The Dilemmas of Liberal Constitutionalism
![handle is hein.journals/ohslj42 and id is 417 raw text is: The Dilemmas of Liberal Constitutionalism
MARK TUSHNET*
I. THE DILEMMAS OF GRAND THEORY
I suppose that we could treat the recent appearance of works by
Professors Ely' and Choper as an example of the happy phenomenon, widely
noted in the history of science,3 of the simultaneous discovery,4 and then go
on to discuss the merits of their discovery. But that would obscure some quite
interesting aspects of their work. First, their analyses are not, strictly speak-
ing, discoveries, but rather are rediscoveries. John Marshall justified judicial
review by referring to inadequacies in the political process in McCulloch v.
6
Maryland,5 as Professor Ely notes, and justified restrictions on review when
the political process was adequate in Gibbons v. Ogden.7 A century later
Harlan Stone made the same points, not only in the Carolene Products foot-
note so important to Professor Ely,8 but also in South Carolina State Highway
Department v. Barnwell Brothers9 and in dissent in United States v. Butler.'o
That is enough to show that we are not dealing with the rediscovery of some-
thing propounded first by an obscure Bohemian monk, and to suggest that
the intellectual historian may have as much to say about the Ely-Choper
approach as the constitutional scholar does. Second, Professors Ely and
Choper are only two members in a general revival of Grand Theory in
constitutional law, in which Professors Tribe2 and Perry,13 among others,
also take part. The last Grand Theorizing era can be dated from Herbert
Wechsler's Holmes Lectures4 and Alexander Bickel's early work,5 but that
* Professor of Law, University of Wisconsin. B.A., 1967, Harvard University. J.D., M.A., 1971, Yale
University.
I. J. ELY. DEMOCRACY AND DISTRUST (1980) [hereinafter cited as ELY].
2. J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980) [hereinafter cited as
CHOPER].
3. See R. MERTON, THE SOCIOLOGY OF SCIENCE 352-70 (1973).
4. Other contributors to this Symposium make the similarities between the works clear. Both justify
judicial review by the existence of obstacles to the vindication of individual choice in the normal political
process. Professor Choper does not formally extend this theory to the area of individual rights as Professor Ely
does, but it is hard to see how, for example, a rights-based approach to that area could readily be joined with the
functional theory Professor Choper invokes in the area of governmental structure.
5. 17 U.S. (4 Wheat.) 316 (1819).
6. ELY. supra note I. at 85-86.
7. 22 U.S. (9 Wheat.) 1 (1824).
8. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), discussed in ELY, supra note 1, at
75-77.
9. 303 U.S. 177, 184 n.2 (1938).
10. 297 U.S. 1, 87 (1935)(Stone, J., dissenting).
II. R. MERTON, THE SOCIOLOGY OF SCIENCE 352-70 (1973).
12. L. TRIBE. AMERICAN CONSTITUTIONAL LAW (1978 & Supp. 1979).
13. Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantiie Due
Process, 23 U.C.L.A. L. REV. 689 (1976).
14. Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
15. A. BICKEL, THE LEAST DANGEROUS BRANCH (1962).](ViewImageLocal?handle=hein.journals/ohslj42&div=21&collection=journals&method=preview&ext=.png&size=3)
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The Dilemmas of Liberal Constitutionalism
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