Overview

A leading legal scholar asks a fundamental question: Do we need a theory of constitutional interpretation? Do we need a theory of constitutional interpretation? It is a common argument among originalists that however objectionable you may find their theory, at least they have one, whereas their opponents do not have any theory at all. But as Mark Tushnet argues, for most of the Supreme Court's history, including some of its most exceptional periods, the Court operated without a theory. In this book, Tushnet shows us what a constitutional theory actually is; what judges need from it and why they probably can't get what they need; and the great harm that results when judges allow theory to dictate bad policy. It is not theory that matters, Tushnet argues. The vitally important, indispensable quality in a judge is good judgment.

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9780300277012

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Reviews

“Professor Tushnet has skillfully and straightforwardly called out the myth of originalism and the rabbit hole of judicial philosophies. For lawyer and non-lawyer alike, this book helps set the course to restore the legitimacy of our judiciary.”—Russ Feingold, president, American Constitution Society

“Professor Tushnet has skillfully and straightforwardly called out the myth of originalism and the rabbit hole of judicial philosophies. For lawyer and non-lawyer alike, this book helps set the course to restore the legitimacy of our judiciary.”—Russ Feingold, president, American Constitution Society “Mark Tushnet, one of the nation’s most distinguished constitutional scholars, thinks constitutional theory is overrated. Debating who has the best theory, he explains, is far less important than paying attention to how judges actually judge. Despite its title, this book is a love letter to judgment—reasoned judgment expressed through sound judicial craft.”—Jack Balkin, Yale Law School

Author Information

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus at Harvard Law School. He is the author of more than a dozen books, has edited eight others, and has written numerous articles on constitutional law and legal history.

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