Mark Tushnet


Any author would be pleased at having his or her work taken as seriously as mine has been by the contributors to this Symposium. As I wrote in Taking the ConstitutionAway from the Courts, my aim was not so much to place on the table a serious policy proposal-elimination of judicial review-but rather was to broaden a discussion about constitutionalism and judicial review that has been far too narrow. For a decade or more, constitutional theory and theorists have been overly concerned with questions about constitutional interpretation that are the legacy of controversies over the Warren Court's liberal activism. The advent of a new constitutional era, characterized in part by conservative judicial activism, makes it possible for someone with my political inclinations to pay attention to the more fundamental questions of constitutionalism that I sought to raise in Taking the Constitution Away from the Courts. Most contributors to this Symposium agree that the questions I raise are worth more discussion than they have received from most constitutional theorists. Most disagree with my answers to some of the questions. But their engagement with my argument advances the goal of discussing them, and that is more than I could fairly have hoped for when I wrote the book.