Mark Tushnet, Professor of Law at Harvard Demonstrates Ignorance of Basic U. S. Government Structure

Harvard Takes Another Hit

While a great many people regard Harvard University as the foremost educational institution in the United States, if not the world, lately there have been a lot of reasons to doubt.  It turns out that Harvard has a lot of ignoramuses both in its faculty and its graduates.  A couple of economists published a widely influential paper on government debt and economic activity, only to learn it was rife with errors, errors found by a graduate student (not at Harvard).  Texas Senator Ted Cruz is a Harvard grad, as is the Republican running for Lt. Gov. in Virginia.  That person has asserted that the devil inhabits bodies while they are doing Yoga.

And now comes Mark Tushnet, a full professor who hold a chair at Harvard’s Law School writing about the Supreme Court and its ability to declare various laws Unconstitutional.  He don’t like that.

But if the justices are deciding rather than interpreting, why should they be the ones to decide, substituting their decisions for ours? The usual explanation is that we can trust them to do the right thing—and we can't trust ourselves. . . .

So why don't we use these same institutions for hot-button constitutional issues like abortion rights, gun rights and affirmative action? In these cases, we let nine other people decide, by majority vote, what they think our rights are. That majority vote then becomes "constitutional law." The great puzzle is, why do we let them get away with it?

Well first of all Mr. Tushnet apparently does not understand that no, the Supreme Court is not the final word on the law of the land.  The people are.  The Constitution can be amended, and although that is a difficult process, as well it should be, that can happen.  So no Mr. Tushnet, final authority does not rest with the Supremes, it rests where you think it should rest, with the voters.  We thought you, being a full professor of law, should know this but apparently we were wrong.

So what would Mr. Tushnet do about his complaints, well he would do this.

If judicial review is a problem, what can we do about it? I'm fond of a Canadian innovation that Judge Robert Bork also found interesting: Let the justices strike down statutes they think are unconstitutional and give their explanations. Then let Congress respond. If a congressional majority agrees with the Court, the decision stands. But if a majority thinks that the Court got it wrong, Congress can override the decision.

So let’s make sure everyone understands the pure idiocy of this suggestion. Mr. Tushnet would have the Congress, the very people who enacted the Unconstitutional law in the first place use a majority vote to make their Unconstitutional law Constitutional.  The lack of any logic here is astounding.

And notice that Mr. Tushnet has no understanding of modern politics.  The Congress does not perfectly represent the voters.  In fact it is a rather imperfect representation.  A couple of hundred thousand people in Alaska have the same number of Senators as millions of people in California do.  And the Senate now requires a 60 vote margin on everything, so where does that leave Mr. Tushnet’s majority rule.

The House, as anyone who has ventured outside the ivoried walls of academia knows is so gerrymandered that the majority of the votes for House members go to Democrats and the Republicans hold a majority of the seats.  Duh.

Finally, if you are going to have a Constitution you have to have an umpire, someone at least nominally impartial who can make decisions on the Constitutionality of laws.  It is obvious to everyone except Mr. Tushnet and maybe the late Robert Bork and maybe a few other legally blind people that the Supreme Court is uniquely appropriate for this role, not the Congress who enacts legislation. 

Of course, drawing on Mr. Tushnet’s reasoning (?) why don't we have a system where a super majority of the Congress can vote to change the Constitution and then let the states or the voters vote directly on that.  Oh, sorry, we already have that, guess you didn’t know that Mr. Tushnet.  But don’t take our word for it, check it out. You can find it in the Constitution if you would bother to take a look.  You do know what the Constitution is don’t you?

Harvard, you really need to fix your standards, or at least get a better football team.