Amanda Frost

Mark Tushnet on Why the Constitution Doesn’t Matter

The Green Bag Second Series
2010 Autumn


MARK TUSHNET’S BOOK, Why the Constitution Matters, is poorly titled – though that is not Tushnet’s fault. The book is published by Yale University Press as part of its “Why X Matters” series, in which the authors defend the relevance of their chosen subject. Presumably, then, Tushnet lacked discretion to alter the title, but happily that didn’t stop him from ignoring it. Tushnet argues that constitutional law is really politics by another name and that the Constitution’s text and judicial doctrine expounding on it have little effect on our lives. The Constitution matters, Tushnet concludes, only to the degree that it provides a “structure for our politics” (p. 1) – though in the end he doesn’t think the Constitution does much of that either. A more accurate title of his book, then, would have been “Why the Constitution Doesn’t Matter Much, at Least Not in the Way You Thought it Did.”


Amanda Frost, Mark Tushnet on Why the Constitution Doesn’t Matter (reviewing Mark Tushnet, Why the Constitution Matters) 14 The Green Bag Second Series 99-112 (2010).

More in This Category