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.
