Author Archive for brannon-denning

Book Review: Parties, Politics, and the Constitution: A Review of Tushnet’s Why the Constitution Matters

posted by Brannon Denning

Why the Constitution Matters. By Mark Tushnet. Yale University Press. 2010.  Pp. 187. $25.00.

In his latest book Why the Constitution Matters, Mark Tushnet (William Nelson Cromwell Professor of Law, Harvard University) argues that the Constitution matters not because it enshrines certain “fundamental rights” enforced by the Supreme Court against majoritarian interference, but rather because the document creates political institutions that shape both the content of constitutional law (including fundamental rights) and how those rights get enforced.  As he writes in the Introduction, “the Constitution matters because political parties matter, and the Constitution has some influence on the way parties operate” (p. 13).  Hermetically separating law and politics is not only impossible, Tushnet argues, it is normatively undesirable.

Much of Chapter 1 discusses the ways that our Constitution’s structure made possible, then entrenched, the contemporary two-party system.  Separation of powers, for example, created the possibility of divided government.  Because structural features like separation of powers and federalism impact both party organization and whether government is divided, both are ultimately important to “constitutional law,” broadly denominated.  (There is an irony, of course, in this: the Constitution contains no mention of parties and the Framers in fact tried to forestall their creation through these very structural mechanisms.)  As time went by, Tushnet argues, highly localized parties that were really coalitions began to develop more or less coherent ideologies.  For presidents, this coherence means that unified government offers the President tremendous opportunity to achieve policy goals, while divided government (and term limits) can frustrate presidential ambitions.  This is a relatively new phenomenon; historically, when parties were coalitions, we usually had “essentially divided government,” with the President having to work with ideologically-compatible members of both parties (p. 40).

Tushnet is largely silent about constitutional law (as opposed to constitutional structure) until the end of Chapter 1, when he speculates that the Supreme Court’s application of the First Amendment to campaign finance reforms might have had some meaningful effect on these political developments.  Ultimately, he’s skeptical.  In the absence of the Court’s decisions, he argues, we’d probably have ended up at about the same place.  As he argues in Chapter 2, the Court “interprets the Constitution the way it does because it too is both a part and the result of our political system” (p. 91).  He continues: “Put politicians in charge of campaign finance and they’ll enact laws that reinforce the existing structure of politics.  Put judges in charge and they’ll interpret the Constitution to—aha!—reinforce the existing structure of politics” (p. 92).

Thus, the message of Tushnet’s first chapter is that the Constitution matters because it creates a governmental structure that has incubated a particular two-party political culture.  This political culture, in turn, influences the Constitution’s interpretation, not least because the interpreter-in-chief of that Constitution—the Supreme Court—“is both a part and the result of our political system. . . . [W]e can expect the Court’s interpretations to reinforce the constitutional positions most consistent with those of the then-dominant political regime” (p. 91).

That last suggestion—that the Court is both a political and a legal institution—is at odds with our national mythology that surrounds the Court.  It will probably strike a number of readers as downright heretical.  But Tushnet presses on in Chapter 2, arguing that the Court’s politics have patterns “connected to the ideas about regimes, presidential leadership, political parties, and divided or unified government” that “help make sense . . . of the Court’s history” (p. 94).

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  January 18, 2011 at 6:53 pm   Posted in: Book Reviews, Constitutional Law   Print This Post   One Comment

Book Review: Speaking Up

posted by Brannon Denning

  December 23, 2009 at 10:28 am   Posted in: Book Reviews, Constitutional Law, First Amendment   Print This Post   One Comment

Thanks!

posted by Brannon Denning

I wanted to thank Dan, Dave, and the rest of the CO gang for inviting me to guest blog. As usual, my reach exceeded my grasp in terms of things that I wanted to post, but I especially wanted to thank all those who commented on the post about what you might want to see in a guide for law faculty candidates. I wish all of my fellow bloggers and readers a Happy Fourth of July and a great rest of the summer.

