This article will be published in 26 QUINNIPIAC L. REV. 667 (2008)


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.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy their paradoxical and unacknowledged yearning for truth led them, after they “proved” legal science fallible, to social science, Tushnet’s always already failed search is for reason, or at least rationality, and for a type of modesty, at least as much as to justice claims as truth claims, in legal institutions, subjects, and discourses.

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. Engaging with Michael Seidman’s contribution to the symposium, I close the essay in suggesting that when, as in Mark Tushnet’s suggestive orientation to “the Other” just before the end of the essay “Defending Korematsu?,” he sees the Other face to face, he extends an invitation to read in his most recent constitutional law scholarship a resurgence of the orientation to Others that was the ground of his scholarly work, and thus to conclude that one does not have to move from the realm of hermeneutics to that of metaphor, as Seidman suggests is necessary, to identify his commitment to what is paradoxically a certain kind of “thick” constitutionalism, which conceives of it as something more than a bare practice for allocating political power in the nation-state, necessarily implying some ethical engagement between subjects who govern and those who are governed.

That commitment is premised on a “thin constitution” that promises two things. First, that it might shield us and Others from at least the worst excesses of the violence of state tyranny. Second, it encodes what may be cynical rhetoric, aspirational constitutive national text, denial that is admission of the originary national pathology that eats out the nation’s core, or all of these things. That is, a commitment to equality in a nation with a government which Thurgood Marshall called “defective from the start,” founded on chattel slavery and persistently unwilling to address that inheritance from the Founders, a pervasive structural subordination of Others that imbricates its fiber yet.


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Date of this Version

June 2008