Why the Constitution Matters (Why X Matters Series)
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In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties—not Supreme Court decisions—are the true engines of constitutional change in our system. This message will empower all citizens who use direct political action to define and protect our rights and liberties as Americans.
Unlike legal scholars who consider the Constitution only as a blueprint for American democracy, Tushnet focuses on the ways it serves as a framework for political debate. Each branch of government draws substantive inspiration and procedural structure from the Constitution but can effect change only when there is the political will to carry it out. Tushnet’s political understanding of the Constitution therefore does not demand that citizens pore over the specifics of each Supreme Court decision in order to improve our nation. Instead, by providing key facts about Congress, the president, and the nature of the current constitutional regime, his book reveals not only why the Constitution matters to each of us but also, and perhaps more important, how it matters.
of his or her union dues be spent on political activity. Stockholders don’t have an equivalent right. The theory is that a stockholder who doesn’t like what the corporation’s managers are doing with the corporate treasury can simply “exit” the corporation by selling the shares, whereas in unionized workplaces every worker is required to pay union dues. The Supreme Court hasn’t been troubled by the asymmetry it’s created between unions and corporations.38 Here we have arrived at a place where the
that they obtain specific permission from shareholders—even unanimous consent, he has suggested—for expenditures on issue ads and especially express advocacy. His campaign has made no progress, though. 39. The opponents might be insurgents within their own parties, or the candidates who run against them in the general election. 40. Most political scientists who have studied the matter think that negative advertising is particularly effective—and doesn’t seem to have the effect of lowering
1930s and 1940s New Dealers knew about and opposed the use of quotas in employment and education; their mental image of such quotas were restrictions on Jewish employment and admission to elite universities, but they saw the same threat when African Americans promoted boycotts under the slogan “Don’t Buy Where You Can’t Work.” By the 1960s the inheritors of the New Deal’s legacy believed that racial equality meant equality in effect, and so believed that voluntary affirmative action programs were
will generally nod in agreement when I describe disagreements about what our fundamental rights are as reasonable—as long as I make the statements completely abstract.1 But describe as reasonable the disagreement between those who think there’s a right to choice with respect to abortion and those who think there’s a right to life, and the superficial agreement with the abstract proposition disappears. I think that’s unfortunate, but I’m afraid that I haven’t figured out how to help my students
using the other Article V amendment process, which says that Congress “shall call a Convention for proposing Amendment” when the legislatures of two-thirds of the states apply for one. Legal scholars and politicians have raised interesting questions about this process: Must the applications from the states be identical? (Probably not, as long as they’re reasonably consistent with each other.) Can Congress try to limit the subjects the constitutional convention will consider? (It can try, but the