Essay by Mark Tushnet
It is by now a commonplace observation that recent years have seen a striking profusion of efforts to develop systematic constitutional theories. These efforts have been directed at justifying the central trust of the decisions of the Warren Court. On the conservative side, a standard litany of complaints about those decisions has been offered, and some fugitive attempts to counter the theoretical justifications for the Warren Court's jurisprudence have been undertaken. These efforts are intellectually weak at best. In this essay, I examine four versions of what passes for conservative constitutional theory in order to understand why it is so weak. All of the versions might be developed into theories with some power. I argue that their development is unlikely because, in the end, conservatives do not need constitutional theory. Certain strands in conservative political theory reject the premises that produce constitutional theory, and, in any event, conservatives are likely to prevail, as liberals are not, without a theory.
About the Author
Mark Tushnet. Professor, Georgetown University Law Center. B.A. 1967, Harvard University; M.A., J.D. 1971, Yale University.
Citation
59 Tul. L. Rev. 910 (1985)