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Expert Lecture — Archived
Constitutions, Courts, and the People: Reflections on Transformative Constitutionalism
Prof. Mark Tushnet
Discourse Abstract
Transformative constitutionalism is often invoked as a promise of deep social and economic change through constitutional means, yet its constitutional character and institutional limits remain contested. This lecture, delivered by Professor Mark Tushnet, examines transformative constitutionalism within the broader framework of programmatic constitutionalism, through which modern constitutions articulate substantive commitments to social justice, equality, and material well-being alongside democratic procedures.
The lecture traces the emergence of transformative constitutionalism in comparative constitutional practice, particularly in post-apartheid South Africa, and situates it within wider traditions of transformative politics aimed at altering deeply unsatisfactory social conditions. It then explores the constitutional mechanisms through which transformative goals are pursued, ranging from political and rhetorical commitments expressed in constitutional preambles and directive principles to judicially enforceable rights.
Against this backdrop, the lecture critically evaluates the role of courts in enforcing transformative constitutional commitments. Drawing on comparative examples from India, Ireland, Latin America, and the United States, it highlights both the potential and the limits of judicial intervention in addressing complex, polycentric questions of social and economic policy. The lecture ultimately argues for a cautious understanding of transformative constitutionalism, emphasising the importance of democratic politics and institutional balance in realising constitutional transformation.
About the Speaker
Professor Mark Tushnet is a leading scholar of constitutional law and constitutional theory, widely recognised for his contributions to comparative constitutional law and critical constitutional studies. He is the William Nelson Cromwell Professor of Law Emeritus at Harvard Law School, where he taught for several decades and shaped generations of constitutional scholars. Professor Tushnet’s scholarship engages deeply with questions of judicial review, constitutional interpretation, and the relationship between courts, democratic politics, and social transformation. He is closely associated with the critical legal studies movement and is particularly known for his influential critique of strong-form judicial review, arguing for a greater role for democratic institutions and popular constitutionalism. His work has had a significant impact on constitutional debates across jurisdictions, including India, South Africa, and Latin America. He has served as a law clerk to Justice Thurgood Marshall of the United States Supreme Court and has held academic positions at institutions such as Georgetown University Law Centre and the University of Wisconsin–Madison. Professor Tushnet is among the most frequently cited constitutional law scholars globally and is a regular commentator on constitutional courts, rights adjudication, and democratic governance. His major works include Taking the Constitution Away from the Courts, Weak Courts, Strong Rights, The New Constitutional Order, and Taking Back the Constitution, among numerous other books and articles that have shaped contemporary constitutional theory.
TRANSCRIPT
Transcript - Constitutions, Courts, and the People- Reflections on Transformative Constitutionalism by Mark Tushnet.docx