The Vices of Institutional Instrumentalism A Comment on Tushnet, The Rights Revolution in the Twentieth Century

Abstract

Reading Tushnet's careful analysis of the history of the American rights revolution filled me with envy. One of the great advantages of writing about law in the U.S. is the ability to experience and benefit from centuries of sustained legal evolution. The world of an Israeli law professor whose horizons barely reach the middle of the twentieth century is impoverished in comparison to the enriching experience of living in a mature and rich legal tradition such as that of the U.S.Living in a different legal tradition and being ignorant of legal history—a field which only began to develop in Israel in the late 1990s—it will be pretentious on my part to try and challenge Tushnet's findings or even to try and explore the similarities and differences with the rights revolution in the Israeli legal system. Instead, I wish to explore the relevance of Tushnet's findings to constitutional theory and argue that constitutional theorists have some important lessons to learn from Tushnet's careful historical observations.