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“Everything Flows”: Mark Tushnet's Rights Revolution and the Impact of Constitutional Dialogue

Published online by Cambridge University Press:  19 March 2012

Margit Cohn
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Extract

It is my pleasure to contribute to the workshop on Mark Tushnet's manuscript. Good literature is sometimes identified by its ability to elicit responses on different levels. While reading Tushnet's compelling manuscript, my thoughts about the validity of the historical analysis were supplemented by immediate comparisons to the much shorter history of the rise of “rightspeak” in Israel. Then there were some thoughts about the possible links between this manuscript and Tushnet's earlier works and between this manuscript and other studies of the subject. Finally, I found myself linking and comparing Tushnet's implicit normative arguments with my own views on the role of courts in liberal democracy.

Type
Symposium on Mark Tushnet's The Rights Revolution in the Twentieth Century
Information
Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 472 - 482
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Tushnet, Mark, The Rights Revolution in the Twentieth Century (2009) [hereinafter Tushnet, Rights Revolution].Google Scholar

2 See in this issue Tushnet, Mark, Précis, The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 446, 446 (2009) [hereinafter Tushnet, Précis].CrossRefGoogle Scholar

3 Tushnet, Rights Revolution, supra note 1, at 35.

4 Arguably, this is the case in Charles Epp's seminal book on the subject. See Epp, Charles R., The Rights Revolution: Lawyers, Activists, and Supreme Court in Comparative Perspective (1998)Google Scholar.

5 The Global Expansion of Judicial Power (Tate, Neal C. & Vallinder, Torbjorn eds., 1995)Google Scholar; Hirschl, Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004)Google Scholar.

6 Friedman, Barry, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. Cin. L. Rev. 1257 (2004)Google Scholar.

7 HCJ 3094/93 The Movement for Quality in Government in Israel v. The Government of Israel [1993] IsrSC 47(5) 404Google Scholar; HCJ 4267/93 Amitai v. The Prime Minister [1993] IsrSC 47(5) 441Google Scholar.

8 See Tushnet, Mark, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995–1996)CrossRefGoogle Scholar; Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics 21–22 (1962)Google Scholar; Gavison, Ruth, The HCJ Involvement in the Public Sphere: A Critical View, in Judicial Activism: For and Against 69, 106–15 (Gavison, Ruth, Kremnitzer, Mordechai, & Dotan, Yoav eds., 2000) [in Hebrew]Google Scholar; Thayer, James B., The Origins and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 155–56 (1893)CrossRefGoogle Scholar.

9 See in this issue Weill, Rivka, Is it the Right Revolution? On Tushnet's The Rights Revolution in The Twentieth Century, 42 Isr. L. Rev. 483 (2009)CrossRefGoogle Scholar.

10 Tushnet, Rights Revolution, supra note 1, at 4.

11 On the iconic nature of Brown v. Board of Education see, e.g., Bell, Derrick, Silent Covenants 130–1 (2004)Google Scholar; Cf. the debate over the retention of a small “judicial canon” in legal education, e.g., in Balkin, Jack M., Levinson, Sanford, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1997–1998)CrossRefGoogle Scholar.

12 Tushnet, Précis, supra note 2, at 461.

13 For recent studies of this suddenly (and, due to recent events, understandably) popular topic see Mayer, Kenneth R., With a Stroke of a Pen (2001)Google Scholar; Cooper, Phillip J., By Order of the President: The Use and Abuse of Executive Direct Action (2002)Google Scholar; Howell, William G., Power without Persuasion: The Politics of Direct Presidential Power (2003)CrossRefGoogle Scholar; Warber, Adam L., Executive Orders and the Modern Presidency (2006)Google Scholar. For analysis of executive orders in a comparative context see Cohn, Margit, General Powers Of The Executive Branch 214–25 (2002) [in Hebrew]Google Scholar.

14 For a small selection see, e.g., Exec. Order No. 8802, 6 Fed. Reg. 3109 (June 25, 1941) (Reaffirming Policy of Full Participation in The Defense Program by All Persons, Regardless of Race, Creed, Color, or National Origin, and Directing Certain Action in Furtherance of Said Policy); Exec. Order No. 11,063, 27 Fed. Reg, 11527 (Nov. 20, 1962) Equal Opportunity in Housing); Exec. Order No. 11,478, 34 Fed. Reg. 12985 (Aug. 8, 1969) (Equal Employment Opportunity in the Federal Government); Exec. Order No. 13,145, 65 Fed. Reg. 6877 (Feb. 8, 2000) (To Prohibit Discrimination in Federal Employment Based on Genetic Information).

15 See, e.g., Exec. Order No. 10,479, 18 Fed. Reg. 4899 (Aug. 13, 1953) (Establishing the Government Contract Committee); Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961) (Establishing the President's Committee on Equal Employment Opportunity) (containing also provisions regarding discrimination by federal government); Exec. Order No. 11,246, 30 Fed. Reg. 12319, 12955 (Sept. 24, 1965) (Equal Employment Opportunity).

16 See generally, Mayer, supra note 13, at ch. 6.

17 For a list of Federal court challenges to executive orders between 1943 and 1997 see Howell, supra note 13, at 198-201. Only 14 of the 83 cited cases were decided against the President; two of them were subsequently reversed (in addition, one of the decisions for the President was later vacated). For decisions that upheld human rights executive orders see, e.g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971); U.S. v. New Orleans Public Service, Inc., 553 F.2d 458 (5th Cir. 1977); AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979).

18 See in this issue Harel, Alon, The Vices of Institutional Instrumentalism: A Comment on Tushnet, The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 464 (2009)CrossRefGoogle Scholar.

19 Tushnet, Précis, supra note 2, at 447.

20 Tushnet, Rights Revolution, supra note 1, at 56.

21 Bateup, Christine, The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue, 71 Brook. L. Rev. 1109 (2005–2006)Google Scholar.

22 Hogg, Peter, Bushell, Allison, The Charter Dialogue between Courts and Legislators (Or Perhaps the Charter of Rights Isn't a Bad Thing after All), 35 Osgoode Hall L. J. 75 (1997)Google Scholar.

23 Basic Law: Freedom of Occupation, sect. 8, 1994, S.H. 1454.

A provision of law that violates freedom of occupation shall be in effect, even though not in accordance with section 4 [the limitations clause], if it has been included in a law passed by a majority of the members of the Knesset [i.e. absolute majority], which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated herein.

The full text in English, available at http://www.knesset.gov.il/laws/special/eng/basic4_eng.htm (last visited Nov. 15, 2009).

24 Human Rights Act 1998. It would however be incorrect to consider Section 4 without analyzing the impact of Section 3 of the Human Rights Act. The latter authorizes the courts to interpret legislation against its original grain and, to a certain extent, contrary to its wording, and thereby raise the suspected legislation to the level of constitutional legality. This, too, could be considered a form of formal dialogue.

25 See, e.g., Allan, Trevor R.S., Constitutional Dialogue and the Justification of Judicial Review, 23 Ox. J. Legal Stud. 563 (2003)CrossRefGoogle Scholar; Clayton, Richard, Judicial Deference and ‘Democratic Dialogue’: The Legitimacy of Judicia1 Intervention under the Human Rights Act, 1998 Pub. L. 33 (2004)Google Scholar; Hickman, Tom R., Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998, Pub. L. 306 (2005)Google Scholar.

26 See the limited processes available for challenging statutes in the France Constitution (1958 La Constitution, arts. 41 & 61). (Article 41 grants the government the right to challenge the admissibility of a private member Bill on limited structural constitutional grounds; more importantly, but still far from constituting a strong mechanism, Article 61 grants central political players (the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators) the power to challenge the constitutionality of an act prior to its final promulgation. In both cases, the Conseil Constitutionnel is granted exclusive jurisdiction. No striking down of legislation is allowed after the entry of statute into force).

27 Tushnet, Mark, Forms of Judicial Review as Expressions of Constitutional Patriotism, 22 L. & Phil. 353 (2003)Google Scholar.

28 For Bickel's reference to “interplay” between branches and to “responsive readings” engaging both Congress and the court in the context of Brown V. Board of Education see Bickel, supra note 8, at 206.

29 See, e.g., Fisher, Louis, Constitutional Dialogues: Interpretation as Political Process (1988)CrossRefGoogle Scholar; Eskridge, William N., Overriding Supreme Court Statutory Interpretation Decisions 101 Yale L.J. 331 (1991–1992)CrossRefGoogle Scholar; Friedman, Barry, Dialogue and Judicial Review, Mich. L. Rev. 577, 653–80 (1992–1993)Google Scholar; Whittington, Keith E., James Madison Has Left the Building, 72 Chi. L. Rev. 1137 (2005)Google Scholar. For non-U.S. studies see, e.g., Allan, Trevor R.S., Common Law Constitutionalism and Freedom of Speech, in Freedom of Expression and Freedom of Information 17, 22 (Beatson, Jack, Cripps, Yvonne, Williams, David G.T. eds., 2000)Google Scholar; Cohn, Margit, Judicial Activism in the House of Lords: A Composite Constitutionalist Approach, 1 Pub. L. 95, 104–08 (2007)Google Scholar.

30 Harel, supra note 18, at 470.

31 See Eylon, Yuval & Harel, Alon, The Right to Judicial Review, 92 Va. L. Rev. 991 (2006)Google Scholar.

32 See, e.g., Tushnet, Mark, New Forms of Judicial Review and the Persistence of Rights—and Democracy-Based Worries, 38 Wake Forest L. Rev. 813 (2003)Google Scholar.