Anti-Formalism in Recent Constitutional Theory

Authors

Mark V. Tushnet, Georgetown University Law CenterFollow

Abstract

The focus in constitutional theory on judicial review rests on a much deeper political theory than the phrase "countermajoritarian difficulty" standing alone suggests. Majoritarian or democratic decision making is itself a solution to a set of problems that arise from a particular view of human nature and political action. In this Article, I identify, explicate, and criticize some recent developments in constitutional theory which are of interest to the extent that they reject that view of human nature and politics. I take as my focus important articles by Robert Burt, Robert Cover, Owen Fiss, Frank Michelman, and Cass Sunstein. I argue that the line of thought expressed by these authors attempts to displace concern with the countermajoritarian difficulty rather than to allay such concern.

Recommended Citation

Mark V. Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502 (1985).
Available at: https://repository.law.umich.edu/mlr/vol83/iss6/8