Vol. 13 No. 6 (June 2003)

THE NEW CONSTITUTIONAL ORDER by Mark Tushnet. Princeton: Princeton University Press, 2003. 288 pp. Cloth $29.95 ISBN: 0-691-11299-1.

Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu

Mark Tushnet begins the preface to his latest book by inviting readers to think about it in the context of work in critical legal studies, a movement that he helped to initiate and one to which his many and varied scholarly contributions over the years are associated. He writes in the preface’s first sentence: “In light of the common perception among legal academics that the analytic approaches associated with the critical legal studies movement are moribund, I think it is worth noting here that the argument in this book is, in my view, continuous with the arguments about constitutional law and theory I have been making since I began writing in the field” (p. ix). His previous work (see especially, Tushnet, 1988 and 1999) sought to link “specific constitutional doctrines to large-scale social structures.” He suggests that the current book, an exploration of the meaning and  significance of recent trends in constitutional development, is similar in intention in that it provides a “descriptive sociology” that seeks to connect “constitutional doctrine to some aspects of the way in which political institutions actually operate in the present day” (ix). Thus, the book’s preface suggests two questions to consider in thinking about its substance. How well does Tushnet link doctrine to political practice? And, to the extent that this work represents developments in critical legal studies, what does his descriptive sociology of constitutional development tell us about this movement at the beginning of the 21^st century?

The book’s major argument is suggested by its title: we are now in a new constitutional order. Drawing usefully on political science research and writing on regimes in international relations and American political development, Tushnet sees a constitutional “regime,” or “order”—terms that he uses interchangeably, as “a reasonably stable set of institutions through which a nation’s fundamental decisions are made over a sustained period, and the principles that guide those decisions” (p. 1). Thus, constitutional orders are constituted by political and legal institutions and the principles that they enunciate. To Tushnet, constitutional orders are not transformed overnight in response to crises, but rather develop and are transformed gradually. Although dominant institutions and principles may be identified, at any specific point in time “residues” from the prior regime may remain.

Tushnet distinguishes his approach and arguments about constitutional development from legal scholarship (Ackerman, 1991, 1998; Balkin and Levinson, 2001) and political science research (Halpern and Lamb, 1998) that look exclusively at courts and constitutional interpretation for signs of stability or transformation. For Tushnet, constitutional orders extend well beyond courts to all institutional arrangements throughout American national government. The description he offers places constitutional doctrine and interpretation in the context of American political institutions and more general features of the political landscape. This aspect of the book should be one of its lasting contributions, especially in the legal academy where links between law and political practice are not routinely considered.

Most of the book is devoted to an extended argument that we have turned the corner into a new order. The previous constitutional order, beginning with FDR and moving through LBJ’s Great Society was characterized by interest group bargaining and premised on the principle that individuals could petition the national government and federal courts to solve large-scale social problems. This order supplanted a regime founded on the notion that government played only the most minimal role in solving social and economic problems. The new order, according to Tushnet, began taking shape with Ronald Reagan’s presidency, received greater definition in the wake of the 1994 congressional elections, and “consolidated” during the Clinton years. Indeed, the major characteristics of this new order are encapsulated by Bill Clinton’s assessment during his 1996 State of the Union address that “the era of big government is over.” Overall, the new order is characterized by divided government, ideologically organized political parties, and a severely chastened constitutional ambition. Arguing against those who interpret current trends in constitutional interpretation as indicative of a return to the pre-New Deal constitutional order, Tushnet suggests that the Supreme Court has maintained and will likely continue to support, given current institutional arrangements across American national government, major doctrinal developments from the New Deal/Great Society constitutional order. But, Tushnet cautions, do not expect the current Court to go further or extend any of these previous doctrines. “This far and no further” seems to be the underlying principle. In general, the new order’s central guiding principle is not, as current critics suggest, that government can not solve social problems, but rather that it can not solve any additional problems.

Tushnet supports his description of the new regime in a number of ways. Chapter One makes excellent use of political science research to establish his “descriptive sociology” of current institutional arrangements and foundational principles. Chapter Two describes and analyzes doctrinal trends at the level of the Supreme Court that, Tushnet argues, supports his view that this Court is not revolutionary, taking us back  to the 1920s, but is rather quite moderate. First of all, regimes characterized by divided government are unlikely to pass major legislation and, when they do pass more modest programs, this legislation is not likely to present constitutional problems. Second, the actual decisions of the current Supreme Court do not support a commonly asserted view that it is dramatically shifting course. Among the areas that Tushnet skillfully and often creatively reviews are federalism, interstate commerce, sovereign immunity, civil rights, and civil liberties. Tushnet finds, running through much of the present Court’s decisions, a marked suspicion of the legislative process. This general orientation, Tushnet writes, helps to explain why the Court is not revolutionary, overturning all statutes that it considers unwise, but rather is modest in its ambitions. “Generalized suspicion of politics,” he writes, “gives a Court no basis for sorting unacceptable from acceptable statutes, because all statutes result from the suspicious political process…What a generalized suspicion of politics can support are decisions that discipline what the justices think are ‘obvious’ excesses. And, these excesses are likely to be precisely those statutes that push at the margins of existing doctrine…statutes that are arguably justified by straightforward readings of existing doctrine but are somehow innovative” (p. 95, emphasis in original). Thus, Tushnet concludes that “actually implementing a generalized suspicion of politics means  adopting a chastened rather than a revolutionary vision of the Court’s own ability” (p. 95).

