In Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020), Tushnet reinforces his powerful argument for replacing judicial supremacy with popular constitutionalism through a careful and illuminating analysis of how constitutional thought has evolved in the United States, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s to this date.

Despite being focused on America, we think Tushnet’s argument has wider application and merits discussion in many other national contexts, especially in an age of widespread challenges to the democratic system and attempts to curb the power of courts with less laudable aims than Tushnet’s. Democratic backsliding in Brazil, Hungary, Poland and elsewhere could, for instance, provide interesting contexts in which to probe Tushnet’s views.

The symposium will take place on May 5 2021 (2-6pm) via Microsoft Teams and will encompass two sessions of approximately two hours each. Each session will feature two discussants, with between 20 to 30 minutes to discuss one or more aspects of the book, followed by a response from Tushnet and open discussion with participants and the audience.

About the author

Mark Tushnet is William Nelson Cromwell Professor of Law, Emeritus, at Harvard Law School. Professor Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional democracy." He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s. 

He is the author of several seminal books, including a two-volume work on the life of Justice Thurgood Marshall, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law, Why the Constitution Matters and Taking the Constitution Away from the Courts.

About the chair

Octávio Luiz Motta Ferraz, reader and co-director of the Transnational law Institute (KCL), author of Health as a Human Right. The Politics and Judicialisation of Health in Brazil (Cambridge University Press, 2020) and co-lead of the Lex Atlas Covid-19, a global academic project mapping legal responses to Covid-19.

About the discussants

Richard Bellamy is Professor of Political Science at University College London (UCL) and author of several books, including A Republican Europe of States: Cosmopolitanism, Intergovernmentalism and Democracy in the EU (Cambridge University Press, 2019), and Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press 2007), which won the 2009 David and Elaine Spitz Prize of the International Conference for the Study of Political Thought.

Michaela Hailbronner is Professor of Public Law and Human Rights at the University of Giessen and author of Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)

Jeff King is Professor of Law at University College London (UCL), Legal Adviser to the House of Lords Select Committee on the Constitution and the author of, among other books, Judging Social Rights (Cambridge University Press, 2012), winner of the 2014 Peter Birks Prize.

Kriszta Kovács is Marie Skłodowska-Curie Fellow and Principle Investigator of the Supra-Nat MSCA Project at the Center for Global Constitutionalism of the Wissenschaftszentrum Berlin Sozialforschung (WZB) and has published extensively on democracy, human rights and the role of the judiciary.