Mark Tushnet

The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston

The principal accomplishment of John Marshalls Supreme Court, according to George Lee Haskins and Herbert A. Johnson, was to subject politics to the discipline of law.1 In the system Marshall helped mold, ordinary politics may lie behind the adoption of constitutional provisions, but once placed in the Constitution, the provisions take on a meaning independent of politics. The rhetoric of discourse is transformed as arguments over principles replace arguments over interests.2 An alternative view of politics and constitutional law remains available even as we acknowledge Marshalls achievement. In the alternative view, constitutional provisions are verbal formulations that could gain substantial agreement while fundamental questions of principle remained unresolved. Politics is the craft of accommodating principled disagreements within a broader framework of agreement, and of developing acceptable compromises on issues when interests conflict. In the alternative view, politics is always present in constitutional law. Both principles and interests shape its formulations and reformulations. Constitutional law is especially political, in that sense, when the principled disagreements reflect deep divisions within the society. In United States history questions arising from the issue of race have regularly involved precisely that sort of principled disagreement. The constitutional law of racial equality has therefore been as political as any area of law could be. Constitutional law results from the litigation of contested cases. The process of

PLESSY V.FERGUSON IN LIBERTARIAN PERSPECTIVE

Decided within a decade of each other, Plessy v. Ferguson 1 and Lochner v. New York 2 are conventionally understood as intellectual twins. They are taken to illustrate some common failings that today’s political liberals believe constitutional adjudication should avoid.3 And their repudiation is sometimes taken to illustrate beneficial forms of constitutional adjudication. In these comments I hope to question both of these common positions. I argue that Plessy and Lochner are more different than alike, and that a libertarian perspective often rejected by contemporary liberals helps us understand both why the cases are different and why recent efforts to rehabilitate so-called expressive defenses of liberal legislation may be misguided or at least incomplete in light of Plessy.

The New Citizenship and Wars of Position: [Commentary]

Suppose Charles Reich had typed The New Citizenship on the first page of his article.1 He might have rediscovered republicanism a generation earlier than the neo-republicans of the 1980s. Perhaps he might even have understood that a right to some minimum of property, sufficient to guarantee the independence essential to the exercise of citizenship rights, could be derived from concepts of republican citizenship. David Abraham elegantly explains2 how the conceptual weight of U.S. constitutional thought made it natural, in this imagined scenario, for Reich to cross out the word Citizenship and replace it with Property. Was there really any alternative? Abraham discusses Margaret Jane Radins resigned pragmatism.3 Whatever the appeal of citizenship concepts in the abstract, the fact of the matter is that in the late 20th century United States, those who seek progressive change can do so only by strategically deploying the language of property. We may be saddled with a burden that, in the abstract, we might do better without, but we cannot simply discard it without abandoning all hope of engaging our compatriots in productive political discourse. Abraham subtly criticizes this argument, and does so, I believe, on what can fairly be called pragmatic grounds. His argument against Radin reminds me of arguments in the 1950s and 1960s over the proper conduct of U.S. foreign affairs. Some critics called those offering pragmatic arguments crackpot realists. The pejorative suggested that the so-called pragmatists ac-

A Critical Perspective On the Law of Speech And Communication

The most appropriate critical perspective on the modem law of speech would probably be located in one strand in the critical tradition derived from Horkheimer and Adorno. Focusing on the technologies by which speech is produced and distributed, it would direct attention to the ways in which the legal system has responded in sequence to the development of print, film, and television distribution of speech. It would speculate about the likely regulation of speech on the information superhighway. Its normative concerns would be embedded in a view of political economy. It would describe the utopian possibilities each new technology of speech makes available, as new entrants can challenge the dominance of existing forces over the existing technologies. It would examine the history of legal regulation of these speech technologies to show how the political