Taking the Constitution Away from the Courts by Mark V. Tushnet

By Mark V. Tushnet


Chapter One opposed to JUDICIAL SUPREMACY
Chapter DOING CONSTITUTIONAL legislations open air THE COURTS
Chapter 3 THE query OF CAPABILITY
Chapter 4 THE CONSTITUTIONAL legislation of faith outdoors THE COURTS
Chapter 5 the motivation- appropriate CONSTITUTION
Chapter Seven opposed to JUDICIAL REVIEW

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Sample text

If the courts issued an injunction against Governor Faubus, his disregard of their constitutional interpretations would be open defiance in a way that the prosecutor’s filing charges is not. But it really is not different. After the injunction is issued, Governor Faubus might say, “I don’t care what you say, I’m going to continue to oppose desegregation. ” After the flag-burning prosecution is dismissed, the prosecutor might say, “I don’t care what you say. I’ve sent the police to throw the protestor in jail.

All they can do is withdraw some otherwise relevant considerations from the decision-maker’s ken. Why do that? Perhaps on the ground that the decision-maker’s all-thingsconsidered judgments are less likely actually to promote the people’s welfare than would decisions based on less than all the relevant considerations. And why might that be? Perhaps because the decision-maker, driven by particular interests or incentives, may be particularly prone to misestimate the significance of the consideration the constitution withdraws from her or his ken.

The judges have to articulate rules, standards, or guidelines that will lead those other actors to comply to the greatest degree achievable with the Constitution as understood by the judges. Consider a judge who arrives at an all-things-considered judgment about how a good government should be designed, and an account of how the Constitution is consistent with that judgment. That judge might nonetheless refrain from articulating that judgment as an interpretation of the Constitution. The reason is that in articulating the judgment, the judge is setting out a rule, standard, or guideline that the other actors will follow when similar questions come before them.

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