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.
Constitution matters for the next decades will have to take them into account. It’s worth emphasizing that all these innovations were not “natural.” They required institutional creativity by astute politicians. Those who innovate early gain important advantages. Eventually, though, pretty much everyone catches on, and the overall party structure changes. Congress, the presidency, and party structure: these are what matter most to most of us most of the time, because these are what produce the
third party then nominates as its candidate one of the major party candidates, with that candidate’s permission. The candidate’s name appears twice on the ballot, once for the major party and once for the third party. When the votes are counted, though, election officials ignore the party label and add up the votes for the candidate. Fusion candidacies are good for third parties because they can show the public—and the leaders of the major parties—that voters might like a particular candidate but
for campaigns takes time that our politicians could better spend on developing good public policy. Moralists might say that we spend “too much” on political campaigns, just as they might say that we spend too much on fast food. Maybe we can make sense of the idea of spending too much on fast food by pointing out that eating too many Big Macs leads to obesity. It’s not clear what harm there is from listening to too many campaign commercials, though. Perhaps some sort of generalized disillusionment
precedent had been accumulating by the time he cast his later votes, and deference to established law might explain the apparent change in his constitutional views. Against the idea that new experiences help change minds is the fact that Supreme Court justices aren’t spring chickens. They’ve already had a lot of experiences, undoubtedly the kinds that had shaped their understanding of the Constitution’s meaning. Give them a new experience, though, and the chances are they’ll ignore it or explain
the specific issue of civil rights, where segregationist southern senators could count on at most lukewarm support for civil rights among many Republican senators). These fears diminished as the parties became ideologically coherent. To overstate it a bit: No Republican senator is going to vote for a Democratic initiative anyway, so why worry about annoying the Democrats by filibustering everything? Discovering the Constitution’s role in promoting partisan ideological coherence is difficult, as