Reasonable Disagreement: Mark Tushnet, John Rawls, and a Democratic Point to Constitutionalism

Abstract Bringing the thoughts of Mark Tushnet on the service (or disservice) of constitutionalism to democracy into conjunction with those of John Rawls, a striking overlap is found. We also find at least one seeming point of difference. Where Rawls shows no qualms about assignment to a judicial tribunal of a nearer-term decisive say over the constitutional validity of ordinary legislation when challenged as constitutionally noncompliant, Tushnet does. Rawls might limit judicial nay-saying to laws for which no credible defense can be summoned from within a wide space of reasonable disputability among adherents to constitutional democracy (and in that way draw closer to Tushnet), but Tushnet seeks ways to avoid or minimize even that much concession of shorter-term decisive authority away from ordinary democratic-majoritarian resolution. This chapter asks whether that difference necessarily signals some deeper division between the two bodies of thought over the political value or values to be served by constitutionalism in relation to democracy. Adverting then to Tushnet’s evident and persistent pursuit of an interest in weak-form judicial constitutional review—and giving consideration to possible explanations for that pursuit that would still not imply any positive embrace by Tushnet of constitutionalism for a country he would like to live in—the chapter concludes that it probably does not.