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.
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