'No One Does that Anymore': On Tushnet, Constitutions, and Others

Abstract:     
In this contribution to the Quinnipiac Law Review's annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship "against the grain," concluding both that Tushnet's later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

Seeking to make visible the equally characteristic but less assertive orientation to "Others" that runs through Tushnet's work, I use the native title and Chapter III judicial power jurisprudence of the Australian High Court to argue that Tushnet's antijuridification scholarship might be read as a rhetorical gambit to shock left legalism out of what Judith Resnik describes as its "McCleskey problem," its blindness to the local and particular evidence of legal institutions' complicity in structural subordination.

I conclude that a close reading of both Tushnet's contributions to The Constitution in Wartime and his antijuridification jeremiad, Taking the Constitution Away from the Courts suggest his awareness of the need to confront the judges and the courts with their practical responsibility for maintaining constitutionalism.

Keywords: constitutionalism, comparative constitutional law, post-9/11 constitutional law, Felix Frankfurter, Noel Pearson, Justice Michael Kirby, Australian Native Title jurisprudence, Article III judicial power, Chapter III judicial power, critical legal studies, Legal Realism

Accepted Paper Series