Ultra Vires


A Conversation with Professor Mark Tushnet

The 2019 Cecil A. Wright Lecture: Institutions for Protecting Constitutional Democracy: Some Conceptual Preliminaries

Photo credit: Chensiyuan. Licensed under CC BY-SA 4.0. https://commons.wikimedia.org/wiki/File:1_mark_tushnet_smu_2018.jpg.

Professor Mark Tushnet, of Harvard Law School, is a deeply committed democrat—not in the partisan sense, but rather as a thinker whose scholarly career is deeply marked by an abiding interest in the protection of democracy, that delicate but eminently worthwhile way of organizing society.

It only makes sense that the central theme of Prof. Tushnet’s address, at this year’s Cecil A. Wright Lecture on January 22, 2019, was to articulate how institutions protecting constitutional democracy succeed and fail.

One of the key lessons, it turned out, was that it is not always about the institutions themselves. During his lecture, Prof. Tushnet noted that one of the most befuddling things we now understand about institutional design is that, when it comes to democracy-supporting institutions, such as courts, tribunals and government agencies, what works in one place may fall flat in another. Yet, we cannot account for this through better designing the institution.

Raising the problem of corruption specifically, Prof. Tushnet noted that, in some places, a well-designed institution will have a tremendous impact upon curbing corruption while in other locales it will have almost no impact at all. The converse is also true: a poorly designed institution can, despite itself, have a great positive impact in some places while having virtually none in others. It all comes down to who has the political power—or perhaps the charisma—to make one agenda stick more than the other.

That is probably what caused Prof. Tushnet to find himself awake at 2 am after the 2016 US Election night on November 6, 2016, unable to sleep. He was concerned, as many others were, that the US had just elected a president who was simply not interested in mobilizing institutions to protect democracy. Rather, the then President-elect was one who was nurturing an active interest in undermining democracy itself. With this in mind, Prof. Tushnet wrote to one of his friends at the University of Toronto Faculty of Law.

“The election of Donald Trump in 2016 raised real questions for me about the stability and justifiability of the US constitutional system” —Prof. Tushnet

He said, “The election of Donald Trump in 2016 raised real questions for me about the stability and justifiability of the US constitutional system, with implications for the quality of my own life. And so immediately after the election I opened a correspondence with a friend on the U of T [law] faculty to explore the possibility of establishing some sort of relationship with this faculty. And I think this visit is in part the result of that inquiry.” Prof. Tushnet was quick to qualify that the situation in the US had not developed as quickly or severely as he feared.

How do law students fit into the relationship between individuals and institutions preserving democracy? Prof. Tushnet views the law school as operating on primarily two functions in relation to its students. The first, to disabuse them of a commonly held thought, and the second, to instill a perhaps uncommonly held idea.

Prof. Tushnet explained, “[There are] two primary things  in connection with the preservation of democratic society. [The first is] educating lawyers so that they understand how indeterminate legal rules are, and therefore don’t assume that legalism as such is sufficient to support democracy. The second is imbuing a professional ethic in which the work lawyers do in which lawyers believe they have a role in preserving democracy independent of their commitment to the law as such.”

The law school, therefore, is supposed to unsettle the naïve faith in the law as panacea for society’s problems while imbuing in students the view that absent such a fix-all we are all there is. Yet, as Prof. Tushnet notes from his experience teaching in America, law schools do not always achieve this dual purpose. Rather, law schools are very good at the first but fall relatively behind on the second—with dangerous results.

He said, “If you’ve taken away legalism as a support for democracy and you don’t put something else in, then lawyers are not going to be committed qua professionals to the preservation of democracy.”

Fundamentally, Prof. Tushnet is concerned about the preservation of democratic societies and with highlighting the limited ways in which the law can preserve these beacons of human possibility. What he wants to remind us is that the law is only ever a tool to be used by individuals who, guided by their own lights, understand what should be done. The institution itself cannot matter, for the institution is directed by those who choose to care. This explains why the election of a single man can be so distressing to one of America’s leading constitutional law scholars.

Recent Stories