Tushnet Brings a Scholarly Slant to Presidency of AALS

Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, has been appointed president for the 2004 term of the Association of American Law Schools, an association of 165 law schools representing more than 8,000 law faculty and staff nationwide. Tushnet is a noted scholar in critical legal studies, constitutional law, and the emerging field of comparative constitutional law. His central scholarly contribution has been to challenge institutions of the modern liberal state. His approach is decidedly deconstructive rather than Marxist, a stance he attributes partly to the influence of Yale Law Professor Jan Deutsch, under whom he studied in the early 1970s. Shortly after his recent appointment, Georgetown Law interviewed Professor Tushnet about the relation of his work as a scholar to his presidency of the AALS.

     Georgetown Law: How does the AALS decide who should be its next president?
     Tushnet: The president represents some feature of the AALS that the nominating committee thinks important to stress. There have been presidents oriented to issues of diversity in the academy and those oriented to public service as part of the mission of legal education. I’m oriented to scholarship as part of the enterprise.
     Georgetown Law: Could you describe your previous experience or services with the AALS?
     Tushnet: I have been involved in a fair number of its activities. I’ve served on the editorial board of the Journal of Legal Education, chaired one of the sections, and chaired the membership review committee, which is how the board of the AALS assesses whether schools are satisfying the membership requirements.
     Georgetown Law: What do you bring to the AALS from your position as a scholar?
     Tushnet: Since it’s a one-year term, not a whole lot can be accomplished besides a certain kind of modeling of the association and some initiatives. I’ve selected the annual meeting’s speaker, Tom Jackson, who is president of the University of Rochester, to talk about the role of the law school in the research university. For some of the programming I’ve included distinguished scholars of law and of allied disciplines, including historians, a social psychologist, a sociologist, and others. The idea is to show law professors how people in other disciplines think, how they phrase questions, and how they approach answers. I’ve always been interested in the allied disciplines. I think of myself as a historian as well as a legal scholar and I’ve written books that historians as well as law professors read.
     Georgetown Law: Why did you go to law school?
     Tushnet: My decision to go to law school took place one Saturday morning when I just threw out the political science applications. I was interested in law for sort of deep psychological reasons, but the question was what approach to take to it. As an undergraduate at Harvard, I’d had terrific courses with political scientists and with law professors teaching introductory courses, including Robert McCloskey and Paul Freund.
     I always knew that in legal scholarship, I was going to go in the Constitutional Law direction. I do legal doctrinal analysis better than anything else.
     Georgetown Law: At that time in legal scholarship, was there much theorizing about texts?
     Tushnet: “Critical legal theory” was not even a phrase used in those times. But a seminar at Yale with Jan Deutsch opened my eyes. This year, at the Charles Black colloquium [see accompanying article], Georgetown Law Professor Gary Peller and I gave a paper in which we looked at Deutsch’s work. Rereading it for the first time in a long time, I began to realize the connection between his scholarship and what I got out of his class: the deconstruc-tive view of legal texts. Harvard Law Professor Duncan Kennedy, who also engages this view, was also a student at Yale in the ‘70s.
     From this deconstructive view emerged the critical legal studies group in 1976, which included Kennedy and Morton Horwitz, who were junior professors at Harvard Law, and Dave Trubek and myself, who were teaching at the University of Wisconsin. Critical legal studies, at least in the form it took in the 1970s,
is generally labeled a deconstructive critique of rights which challenges Warren Court liberalism from the left. Within it, there is an argument that, whatever analysis you might make of any court decision, in observing the system you see a tilt in favor of those in power.
     Georgetown Law: How have you applied critical legal studies in your career?
     Tushnet: The main line of my scholarly career has been dealing with the critique of rights and challenges to it. A major challenge has come from African-American scholars. I have considered the work of the National Association for the Advancement of Colored People from the scholarly agenda of critical legal studies, trying to make sense of the successes of the rights-based legal strategies of the NAACP on behalf of African Americans. I published this as The NAACP’s Legal Strategy Against Segregated Education, 1925-1950 in 1987. The next step in that critique was Taking the Constitution Away from the Courts in 1999.
     Georgetown Law: In the latter book, you outline the distinction between the “thin constitution” and “thick constitution.” Could you review those terms for our readers?
     Tushnet: The “thin constitution” is the set of deep but pretty abstract normative commitments of the American people over the course of our history. Because these commitments are abstract, there is a great deal of controversy about what they mean in any particular context. But because they are deep and normative, they matter a lot. Precisely because they matter a lot, they ought to be the subject of our democratic deliberations rather than the solutions being chosen for us by the courts.
     The “thick constitution” is the set of the details about the apportionment of theU.S. House of Representatives, for example, and other rules for the organization of government. These details are important, but not a matter of deep normative concern: resolution of cases about them is not going to entertain anything deep about the nature of our country. It doesn’t matter to me that the Supreme Court enforces this “thick constitution”; what I challenge is the Court’s attempts to enforce our “thin constitution.” In the book, I end up imagining the Supreme Court saying, “We’ve been doing judicial review for 200 years, it’s time to stop,” and then it would be up to the rest of us – the rest of the people in the country – to decide what the Constitution means. My attitude is that resolving what the Constitution means in any final way is impossible, and that democracy flourishes when we can continually decide it for ourselves. A significant portion of my position is just to push the argument, just to get it out on the table, which appears to have been successful. That book probably has the most readership of any of mine. I assign it now in my seminar in Constitutional Theory and teach its basic argument in Constitutional Law II.
     Georgetown Law: How does the book’s argument intersect with the idea that democracy works best when people are educated and that such education can be helped along by a conscientious, or even “activist,” judiciary?
     Tushnet: I think there is a central role for civic education in this process of how people come to understand the United States over time – how the “thin constitution” is formed. And I think that sort of education does require leadership; I believe the elite have certain kinds of roles that help democracy work effectively. I actually think that lawyers are important to that. In every constitutional law course I teach, I say early on, “The point of this course is to help you function as civic leaders, not just as practicing lawyers.” But it is not clear to me that coercive judgments by such leaders are the way to go – that is judicial review in its classic form.