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The New Constitutional Order

The New Constitutional Order

Mark Tushnet
Copyright Date: 2003
Pages: 288
https://www.jstor.org/stable/j.ctt7t6cv
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  • Book Info
    The New Constitutional Order
    Book Description:

    In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened.

    Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems.

    Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order.

    This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists.

    eISBN: 978-1-4008-2555-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xii)
  4. Introduction THE IDEA OF A CONSTITUTIONAL ORDER
    (pp. 1-7)

    President Bill Clinton announced in his 1996 State of the Union Address that “[t]he age of big government is over.”¹ Many Republicans thought that the president was cynically appropriating Republican themes to preserve his presidency after the apparent public repudiation of Clinton’s approach to government in the 1994 elections, when Republicans attained a majority in both the House of Representatives and the Senate for the first time since 1954. Many traditional Democrats thought that the president was betraying the Democratic Party’s principles as they had been developed in Franklin Roosevelt’s New Deal agenda and Lyndon Johnson’s Great Society programs.

    We...

  5. Chapter One THE POLITICAL INSTITUTIONS OF THE NEW CONSTITUTIONAL ORDER
    (pp. 8-32)

    Constitutional orders combine novel guiding principles with distinctive institutional arrangements. Simplified greatly, the new constitutional order is characterized by divided government and ideologically distinct and unified parties. Its principles are chastened versions of the aspirations that guided the New Deal–Great Society order. Its first solid institutional gain was the election of Ronald Reagan in 1980.¹ The new constitutional order has been consolidated since the 1994 elections produced a Republican majority in the House of Representatives and the Senate.

    The New Deal–Great Society order was characterized by bargaining among pluralist interest groups, many of which obtained footholds in the...

  6. Chapter Two THE SUPREME COURT OF THE NEW CONSTITUTIONAL ORDER
    (pp. 33-95)

    The Supreme Court could do essentially anything its majority wanted in a regime of divided government. Consider statutory interpretation: The Court’s conservative statutory interpretations could be overturned if they were more conservative than a conservative president wished (because the president would then sign a new statute modifying the Court’s decision sent to him by a Congress more liberal than he),orif they were more conservative than the most conservative one-third of both the House or the Senate (because then Congress could override a presidential veto).¹ But, given sharp ideological divisions in Congress, it is quite unlikely that a Supreme...

  7. Chapter Three BEYOND THE NEW CONSTITUTIONAL ORDER?
    (pp. 96-112)

    So far I have described the characteristics of the new constitutional order. But, as I definedconstitutional orderin the introduction, such orders have to be reasonably stable. I believe the descriptions I have given accurately characterize political arrangements and judicial decisions over the past decade. Why, though, should we think that those arrangements are sufficiently stable to be called a new constitutional order?

    This chapter briefly examines some challenges to the argument I have made.¹ The first section notes the possibility that what I have described as a new order is merely the present version of a longstanding pattern...

  8. Chapter Four THE JURISPRUDENCE OF THE NEW CONSTITUTIONAL ORDER
    (pp. 113-141)

    Constitutional orders elicit theories of adjudication that explain and justify the Supreme Court’s role in each particular order. This chapter examines several candidates for the jurisprudence of the new constitutional order, focusing primarily on Professor Cass Sunstein’s arguments for what he calls judicial minimalism. The chapter begins by examining some aspects of the jurisprudence of the New Deal–Great Society constitutional order, including controversies among the justices over how they should understand their own role and, in more detail, the arguments offered by Professor Alexander Bickel for his own vision of the Court’s role. Bickel’s account of constitutional adjudication in...

  9. Chapter Five GLOBALIZATION AND THE NEW CONSTITUTIONAL ORDER
    (pp. 142-164)

    No one really knows precisely what globalization is, but nearly everyone thinks that it has some effects on domestic constitutional orders.¹ One prominent view is expressed clearly by international political economist Susan Strange, who writes that “state authority has leaked away, upwards, sideways, and downwards. In some matters, it seems even to have gone nowhere, just evaporated.”² Authority has moved upward to supranational organizations such as the World Trade Organization; it has moved downward as nations concede greater authority to the regions; and it has evaporated as transnational corporations use the threat of relocation to constrain every nation’s ability to...

  10. Conclusion REGULATION IN THE NEW CONSTITUTIONAL ORDER
    (pp. 165-172)

    Welfare reform and tax cuts: How can a government that manages to enact such programs be fairly described as having chastened constitutional ambitions? So far I have described the New Deal–Great Society as having substantive commitments to an otherwise unspecified programmatic liberalism. Law professor Richard Stewart, who oversaw the Department of Justice’s environmental programs during the first Bush administration, describes two propositions established by the New Deal: “[T]he federal government ought to take responsibility for the overall productivity and health of the economy at the macro-economic level [and] . . . had a basic responsibility for protecting individuals and...

  11. NOTES
    (pp. 173-236)
  12. BIBLIOGRAPHY
    (pp. 237-254)
  13. TABLE OF CASES
    (pp. 255-260)
  14. INDEX
    (pp. 261-265)