  July 2, 2007 at 9:28 am   Posted in: Uncategorized   Print This Post   One Comment

Fallon & Meltzer on the Detainee Cases

posted by Brannon Denning

I wanted to highlight this article by Richard Fallon and Daniel Meltzer, which systematically goes through all of the issues related to habeas corpus, due process, and the detainee cases. It is a marvelous article: clear, brief (considering the issues), and thorough. Further, while the authors have definite opinions about the correct outcomes of various issues, they acknowledge that the issues are difficult and that reasonable minds can differ. This is a welcome change from some scholarship (on this topic in particular) that assumes those who disagree are fools or knaves. If you read only one article about the detainees, read this one.

  June 29, 2007 at 8:58 am   Posted in: Uncategorized   Print This Post   One Comment

Texting and Talking: The New Smoking?

posted by Brannon Denning

It is a commonplace to note the degree to which technology enables us to stay “connected” to family, work, etc. What I find fascinating is not only how common it is to see folks talking and texting, but how many people instinctively reach for their phone and begin talking, texting, or both when faced with any sort of enforced idleness. It reminds me a bit of Brian Doyle-Murray’s character in Christmas Vacation when he doesn’t want Clark Griswold in his office anymore. He picks up the phone and growls, “Get me somebody. Anybody.”

I think cell phones and Blackberrys have replaced cigarettes as our response to these sorts of unanticipated waits. One sign that talking and texting may be the new smoking: signs asking folks to turn off their cell phones before entering places like doctor’s offices.

  June 18, 2007 at 1:14 pm   Posted in: Uncategorized   Print This Post   31 Comments

Civil Rights Trials as Transitional Justice

posted by Brannon Denning

Yesterday’s conviction of a former Klan member in the previously unsolved killings of two teens in the 1960s is the latest in what seems to be a series of attempts to crack cold cases from the civil rights era before even more witnesses and suspects die off. My colleague at Cumberland, Don Cochran, was part of the prosecution team that secured the conviction of Bobby Frank Cherry, who was involved in the bombing of the Sixteenth Street Baptist Church here in Birmingham.

Don has written a wonderful essay about the trial, and his role in it, entitled Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church, 12 Mich. J. Race & L. 1 (2006) (I can’t find a copy online). In the conclusion, Don posits that the Cherry trial, and civil rights trials in general can be understood as a form of “transitional justice,” a term taken from international law describing the processes (trials, lustration, truth commisssions, etc.) by which regimes transitioning from authoritarian to democratic governments attempt to expose, and come to terms with, the past. I think that the concept of transitional justice is a fascinating lens through which to view these trials, and I think it can help furnish an answer to the question Don says he frequently gets: “What is the use of trying and convicting these old men decades after these crimes have been committed?”

  June 15, 2007 at 3:53 pm   Posted in: Uncategorized   Print This Post   2 Comments

So You Wanna Be a Law Professor, Part II

posted by Brannon Denning

First, thanks so much to everyone who made comments to my previous post, which asked for things you’d like to see in a book about the faculty hiring process. I’m knee-deep in summer school, so while I can’t respond individually to each comment, please know that I appreciate each one and all will be helpful as we continue writing the book. I am pleased to see that we have, so far, anticipated many of the topics that you wanted to see covered.

Many comments asked what the chances are for someone who attended a non-elite law school to break into the teaching market. Since that seemed to be a common theme, I thought I’d offer “Becoming a Law Professor: The Nutshell.”

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  June 15, 2007 at 3:23 pm   Posted in: Uncategorized   Print This Post   10 Comments

So You Wanna Be a Law Professor?

posted by Brannon Denning

Okay, I’m back. [You were gone?--ed] I had to run home for the weekend to dogsit, while the rest of my family was out of town. One of my projects this summer is to keep working on a book that my colleague, Marcia McCormick, and I are writing together: a guide for those who want to be law professors. Our intent is to write a soup-to-nuts guide, covering what law professors do, describing the job search process, the call-back, negotiating the offer, down to what to do if you don’t succeed at first.

