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In a recent Vox.com interview with Harvard legal scholar Mark Tushnet, Dr. Tushnet presented his ideas to journalist Sean Illing:

Sean Illing

How unusual is it for a liberal democratic system like ours to allow judges to overturn laws outright?

Mark Tushnet

In the modern era, since the middle of the 20th century or so, this has become a pretty common role for courts worldwide. There are important variations in the way countries do it, however. And, in particular, since the late 20th century, constitutional designers and implementers have switched from a US style, where the court has the last word and there is nothing you can do about it, to a system that allows for what legal scholars call a more “dialogic” process — which basically means there’s an interactive process between the court and the legislature.

Sean Illing

And how does that kind of system work?

Mark Tushnet

The idea is that the legislature passes a law, the court says it’s unconstitutional for this or that reason, and then the legislature has an opportunity to respond to the court. In some cases, the legislature will just say, “We understand your reasons, but we disagree with them, and we’re going to go forward with the policy anyway.”

Sean Illing

Do you think we’d be better off if we abolished the Supreme Court in its current manifestation and moved to a more balanced system like the one you just described?

Mark Tushnet

Yeah, I do. I’m a big fan of the dialogic approach.

Dr. Tushnet seems to be concerned about the Supreme Court's unassailable ability to strike down laws. He proposes several other options, as well, for those who don't like the current make-up...but he didn't bring up the recourse that the United States has had since the 1780's: amending the Constitution.

Why is amending the Constitution not part of Dr. Tushnet's toolkit for improving US jurisprudence?

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    The quote here doesn't seem to support your question - there's nothing in the quote to suggest that mending the Constitution is not part of his suggestion. In fact, it'd be the only way to make such a change. Can you clarify what you're looking for? – Bobson Oct 12 '18 at 17:16
  • Are you asking only about this specific scholar or scholars in general? The title is about scholars in general yet the body only talks about this specific scholar. – JJJ Oct 12 '18 at 17:18
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    @Bobson, specifically: the academic proposal is to amend the relationship between courts and legislature. The way we've always done it is to amend the Constitution on individual issues... why wouldn't Dr. Tushnet simply propose amendments to the Constitution that the the courts would uphold, same as we've always done it? – elliot svensson Oct 12 '18 at 17:18
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    @elliotsvensson - Got it. That's a really interesting question to ask of him, but it's very possible that it falls into the "internal motivation" close reason. But I'm sure someone has asked him that, if he's been writing about it for so long... – Bobson Oct 12 '18 at 17:35
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    One possible concern is the extraordinary difficulty of amending the US constitution. A constutional amendment has not been successfully proposed for 47 years or passed for 26 (one truly hoary and relatively uncontroversial amendment was passed in 1992). – Obie 2.0 Oct 12 '18 at 21:46
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There is typically only talk about amending the Constitution when it doesn't favor a particular party. Common examples are when Democrats want to abolish the Electoral College and shift Advise & Consent to the House of Representatives when votes don't go their way, and Republicans wanting to restrict the Judiciary when it's packed with liberal justices. Since the recent division within the U.S. has effectively split the country in two, it would be extremely unlikely that 3/4 of the voting population would agree on anything at this point. Therefore, the futility of something typically gives someone a good reason to not even mention it.

  • Would you put the same motivation (i.e. one or another party doesn't like the Constitution right now) behind this talk of amending our jurisprudence without amending the Constitution per Dr. Tushnet? – elliot svensson Oct 25 '18 at 21:13
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At a guess, because amending the Constitution is both hard and unnecessary under his proposal. It isn't necessary to amend the Constitution if the legislature can simply override it (which brings up the question of why we have a Constitution in the first place, but that isn't quite relevant). It takes two-thirds of both houses and three-quarters of state legislatures to amend, and if you've got that you've got majorities in both houses and can disregard the decision of the Supreme Court (even if the President disagrees, you've got the majorities to override the veto).

  • Under a super-dupermajority allowing such legislative power, I would credit legislature if they did amend the Constitution as a testament to "the right thing to do". – elliot svensson Oct 25 '18 at 21:10
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Because you can't amend the Constitution on a whim. There are only 2 ways to amend the Constitution: the ratification method as mentioned in Article V or a Convention of States. In order for a proposal to be ratified it must pass 2/3 of the House, Senate, and 3/4 of the states. If any part of that falls short it dies. There is no middle ground so no single person can amend the Constitution.

  • I think you misunderstood the question, which is admittedly not as clear as it should be. The question is why he isn't advocating for it to be amended. – Bobson Oct 15 '18 at 22:08
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Another explanation may very well be that the concern of the people holding that position is in part of activist judges.

With activist judges, amending the constitution may not be as easy as one thinks, either because there's always another part of the law to be 'understood' by the judges, or because the interpretation has been hung on an otherwise politically or morally unassailable aspect . This presumably has been seen by the proponents as the happy medium in preventing the judges de facto becoming the legislature and having a constitution. Whether this is a good argument or not is, of course, a matter of politics.

It should also be noted that the function which people expect constitutions to play varies; if it's just to set a character to the country and the proposal is more attractive than it you believe it is to safeguard key values against a majority.

  • Please expand your first sentence by adding "explanation for what" and "that position referring to what"... as it is, I have a hard time reading your answer. – elliot svensson Oct 25 '18 at 22:27

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