School of law

Hamdard Institute of Legal Studies and Research (HILSR)

JAMIA HAMDARD

(Deemed to be University)

New Delhi-110062

PhD (2023)

Project: Response Paper on “Introduction” in ‘Why the Constitution

Matters’ by Mark Tushnet

Submitted to: Submitted by:

Burhan Majid Manjusha KV,

Asst. Professor, HILSR, Jamia Hamdard PhD Scholar, Enrollment No: 2022-853-001
“However good a constitution may be, if those who are implementing it are not good, it
will prove to be bad. However bad a constitution may be, if those implementing it are
good, it will prove to be good”, by Dr. B. R. Ambedkar, the Chairman of the Drafting
Committee of the Constitution of India.

Introduction

Mark Victor Tushnet is an American Legal Scholar, specialises in Constitutional law and
theory, including comparative constitutional law1. Professor Mark Tushnet stands out as an
exceptionally prolific and eloquent critic, particularly from the left, offering insightful
perspectives on mainstream constitutional theory.2 In his seminal work "Why the Constitution
Matters3," Mark Tushnet challenges the prevailing notion that the primary function of the
Constitution is to safeguard fundamental rights. In contrast, Tushnet argues that the true
significance of the Constitution lies in its provision of a structural framework for political
processes. According to his perspective, it is the realm of politics, rather than the Constitution
itself, that ultimately serves as the safeguard for fundamental rights. This departure from
conventional beliefs necessitates a thorough examination of the validity of Tushnet's ideology
in the context of the present situation particularly in Indian scenario. This paper aims to
critically analyse Tushnet's theory, juxtaposing it with the viewpoints of other scholars in the
field to provide a comprehensive understanding of the role of the Constitution in contemporary
times.

The Inherent Disagreements on Fundamental Rights

Tushnet highlights the inherent disagreements over fundamental rights, using examples such
as abortion and the Second Amendment4. He argues that relying solely on the Constitution to
protect these rights does not provide definitive resolutions, as Supreme Court decisions often
fail to eliminate deep-seated differences in public opinion. When we examine the fundamental
rights aspects in Indian Constitution, it explicates that the fundamental rights are more based
on selection of certain clauses from different constitutions of the world, rather than focusing

1
Mark Tushnet, 'Faculty Profile' (Harvard Law School) https://hls.harvard.edu/faculty/mark-tushnet, accessed
14 December 2023
2
Earl M. Maltz, "Book Review: Red, White and Blue: A Critical Analysis of Constitutional Law by Mark Tushnet."
(1989)Constitutional Commentary 286 https://scholarship.law.umn.edu/concomm/286 accessed on 15
December 2023
3
Mark Tushnet, Why the Constitution Matters (Yale University Press, 2010)
http://www.jstor.org/stable/j.ctt5vkxsc.3, accessed 14 December 2023
4
Ibid
on the actual conditions in India, since it lack provisions regarding guarantee of economic
equality, social reforms, agriculture and the revitalisation of the industrial life.5 Furthermore,
the fundamental rights are not immutable within the constitutional text, as the parliament
possesses the authority to amend any provision of the constitution, including those pertaining
to fundamental rights. According to Tushnet, more than the text of the Constitution, Supreme
Court protect our fundamental rights, when it interprets the Constitution.

The Limited Impact of Supreme Court Decisions:

While acknowledging the role of the Supreme Court in constitutional interpretation, Tushnet
contends that its decisions do not eliminate disagreements. The Supreme Court's interpretation
of the Constitution is subject to change over time. We can witness these changes in almost all
the constitutional interpretations. For instance, in the context of Indian jurisprudence, the
Supreme Court, through the case of Maneka Gandhi v. Union of India6, departed from the
precedent set by A. K Gopalan v. State of Madras7, providing a broader or revised interpretation
to the term 'procedure established by law.' In the words of Tushnet, “someday, the court is going
to start protecting rights you don’t think should be protected and stop protecting the ones you
like”8. Hence, he underscores the notion that depending solely on the Supreme Court for the
safeguarding of fundamental rights may not always be reliable. According to Tushnet, the
important policies are shaped by legislation rather than Supreme Court interpretations. He
further argues that what many consider fundamental in national policies result from legislations
and not from Supreme Court interpretations9.

