first-century government" - has led, in the view of some commentators, to "the judicialization of politics". Some prominent legal scholars - most notably, Mark Tushnet and Jeremy Waldron - have recently argued that such government by judiciary, especially American-style judicial review, subverts the democratic ideal of government by the people and is therefore deeply problematic. Less prosaically, the claim is that government by a politically independent judiciary subverts the democratic ideal of government by the politically dependent, because electorally accountable, representatives of the people.The question is more broadly relevant than ever, therefore, whether it is appropriate for the citizens of a liberal democracy to cede to their courts the power to oppose, in the name of one or more entrenched human rights norms, choices made by, or actions of, electorally accountable government officials. In pursing this inquiry, two other, related questions inevitably emerge: If some power to protect entrenched human rights should be ceded to the courts, how great ought that power to be in relation to the power of the other, electorally accountable parts of government? And in exercising the power ceded to them - a power to pass judgment on the choices and actions of electorally accountable government officials - should the courts defer as much as possible to those officials, or to some of them; or, instead, should the courts abjure such deference?This article was my contribution to a symposium at Wake Forest University School of Law celebrating of the 200th anniversary of Marbury v. Madison (1803).

Cultivating Humanity in Legal Education

t Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago, appointed in the Law School, Philosophy Department, and Divinity School; Associate in the Classics Department, Affiliate of the Committee on Southern Asian Studies, member of the Board of the Human Rights Program, Coordinator of the Center for Comparative Constitutionalism. I am grateful to Eric Posner, Richard Posner, and Cass Sunstein for helpful comments on a previous draft, and to Jose Alvarez, Jeffrey Lehman, Anne-Marie Slaughter, and Mark Tushnet for helpful advice and information. 1 Hans Reiss, ed, Kant: Political Writings 107-08 (Cambridge 2d ed 1991) (H.B. Nisbet, trans). I alter Nisbet's translation of Recht from right to law. Here as elsewhere, Kant uses Recht to translate Latin ius, frequently including the Latin in parentheses after the German. Often he alludes to classical ideas of natural law, ius naturae. Kant's continuity with Cicero, Seneca, and other Roman authors can best be appreciated if we bear these facts in mind. 2 United Nations Development Programme, Human Development Report 2000 9 (Oxford 2000). 3 All translations from Seneca's Latin are my own. The best edition of the Latin text of De Ira (On Anger) is in Seneca, Dialogorum Libri Duodecim 39-128 (Oxford 1977) (L.D. Reynolds, ed). An English-language version may be found at Seneca, On Anger, in Seneca, Moral and Political Essays 17,116 (Cambridge 1995) (John M. Cooper and J.F. Procope, eds). 265