Mark Victor Tushnet (born 18 November 1945) is an American legal scholar. He specializes in
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
and theory, including comparative constitutional law, and is currently the
William Nelson Cromwell
William Nelson Cromwell (January 17, 1854 – July 19, 1948) was an American attorney active in promotion of the Panama Canal and other major ventures especially in cooperation with Philippe Bunau-Varilla.
Life and career
He was born and rais ...
Professor
Professor (commonly abbreviated as Prof.) is an academic rank at universities and other post-secondary education and research institutions in most countries. Literally, ''professor'' derives from Latin as a "person who professes". Professors ...
of
Law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
at
Harvard Law School. Tushnet is identified with the
critical legal studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
movement.
Tushnet is a main proponent of the idea that
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
should be strongly limited and that the Constitution should be returned "to the people."
[Mark Tushnet. ''Taking the Constitution Away From the Courts'' (Princeton University Press 1999), pp. 1–11.] In 2020, Tushnet published a book extending his previous writing about judicial overreach concerning the process of judicial review, which he originally started discussing in his 1999 book on this subject.
[''Taking Back the Constitution: Activist Judges and the Next Age of American Law'', Yale U. Press, 2020.]
Career
In 1967, Tushnet received his
A.B.
Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four yea ...
from
Harvard College
Harvard College is the undergraduate college of Harvard University, an Ivy League research university in Cambridge, Massachusetts. Founded in 1636, Harvard College is the original school of Harvard University, the oldest institution of higher lea ...
. He later received an
M.A.
A Master of Arts ( la, Magister Artium or ''Artium Magister''; abbreviated MA, M.A., AM, or A.M.) is the holder of a master's degree awarded by universities in many countries. The degree is usually contrasted with that of Master of Science. Tho ...
in history from
Yale University
Yale University is a Private university, private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the List of Colonial Colleges, third-oldest institution of higher education in the United Sta ...
and his
J.D. from the
Yale Law School
Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & Worl ...
. Tushnet has been a faculty member at the
University of Wisconsin–Madison
A university () is an institution of higher (or tertiary) education and research which awards academic degrees in several academic disciplines. Universities typically offer both undergraduate and postgraduate programs. In the United Stat ...
while he taught for many years at the
Georgetown University Law Center
The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
and has given lectures at
Duke University.
Tushnet served as a
law clerk to Justice
Thurgood Marshall
Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
of the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
between 1972 and 1973. In a 1996 congressional hearing on President
Bill Clinton
William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
's veto of the
, Tushnet testified about his involvement in ''
Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'', the 1973 case that struck down state laws prohibiting abortion. During questioning it was alleged that a memorandum written by Tushnet to Marshall had a significant influence on the outcome of the case. More recently, he commented on the power of the president to pardon himself, composition of the Court, and the retirement of Justice
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
. He is also widely quoted in the press as an expert on the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
right to free speech and the scope of presidential powers. In 2016, Tushnet was listed among the ten most frequently cited law professors.
One of the more controversial figures in constitutional theory, he is identified with the '
critical legal studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
' movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism".
["The Dilemmas of Liberal Constitutionalism," 42 '' Ohio State Law Journal'' 411, 424 (1981).] Tushnet is a main proponent of the idea that
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
should be strongly limited and that the Constitution should be returned "to the people."
Tushnet is, with Harvard Law Professor
Vicki Jackson, the co-author of a
casebook
A casebook is a type of textbook used primarily by students in law schools.Wayne L. Anderson and Marilyn J. Headrick, The Legal Profession: Is it for you?' (Cincinnati: Thomson Executive Press, 1996), 83. Rather than simply laying out the legal do ...
entitled ''Comparative Constitutional Law'' (
Foundation Press
West (also known by its original name, West Publishing) is a business owned by Thomson Reuters that publishes legal, business, and regulatory information in print, and on electronic services such as Westlaw. Since the late 19th century, West ha ...
, 2d ed. 2006).
In 2020, Tushnet published a book extending his previous writing about judicial overreach concerning the process of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
, which he originally started discussing in his 1999 book on this subject.
Personal life
Tushnet is Jewish, and he married his wife Elizabeth Alexander at a Methodist Church. She is currently a
Unitarian[ and formerly directed the National Prison Project of the ]American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
but now works in private practice. Their daughter Rebecca Tushnet
Rebecca Tushnet (born April 4, 1973) is an American legal scholar. She serves as the Frank Stanton Professor of First Amendment Law at Harvard Law School. Her scholarship focuses on copyright, trademark, First Amendment, and false advertising.
...
is also a professor of law at Harvard Law School. Their other daughter Eve
Eve (; ; ar, حَوَّاء, Ḥawwāʾ; el, Εὕα, Heúa; la, Eva, Heva; Syriac: romanized: ) is a figure in the Book of Genesis in the Hebrew Bible. According to the origin story, "Creation myths are symbolic stories describing how the ...
is a lesbian author and blogger.
