Mark Tushnet, spurred by thoughts stewing for at least a decade, proposes a new conception of constitutional law, one in which the Supreme Court is removed as the paramount authority on constitutional issues and replaced with the legislature: "populist constitutional law."



Early chapters examine and argue against the current foundations of judicial supremacy. For each typical argument, usually accompanied with a corresponding article or book that has defended the position, the author provides reasons to be skeptical. In so doing he reveals a complex understanding of human behavior and the incentives that affect it. He appreciates the dynamism of human institutions: just because an actor acts thus now, does not imply he will act similarly with different sets of incentives.



As grist he uses cases, some hypothetical, and examines their intricacies. What is the preferred result, and how certain are we that the current system fosters that result and an alternative would not?



After weakening the foundation for the current system, he examines the role of religion in political discourse, drawing heavily on Rawls and his interpreters. His point in so doing is not exactly clear: that religion is important is a fair point to make, but why the legislature and not the courts should be the branch to incorporate it is not answered.



In chapter five, the author discusses whether or not the Constitution, specifically in its "thin" version (the ideals of the Constitution, as opposed to its structure), is self-enforcing. The political system is a complex process, and Tushnet's argument tracks that process roughly with divergent, branching commentary. He concludes, honestly, with a set of conditions that would need to be met to make populist constitutional law attractive.



He then goes on to strike his first partisan note(I believe it is within this chapter that Professor Tushnet labels abortion protestors as "anti-choice," not "pro-life"), by assessing from a liberal perspective the recent incarnations of judicial review. Liberals who place their faith in the Court have overestimated their winnings for several reasons: 1. political reaction is often swift and contrary, 2. the Court oftentimes simply feels out already existing democratic impulses. Ultimately, he dismisses the Court as being, at best, marginally detrimental to liberal causes.



Chapter seven investigates a hypothetical world without judicial review. How would other political institutions react and grow? And what role, if any, would or should be left for the courts? None, Tushnet seems to conclude. Having tipped his toe into partisan waters in the preceding chapters, the author begins to wax liberal at the close of the chapter, addressing first critical legal studies' bête noire-rights rhetoric-and its support amongst critical race theorists. He dismisses the issue as tangential to the topic at hand, and concludes with a brief of appraisal of how to make populist constitutional law come about.



Chapter eight is dedicated to refuting liberal arguments for judicial review and a meditation on the universalism of human rights, along with the humble observation that the author can't predict what policies populist constitutional law would bring about.



The author's argument is decidedly spongy-I suspect it could have been condensed into a much smaller space with no substance lost. Halfway through the book, I predicted that the author would have a harder time building up a case for populist constitutional law than attacking the foundations of judicial review. I was wrong: the author, beyond a few mystical paragraphs describing populist constitutional law as a way of "creating our own constitutional narrative" builds no case at all. Perhaps he fails to do so because the case has been made elsewhere-if so, I haven't read it. Perhaps he's simply opening our eyes to the possibility of populist constitutional law. Perhaps, the skeptic would say, the case is not there to be made. Or perhaps Professor Tushnet is counting on there being some priors in his reader that I lacked: a love of the concept of populism, or an unbridled enthusiasm for pure democracy. Indeed, by chapter six, it became clear that I was not the book's intended audience. (In fact, the reader is explicitly told to fear a Supreme Court that acts in a libertarian manner, with the only reason given being that libertarianism is not liberalism.)



But then again, perhaps that is all there is to offer. The author quite clearly states that he cannot predict what results will come from populist constitutional law: conservative or liberal results are possible.



So as it turns out the book is entirely an argument against judicial review, not for populist constitutional law. This is also somewhat paradoxical, as the author also points out that the effect of judicial review is quite slim taken with democratic processes. Which only leads us to wonder, quite rightly, why bother changing the system? Transition is not costless after all, and without any large benefit in store for us, why go through the trouble? In his critique of the liberal case for judicial review, the author's argument is that we won't miss it, because it doesn't really have that much of an effect: effectually negating his own cause in the process.



Tushnet argues against those who base their theory of judicial review by arguing that if only the judges were the right judges then judicial review would be worthwhile. That's true enough, but of course the author rests his own argument-explicitly-on an equally tentative footing: the end of chapter five delineates his own if-then argument. If only the people "were able to free ourselves for our obsession with courts" "then we would fine that the idea of a self-enforcing Constitution describes an attractive way of distributing constitutional responsibility throughout the government."



Is his if statement more likely to be fulfilled than that of the judicial review opponents'? Or are both arguments similarly utopian? My guess is the latter.



Whatever the chances that we be able to free ourselves from that obsession, the author goes on to shoot himself in the foot by describing judicial review as ultimately having conservative, not liberal results, which gives half of the polity a good reason to oppose abandoning the current institution. If the author is right that judicial review tends to have such results, my guess is it will be as easy to convince conservatives to abandon judicial review as it is to convince liberal judges to adopt an originalist constitutional philosophy.



I read the book waiting for an argument that never came. It was interesting, at times fascinating, and often profound. It was not persuasive.