Dick Cheney/Extra-Judicial Constitutionalism

[Mark Tushnet]

Marty Lederman refers to my work, and in the course of his interesting post asks whether I (among others) believe that "it is a *virtue* that the nonjudicial actors would fail to abide by 'technical' constitutional requirements that to them seem 'silly'?"  In Chapter One of Taking the Constitution Away from the Courts, I develop an argument that, with respect to the provisions of what I call the thick Constitution (among which provisions would be the 12th Amendment, although I didn't have it in mind when writing), the answer to Marty's question is, "Precisely."  I won't/can't reproduce the argument here, but (SSP) the book is now, or will be in a few weeks, available in paperback.

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001
     202-662-9106
     202-662-9497 (fax)
tushnet at law.georgetown.edu