Bibliography
#''Taking Back the Constitution: Activist Judges and the Next Age of American Law'', (Yale U. Press, 2020).
#''In the Balance: Law and Politics on the Roberts Court'', ( W. W. Norton & Company, 2013) .
#''I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases'', (Malaysia: Beacon Press, pp. 256, 2008)
#''Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law'', (Princeton University Press, 2007).
#''A Court Divided: The Rehnquist Court and the Future of Constitutional Law'' ( W. W. Norton & Company, 2005)
#''The New Constitutional Order'' (Princeton U. Press 2003).
#''Slave Law in the American South:'' State v. Mann'' in History and Literature'' (University Press of Kansas
The University Press of Kansas is a publisher located in Lawrence, Kansas. Operated by The University of Kansas, it represents the six state universities in the US state of Kansas: Emporia State University, Fort Hays State University, Kansas Sta ...
2003).
#''The Oxford Handbook of Legal Studies'' (Peter Cane & Mark V. Tushnet eds., Oxford University Press 2003).
#''Defining the Field of Comparative Constitutional Law'' (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
#And L. Michael Seidman et al., ''Constitutional Law'' (Little, Brown and Co. 4th ed. 2001).
#Et al., ''Federal Courts in the 21st Century: Cases and Materials'' (LexisNexis
LexisNexis is a part of the RELX corporation that sells data analytics products and various databases that are accessed through online portals, including portals for computer-assisted legal research (CALR), newspaper search, and consumer info ...
2001).
#
#''Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991'' (Oxford University Press 1997).
#''Brown v. Board of Education: The Battle for Integration'' (Franklin Watts 1995).
#''The Warren Court in Historical and Political Perspective'' (Mark V. Tushnet ed., 1993).
#''Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1956–1961'' (1994).
#''The NAACP's Legal Strategy Against Segregated Education, 1925–1950'' (1987).
#''The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest'' (1981).
#And L. Michael Seidman et al., ''Constitutional Law'' (Little, Brown and Co. Supp. 1986, 1988, 1990, 1991, 2d ed. 1991, Supp. 1992, 1995, 1996, 3d ed. 1996, Supp. 1998, 4th ed. 2001).
#And Vicki C. Jackson, ''Comparative Constitutional Law'' (Foundation Press
West (also known by its original name, West Publishing) is a business owned by Thomson Reuters that publishes legal, business, and regulatory information in print, and on electronic services such as Westlaw. Since the late 19th century, West ha ...
1999).
#''Taking the Constitution Away From the Courts'' (Princeton University Press
Princeton University Press is an independent publisher with close connections to Princeton University. Its mission is to disseminate scholarship within academia and society at large.
The press was founded by Whitney Darrow, with the financia ...
1999), excerpted in Great Cases in Constitutional Law (Robert P. George ed., Princeton University Press, 2000) (reprinting chapter 1 in substance). Symposium of Commentaries on this book: 34 University of Richmond Law Review 359–566 (2000).
#And L. Michael Seidman et al., ''Teacher's Manual to The First Amendment'' (Aspen Law & Business 1999).
#And Francisco Forrest Martin, ''The Rights International Companion to Constitutional Law: An International Human Rights Law Supplement'' (Kluwer Law International 1999).
#And L. Michael Seidman, ''Remnants of Belief: Contemporary Constitutional Issues'' (Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
1996).
#''Constitutional Issues: The Death Penalty'' (Facts On File, Inc. 1994).
#''Constitutional Law'' (International Library of Essays in Law & Legal Theory) (Mark V. Tushnet, ed., New York University Press
New York University Press (or NYU Press) is a university press that is part of New York University.
History
NYU Press was founded in 1916 by the then chancellor of NYU, Elmer Ellsworth Brown.
Directors
* Arthur Huntington Nason, 1916–1 ...
1992).
#''Comparative Constitutional Federalism: Europe and America'' (Mark V. Tushnet, ed., Greenwood Press 1990).
#''Central America and the Law: The Constitution, Civil Liberties, and the Courts'' ( South End Press 1988).
#''Red, White, and Blue: A Critical Analysis of Constitutional Law'' (Harvard University Press
Harvard University Press (HUP) is a publishing house established on January 13, 1913, as a division of Harvard University, and focused on academic publishing. It is a member of the Association of American University Presses. After the retir ...
1988).
# ''Out of Range: Why the Constitution Can't End the Battle over Guns'' (Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
2007).
See also
*
References
External links
Harvard Law School faculty page for Professor Tushnet
Georgetown profile of Professor Tushnet
*
{{DEFAULTSORT:Tushnet, Mark
1945 births
Lawyers from Newark, New Jersey
Law clerks of the Supreme Court of the United States
American legal scholars
20th-century American Jews
Living people
Yale Law School alumni
Harvard College alumni
Harvard Law School faculty
Georgetown University Law Center faculty
University of Wisconsin Law School faculty
Scholars of constitutional law
Legal historians
People from Maplewood, New Jersey
21st-century American Jews
Yale Graduate School of Arts and Sciences alumni