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Red, white, and blue : a critical analysis of constitutional law / Mark V. Tushnet.

By: Tushnet, Mark V, 1945- [author.].
Material type: TextTextSeries: JSTOR eBooks.Publisher: Lawrence, Kansas : University Press of Kansas, 2015Edition: [First paperback edition].Description: 1 online resource.Content type: text Media type: computer Carrier type: online resourceISBN: 0700621032; 9780700621033.Subject(s): Judicial review -- United States -- History | Constitutional history -- United StatesDDC classification: 342.7302/9 Online resources: Click here to view this ebook.
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Electronic Book UT Tyler Online
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KF4575 (Browse shelf) https://ezproxy.uttyler.edu/login?url=http://www.jstor.org/stable/10.2307/j.ctt1ch7988 Available ocn911196893

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CHOICE Review

Tushnet (law, Georgetown), author of The American Law of Slavery, 18110-1860 (1981) and The NACCP's Legal Strategy Against Segregated Education, 1925-1950 (CH, Jan '88) has written what will, without doubt, be a controversial and provocative analysis of constitutional theory for years to come. The basic thesis is that "the liberal tradition {{of individualism}} makes constitutional theory both necessary and impossible." Such a theory is necessary under the liberal tradition in that it provides restraints on those in power, legislators and judges alike. Yet, that theory is impossible in that to restrain judges is to leave legislators unrestrained, and to restrain legislators is to leave the judges without restraint. The author examines and finds wanting the many approaches to constitutional theory that have been proposed, including interpretivism or original intent, neutral principles, use of judicial review to strengthen democratic processes, and a judicial review based on moral philosophy. Although Tushnet offers no alternative theory of his own, he does propose an implicit vision of society as a commonwealth based on republican principles of civic-mindedness. Yet, even he concedes that the demise of republicanism in the US and its own inherent shortcomings suggest that "normative conclusions about the present-day institution of judicial review cannot be drawn from the republican tradition." A comprehensive, well-researched, thought-provoking, and highly recommended analysis for all those interested in the current state of constitutional theory. End-of-chapter appendixes are excellent additions. For upper-division undergraduates, graduate students, and faculty. -M. W. Bowers, University of Nevada, Las Vegas

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