We have several chapters written, but I thought I’d take this month’s opportunity to ask readers who are interested in becoming law professors and law professors who care to give the matter some thought, “What would you like to see in a book like this?” What information do you have now that you wish you had when you starting thinking about jumping into this business? Feel free to leave suggestions in the comments, or e-mail me directly bpdennin at samford.edu.

  June 11, 2007 at 2:10 pm   Posted in: Uncategorized   Print This Post   16 Comments

Waiting for Harry Potter?

posted by Brannon Denning

Ever since he was a baby, I have read to my son as part of his bedtime routine. One of the great parts of his getting older has been being able to read longer chapter books, like The Hobbit, the Wind in the Willows, etc. Last year we read the entire Potter opus through the Half-Blood Prince. We are both eager awaiting the Deathly Hallows. If you, too, are waiting for your HP fix, you might be interested in Brian Jaques’ Redwall. If you’re not familiar with the book, or the series, Redwall is about a young mouse, Matthias, who is a novice at Redwall Abbey who is forced to undertake an epic quest for the sword of the Abbey’s ancient hero, Martin the Warrior, in defense of his Abbey and the creatures who live there against Cluny the Scourge, an evil rat warlord and his army, who have laid siege to it. The writing is very evocative and the characters most entertaining. In particular my son thought that a character named Basil Stag Hare—a loveable old British sergeant-major type (but a hare)—was hysterical. There is a fare amount of bloodshed and some characters that you come to love are killed off, so if you have sensitive children you might want to read it through yourself first. We enjoyed it so much that we’ve already begun the third book (the second, Mossflower, is a prequel to Redwall), which features Matthias’s son, Mattemeo.

  June 6, 2007 at 4:41 pm   Posted in: Uncategorized   Print This Post   No Comments

Advice for New Law Professors

posted by Brannon Denning

Last summer, I had fun offering a few pieces of advice to incoming law students. I thought that I’d give some thought to advice for new law professors. As I look back, there really wasn’t much to go on; my first job was teaching in a school that had not made a new hire in several years. Consequently, I had to learn by making mistakes, and I made a lot of them! So, here are a few things I thought of; I may add to the list throughout the month.

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  June 6, 2007 at 4:14 pm   Posted in: Uncategorized   Print This Post   3 Comments

Books for New Law Students

posted by Brannon Denning

Though I’m a little late to the game, I thought that I’d weigh in on Eugene’s thread about books to read before law school. My initial reaction is to advise folks to read any but books about the law, but as I was putting together my course materials, I thought about this book by Harvard law professor Richard Fallon. At many schools (not at Cumberland, though) constitutional law has become a first-year course; I always have students who find the subject confusing because they didn’t have any undergraduate courses in the Supreme Court or constitutional law and find the first several weeks rough going. Even excellent treatises like Erwin Chemerinsky’s can provide too much detail for these students. Fallon’s book is a great introduction to the Court and to the doctrine of American constitutional law.

  June 5, 2007 at 12:15 pm   Posted in: Uncategorized   Print This Post   3 Comments

Please Allow Me to Introduce Myself . . . .

posted by Brannon Denning

Thanks to Dave, Dan, and the rest of the Concurring Opinions folks for the kind invitation to spend some time here. I apologize for the delayed first post, but I’m getting settled in this week to my summer gig at The University of Tennessee, Knoxville, where I’m teaching a constitutional law class in the law school’s summer session. As Dave mentioned, I write primarily on dormant Commerce Clause issues, and intend to begin a series of posts today articulating a new theory that I’ve developed . . . Wait. Where are you going? I was just kidding. I look forward to my time here, and, again, appreciate the invitation.

  June 5, 2007 at 8:59 am   Posted in: Uncategorized   Print This Post   No Comments