The Discourse of Constitutional Degradation
![handle is hein.journals/glj81 and id is 343 raw text is: The Discourse of Constitutional Degradation
GARY PELLER*
Mark Tushnet was, for many years, secretary of the Conference on
Critical Legal Studies (CLS), and he remains one of the best-known
figures on the legal left. He is also one of the most highly regarded
constitutional law scholars of our time.1 In addition, a substantial portion
of his extensive scholarly work considers the impact of race on American
law.2 Given his academic prestige, scholarly expertise, and political alle-
giances, Tushnet's publication of an essay that evaluates critical race
theorists' use of narrative jurisprudence is a significant occasion.
I am writing in reply to Tushnet's essay3 because I believe he maligns
work that I consider among the best of contemporary legal scholarship.
Tushnet frames his discussion with general statements of praise for the
work of Catharine MacKinnon, Patricia Williams, and Derrick Bell, and a
general commitment to the abstract idea of narrative as a way to
understand legal arenas.4 Nevertheless, there is a harsh tone to his cri-
tique, partly manifest in the conclusion that the work of MacKinnon,
Williams, and Bell lacks narrative integrity (and the associated implica-
tion that their work is part of the degradation of constitutional discourse),
and partly manifest in the dearth of self-consciousness (or irony) with
which he evaluates their narrative skill.
In light of Tushnet's CLS association, casual observers of the current
law school scene could conclude that his criticism of the work of Patricia
Williams, Derrick Bell, and Catharine MacKinnon is launched from rela-
tively friendly ideological quarters. As I explain in this essay, however, I
believe Tushnet is an opponent of recent developments in critical dis-
* Professor of Law, Georgetown University Law Center. Copyright reserved. This essay
has benefitted from the excellent assistance of Adam Green and from comments on an
earlier draft by Girardeau Spann and William Eskridge.
1. Professor Tushnet's writings are extensive. See, e.g., GEOFFREY STONE ET AL., CONSTI-
TUTIONAL LAW (2d ed. 1991) (casebook coauthored by Tushnet); MARK TUSHNET, RED,
WHITE AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW (1988); Mark V. Tush-
net, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96
HARV. L. REV. 781 (1983) [hereinafter Tushnet, A Critique of Interpretivism].
2. See, e.g., MARK TUSHNET, THE AMERICAN LAW OF SLAVERY, 1810-1860: CONSIDER-
ATIONS OF HUMANITY AND INTEREST (1981); MARK V. TUSHNET, THE NAACP's LEGAL
STRATEGY AGAINST SEGREGATED LEGAL EDUCATION 1925-1950 (1987); MARK TUSHNET,
THURGOOD MARSHALL AND THE SUPREME COURT 1936-61: MAKING CIVIL RIGHTS LAW
(forthcoming 1993).
3. Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEo. L.J. 251 (1992).
4. E.g., id. at 258-59 (Narrative jurisprudence already includes some of the most valuable
and provocative works in contemporary jurisprudence, and it has offered an exciting and
provocative alternative to traditional jurisprudence.).](ViewImageLocal?handle=hein.journals/glj81&div=23&collection=&method=preview&ext=.png&size=3)
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The Discourse of Constitutional Degradation
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