'What the Founders knew, and Tushnet has forgotten, is that power is like an angry bull—once you set it free, you can’t control the direction it charges. Judicial review is the fence that keeps that bull from doing any harm.' -GianCarlo Canaparo
But the most astonishing thing is that Tushnet has forgotten why judicial review exists. He is eager to tear down that fence without a thought to the dangers that it keeps at bay.
Another example: Tushnet’s approach would have to tolerate a racially segregated South. After the Supreme Court held inthat southern states had to integrate their public schools, the southern states refused to comply. President Dwight Eisenhower deployed the National Guard to enforce the order. Free speech is where Tushnet’s approach really falls to pieces. Imagine that the government makes it a crime to say things that it doesn’t like. The court would rule that the speech is protected by the First Amendment, but Tushnet says that the president could ignore that decision.
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