Why the Constitution Matters

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.

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.

Library Journal

Instead of the usual examination of how the Constitution is the blueprint for American democracy, Tushnet (William Nelson Cromwell Professor of Law, Harvard Univ.; A Court Divided) discusses how the structure of the Constitution has influenced our politics. He first notes that the Constitution's role as the foundation of our democracy is not its most important one. For instance, with the current debate over health-care reform, he points out the many extra-constitutional factors affecting legislation. The American political system, Tushnet notes, is largely controlled at the state level, where election rules are set and fund-raising takes place, activities that are not spelled out in the Constitution. Tushnet next turns to the Supreme Court's effect on the Constitution, indicating again that politics, such as that involved in judicial selection and the deciding of cases, has more impact on the Court than the outlines of the Constitution itself. He also points out here that Supreme Court justices, as life appointees, are less affected by politics than are members of Congress. The third chapter is very brief, summarizing the points of the book and suggesting ways that the Constitution can matter more. VERDICT Although Tushnet's premise is interesting, his book can be hard to follow because of the number of points he attempts to discuss briefly. Each of his topics needs to be covered more fully to be clear. While his book may be useful to prelaw and law students, it is not recommended for others.—Becky Kennedy, Atlanta-Fulton P.L., GA

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard University. A graduate of Yale Law School, he served as law clerk to Justice Thurgood Marshall and now specializes in constitutional law and theory, including comparative constitutional law. He lives in Washington, DC.