The Constitution Outside the Constitution:

Tushnet introduces the concept of a "Constitution outside the Constitution," emphasizing the
role of legislation enacted by Congress in shaping fundamental aspects of American society.
At the heart of Tushnet's argument is the idea that constitutional principles are not exclusively
derived from judicial decisions but are also embedded in the laws passed by Congress. He
highlights how legislative acts, such as Social Security, contribute to the formation of a de facto
constitution, influencing and shaping the rights and obligations of citizens. Unlike conventional

5
S. P. Bhargava, 'Fundamental Rights and the Indian Constitution' (1949) 1(2) Journal of the Indian Law
Institute 24 https://www.jstor.org/stable/42743210, accessed 14 December 2023
6
AIR 1978 SC 597
7
AIR 1950 SC 27
8
Mark Tushnet, Why the Constitution Matters (Yale University Press, 2010)
http://www.jstor.org/stable/j.ctt5vkxsc.3, accessed 14 December 2023
9
Ibid
constitutional analysis that often focuses on court decisions, Tushnet's perspective broadens the
scope to include the ongoing legislative processes that significantly impact the constitutional
framework.

One key example that Tushnet presents is the Social Security Act. Instead of viewing
constitutional principles solely through the lens of court decisions, Tushnet argues that Social
Security represents a fundamental aspect of the American constitutional order. The creation of
Social Security, a landmark piece of legislation passed during the New Deal era, illustrates how
policy choices made by Congress can have profound constitutional implications. The
establishment of Social Security not only addressed pressing economic and social issues but
also fundamentally altered the relationship between citizens and the state, setting a precedent
for the government's role in providing social welfare.

Tushnet's argument underscores the dynamic and evolving nature of the Constitution. He
suggests that the Constitution is not a static document but is continually shaped and redefined
through legislative actions. This perspective challenges the notion that constitutional law is
exclusively the domain of the judiciary, emphasizing the co-equal role of the legislative branch
in constitutional interpretation.

Furthermore, Tushnet's concept encourages a re-evaluation of the traditional hierarchy between

statutes and constitutional law. While court decisions are often considered the final arbiter of
constitutional interpretation, Tushnet's approach suggests that statutes can serve as powerful
expressions of constitutional values. Social and economic policies crafted through legislation,
according to Tushnet, embody the ongoing constitutional dialogue within the democratic
process.

In the realm of Indian jurisprudence, Tushnet's paradigm shift in the hierarchy between statutes
and constitutional law is evident in the dynamic interplay between legislation and constitutional
values. The Indian Constitution's incorporation of Directive Principles of State Policy
underscores the importance of statutes in realizing constitutional goals, particularly in the
realms of social and economic justice. Legislative acts, such as the Right of Children to Free
and Compulsory Education Act and environmental Protection Laws (Environment (Protection)
Act and the Water (Prevention and Control of Pollution) Act, serve as robust expressions of
constitutional commitments, translating abstract principles into actionable policies10. The

10
Uday Shankar and Divya Tyagi, 'Socio-Economic Rights in India: Democracy Taking Roots' ([2009]) 42(4)
Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 527-551.
legislation for Reservations in educational institutions like Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, anti-discrimination laws (The Protection of Civil Right
Act and the Right of Persons with Disabilities Act), and landmark social welfare legislations
(Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the National
Food Security Act (NFSA), and the Forest Rights Act) further exemplify how statutes play a
pivotal role in embodying and implementing constitutional values, fostering an ongoing
constitutional dialogue within the democratic process11. This symbiotic relationship between
statutes and constitutional law reflects a nuanced understanding of the interconnectedness
between legislative enactments and constitutional principles in shaping India's legal landscape.

However, Tushnet's perspective raises questions about the limitations and potential pitfalls of
relying on legislative actions to define constitutional principles. Critics may argue that court
decisions provide a more consistent and principled interpretation of the Constitution,
safeguarding fundamental rights against the changing political landscape. Tushnet's approach
prompts a nuanced exploration of the relationship between legislative enactments and
constitutional norms, acknowledging the complexities and tensions inherent in this interplay.

