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.
"This book will make its readers think."--Mark Kessler, Law and Politics Book Review
"The New Constitutional Order gracefully synthesizes political science literature with judicial doctrine. The book is ambitious and original. In it, Mark Tushnet combines insightful commentary on changes to the American political regime with subtle analysis of important judicial doctrines that have too often been neglected by leading constitutional theorists."--Christopher L. Eisgruber, Director, Program in Law and Public Affairs, Princeton University
Table of Contents:
INTRODUCTION: The Idea of a Constitutional Order 1
CCHAPTER ONE: The Political Institutions of the New Constitutional Order 8
CHAPTER TWO: The Supreme Court of the New Constitutional Order 33
CHAPTER THREE: Beyond the New Constitutional Order? 96
CHAPTER FOUR: The Jurisprudence of the New Constitutional Order 113
CHAPTER FIVE: Globalization and the New Constitutional Order 142
CHAPTER SIX: Regulation in the New Constitutional Order 165
Table of Cases 255
Other Princeton books authored or coauthored by Mark Tushnet: