Louis Michael Seidman (Georgetown University Law Center) has posted Can Constitutionalism Be Leftist on SSRN. Here is the abstract:
In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet's effort to defend popular constitutionalism in his powerful and subtle book entitled "A Taking the Constitution Away from the Courts," I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist. And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet's proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.
And a bit from the text:
If I have correctly identified Tushnet's strategy, he imagines that somehow the people who presently hold power can be tricked into relinquishing it by the claim that populist constitutionalism is politically neutral. Even if they are so convinced, however, that accomplishment at best eliminates one strand of conservative opposition. It does nothing to change America=s baseline infatuation with courts.45 Moreover, it is always a mistake to imagine that our opponents are stupid. For reasons outlined above, I have doubts that populist constitutionalism tilts leftward, but assuming arguendo that it does, conservatives are just as able to perceive the tilt as progressives. Why, then, would they agree to it?
Oddly, Tushnet makes the same mistake in this regard that he accuses his opponents of making. Like his opponents, he starts by imagining a political alignment where his proposal would be plausible. But if there were such an alignment, the proposal would not be necessary in the first place.
Highly recommended!
