Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. His important works in the field of comparative constitutional law include Advanced Introduction to Comparative Constitutional Law (2014), The Routledge Handbook of Constitutional Law (co-edited, 2012) and the leading handbook, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2009).
Madhav Khosla is currently a PhD candidate at the Department of Government at Harvard University, Massachusetts. He is the author of The Indian Constitution (2012) and is currently co-editing the Oxford Handbook of Indian Constitutional Law.
Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Tushnet urges that we create a "populist" constitutional law in which judicial declarations deserve no special consideration. But he warns that in so doing we must pursue reasonable interpretations of the "thin Constitution"--the fundamental American principles embodied in the Declaration of Independence and the Preamble to the Constitution. A populist Constitution, he maintains, will be more effective than a document exclusively protected by the courts. Tushnet believes, for example, that the serious problems of the communist scare of the 1950s were aggravated when Senator Joseph McCarthy's opponents were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional. Instead of fulfilling the expectations, the Court allowed McCarthy to continue his crusade until it was ended. Tushnet points out that in this context and in many others, errors occurred because of the existence of judicial review: neither the People nor their representatives felt empowered to enforce the Constitution because they mistakenly counted on the courts to do so. Tushnet's clarion call for a new kind of constitutional law will be essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.
Harvard Law School professor and constitutional law expert Mark Tushnet clarifies the lines of conflict and what is at stake on the Supreme Court as it hangs “in the balance” between its conservatives and its liberals.
Clear and deeply knowledgeable on both points of law and the Court’s key players, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court. Covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court, In the Balance is a must-read for anyone looking for fresh insight into the Court’s impact on the everyday lives of Americans.
The book is split into four parts for ease of reference:
Part One: General issues "sets issues of constitutional law firmly in context including topics such as the making of constitutions, the impact of religion and culture on constitutions, and the relationship between international law and domestic constitutions.
Part Two: Structures presents different approaches in regard to institutions or state organization and structural concepts such as emergency powers and electoral systems
Part Three: Rights covers the key rights often enshrined in constitutions
Part Four: New Challenges - explores issues of importance such as migration and refugees, sovereignty under pressure from globalization, Supranational Organizations and their role in creating post-conflict constitutions, and new technological challenges.
Providing up-to-date and authoritative articles covering all the key aspects of constitutional law, this reference work is essential reading for advanced students, scholars and practitioners in the field.