Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of objections that the author poses to these theories. Instead, Professor Tushnet relies on the most recent version of the reductionism of law to politics to explain the failure of these theories: "the crisis of contemporary liberal political theory. But whatever its etiology, this current crisis can scarcely account for earlier occurrences of these fundamental general theories of constitutional argument. I hope the reader of this review will be able to see why this reduction, and why the array of arguments deployed by Professor Tushnet against the theories he presents (and even his own explanations of those theories), are largely dictated by the approach he has adopted – an approach that is as much a part of the traditional family of general theories as any of the others and to which the current crisis in liberalism, if such it be, is equally irrelevant.
Philip C. Bobbitt,
Is Law Politics?,
Stan. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1119
Red, White, and Blue: A Critical Analysis of Constitutional Law by Mark Tushnet, Cambridge: Harvard University Press, 1988, pp. x, 318, $35.00.