Mark Tushnet


The People Themselves develops the idea that constitutional law is a special kind of law, political law. Examining some of the book's reviews, this Article explains how political law can be developed through relatively unstructured interactions among the people, political leaders in Congress and the presidency, and the courts. It argues that understanding how constitutional law as political law is developed requires, not the development of crisp analytic criteria, but close historical analysis of particular interactions. The Article identifies criteria for evaluating how popular constitutionalism compares to judicial review as a mechanism for enforcing constitutional rights, arguing that a serious evaluation requires much more complex analysis than some critics have suggested.

Included in

Law Commons