The Texas Law Review's on-line companion, See also, has posted Mark Tushnet's response to Justin Driver's article "The Consensus Constitution," which appeared in the Texas Law Review this spring. Justin takes on the sense that the Supreme Court adopts the "consensus" understanding of the Constitution. At the center of Justin's critique are how constitutional historians talk about are how the Supreme Court's decisions are often depicted as correlating closely with "popular" ideas. Justin is skeptical of this "consensus" vision of the Constitution.
Part of Justin's story relates to work I've been doing this summer on jurisprudence in graduation addresses at Southern schools before the Civil War (and also cemetery dedication addresses.) I am not sure what's going on in the minds of the "average" southern voter in the deacde before the war, but I am interested and have a sense of how many of the influential Southern judges and lawyers thought about the constitution and Union (or disunion). Thus, I write of public constitutionalism rather than popular constitutionalism. There may not be much of a difference, but I use the phrase to convey a sense of constitutional thought as it exists outside the Supreme Court (and perhaps more in elite circles than in the minds of the regular voter).
Also, I've also been meaning to comment on Justin's recent article "Rethinking the Interest-Convergence Thesis" in the Northwestern Law Review. I'm not going to do anything more now than mention it -- but I hope to come back and talk about it later.
The image of a statute of George Washington at Virginia Military Institute is meant to suggest that even with iconic figures like Washington that there can be rather divergent interpretations of Washington's meaning.
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