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Subconstitutional Constitutional Law: Supplement, Sham, or Substitute?

By Mark V. Tushnet


In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. Second, one might fairly question the need for conclusive judicial review in the classic mode precisely because these doctrines are so widely available. Normatively, a combination of full democratic choice coupled with sub constitutional doctrine to ensure that such choice is informed, carefully made, and the like, might be more attractive than a system in which democratic choice is limited substantively by the courts. Exactly what extra value does democratic self-governance get from conclusive judicial review? Pretty clearly, not all that much, in light of the scope of these subconstitutional doctrines

Topics: Constitution – Interpretation and construction, judicial review, separation of powers, Constitutional Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2001
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