The Evolving Role of Political Parties:

Mark Tushnet asserts that the Constitution extends its influence beyond the written document
to encompass the framework within which political parties operate. While acknowledging
recent changes in party organization, Tushnet argues that the Constitution still has some impact
on shaping the operations of political parties. While Tushnet's primary focus is on the American
context, parallels can be drawn to the Indian political landscape. Even though the Indian
Constitution does not explicitly mention the functioning of political parties, it lays down the
fundamental principles, rights and duties that indirectly influence the nature and conduct of
political parties. For instance, the 10th schedule of the Constitution, commonly known as Anti-
defection Law, influences the internal operations of political parties by discouraging defections
and promoting stability12. Another instance is Article 330 and 332 of the Constitution which
provides for the reservation of seats for Scheduled Castes (SCs) and Scheduled Tribes (STs) in
the Lok Sabha and state legislative assemblies. Political parties must adhere to these
constitutional provisions when nominating candidates, reflecting the influence of the

11
Ibid.
12
Akash Dixit, Abhishek Bhatt and Shubham Saini, 'The Efficacy of Anti-defection Law in India - A
Comprehensive Analysis' (2022) Volume II Indian Journal of Integrated Research in Law Issue I, ISSN 2583-0538.
Constitution on the composition of parties. Further, Article 19(1)(c) of the Constitution
guarantees the fundamental freedom to form an association which include freedom to form and
be the member of political parties.13 Thus Indian Constitution sets the broader parameters
within which the political parties operate, influences the democratic and inclusive character of
political parties ensuring that their function aligns with constitutional values and principles.

Understanding the Constitution's Impact on National Policies:

Tushnet challenges the notion that the Constitution's importance is confined to Supreme Court
decisions. He argues that most crucial national policies are determined by political choices
rather than Court interpretations. By examining issues such as the filibuster rule's connection
to the Constitution, he demonstrates how political decisions directly influence policy outcomes.

Mark Tushnet's perspective on the Constitution's influence, extending beyond Supreme Court
decisions to encompass political choices, finds resonance in the Indian context, where
constitutional interpretation is not solely confined to judicial pronouncements. In India, the
Constitution serves as a living document that interacts with political and legislative processes,
shaping crucial national policies. Several Indian case laws and instances reflect the
multifaceted influence of the Constitution beyond the judiciary. Landmark legislative
initiatives, such as the Right to Information Act, 2005, exemplify transformative legislation
emerging as a response to constitutional ethos, showcasing the manifestation of political
choices reflecting constitutional principles14. Reservation policies, as seen in the Mandal
Commission Case15 illustrate the constitutional dialogue between the judiciary and political
choices, with subsequent implementation reflecting legislative responses to constitutional
imperatives of social justice16. Economic reforms in the 1990s, including liberalization, were
driven by political choices aligning economic policies with constitutional values of justice and
equality17. Social welfare legislation, like the Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA), 2005, demonstrates legislative responses translating
constitutional principles into actionable policies. Environmental laws, as seen in the National
Green Tribunal Act, 2010, showcase the Constitution's influence in responding to evolving

13
Balakotaiah v. Union of India, AIR 1958 SC 232
14
Varsha Khanwalker, ‘The Right to Information Act in India: Its Connotations and
Implementation’([2011)]72(2)Indian Journal of Political Science387-393
15
Indra Sawhney v. Union of India AIR 1993 SC 477
16
Mukul Shastry, ‘Reservation Policy in India: A critical evaluation’May 17,2009, Available at SSRN:
https//ssrn.com/abstract=1406222 accessed on 15 December, 2023
17
Alexander Fischer, 'Which Road to Social Revolution? Liberalization and Constitutional Reform in India' (2007)
Heidelberg Papers in South Asian and Comparative Politics, ISSN 1617-5069
challenges, emphasizing the role of legislative choices in implementing constitutional goals. In
each instance, the Constitution actively shapes national policies through legislative and
executive actions, aligning with Tushnet's concept of a constitution outside the courts and
contributing to the dynamic evolution of constitutional governance in India.

Conclusion

In conclusion, Tushnet's work encourages readers to shift their focus from a narrow
understanding of the Constitution's role in protecting fundamental rights to a broader
perspective that encompasses its impact on shaping political processes. In essence, the
Constitution is significant due to its intrinsic connection to politics, elections, and the
formulation of policies. It serves as the defining framework for political processes and provides
the basis for enacting social welfare legislations. The principles and values embedded in these
policies align with constitutional ideals, making the Constitution a pivotal instrument in
shaping the political landscape and ensuring the implementation of welfare-oriented measures.
The constitution is also important for checking the tyranny and for limiting the power of the
government, so that it should not exercise whimsically, arbitrarily, for self-aggrandisement and
against the basic interest of the people18. By exploring the intricate connections between the
Constitution, legislation, and political parties, Tushnet prompts us to question not just why the
Constitution matters but how it influences the people.

18
Rajeev Bhargava, 'Why We Need a Constitution' (2018) The Hindu
https://www.thehindu.com/opinion/columns/why-we-need-a-constitution/article24361253.ece accessed on 14
December, 2023