Chapter Three considers some possible objections to his major arguments and Tushnet’s response to them. Chapter Four provides further evidence to support his descriptions through an analysis of representative writings in jurisprudence during the New Deal/Great Society regime (especially the writings of Alexander Bickel) and the current constitutional order. Tushnet sees work by Cass Sunstein (1999) that calls for “minimalist” opinions decided on narrow grounds, especially on issues that divide the country, as fitting well with the central premises of the new constitutional order. Finally, Chapter 5 looks at the implications of globalization for some of the trends discussed earlier. A conclusion assesses the prospects of furthering progressive regulatory programs in such areas as environmental and consumer protection. Drawing on Clinton initiatives in environmental protection and workplace safety, and scholarly works on “democratic experimentalism,” Tushnet advocates a form of regulatory policymaking that focuses on small scale, practical problems that may be worked on democratically at local levels by laypersons. This model may produce politically desirable results in a way that does not violate fundamental principles guiding the new constitutional order.

Throughout the book, arguments and analyses are clearly and powerfully presented. Both in style and substance, this work is provocative, challenging, creative, and often insightful. Tushnet seems to enjoy a good fight, highlighting when appropriate the specific ways in which his arguments are distinguishable from those made by others and the reasons why his positions are better or more accurate. Those appreciating a good argument—one that anticipates and confronts possible counterarguments—will enjoy the style and admire the skills on display.

Readers who are more scientifically oriented and most comfortable reading work that employs conceptual frameworks, theories, and hypotheses, will find the book more frustrating and possibly confusing. Tushnet uses positivist political science to help him with his project of “descriptive sociology.” The work that he relies on develops theoretical frameworks and provides empirical tests of derived hypotheses on appropriate cases. But Tushnet himself avoids characterizing his project as one of testing hypotheses or applying frameworks to cases.  Instead, at one point he refers to his arguments about a new constitutional regime as “a rhetorical strategy” (p. 5) and writes later that “[a]ll I really claim is that thinking about the possibility that we are in a new constitutional order illuminates our current condition in a way that thinking that we are in a period of aimless drift or in a period foreshadowing a true transformation does not” (p.96). Comparing his project to Ackerman (1991, 1998), who theorizes the conditions under which constitutional transformations will most likely occur, Tushnet seems to suggest that he has no ambitions to develop a general theory of constitutional development. He writes that his approach “lacks the crispness of Ackerman’s. Without formal criteria [of transformation] to rely on, I cannot avoid making judgments, which others can readily contest, about which institutional arrangements and guiding principles are stable enough to be part of the constitutional order” (p. 4). At one point he seems to place part of the blame on political science, revealing, I believe, his ambivalence about the social scientific enterprise more generally. “The ‘science’ in political science,” he writes, “cannot take human willfulness…and mere chance into account. But, as we all know, willfulness and chance play a large role in the day to day workings of politics. At best, then, I can describe large trends that seem likely to prevail but that might be changed at any moment by unpredictable events or human decisions” (p. 6). While most would agree that chance does indeed play a role in political practice, “events” and “human decisions” may become more predictable and understandable when incorporated in theoretical frameworks and tested. Indeed, a more fully developed framework tested on appropriate cases might then provide useful guidance to those seeking social, political, and constitutional change.

Thus, Tushnet’s project is not to theorize constitutional development, but rather to explore whether or not the notion of a new constitutional order, with a specific set of institutional arrangements and guiding principles, sheds any light on constitutional law, constitutional doctrine, legislative action, and jurisprudential movements. At some points in the book, the style in which he chooses to present his argument leads to a striking ambivalence about the accuracy of his argument—maybe we are witnessing a new order, but perhaps not. But, even when ambivalent, he gives reasons, after assessing evidence to the contrary, to conclude that his original thoughts are correct. Given his style, somewhat akin to legal advocate, and the extensive use of social science research in a book that is, at best, conflicted about the “science” in social science, it is not surprising that the book jacket states that Tushnet’s arguments “will not be received without controversy.” This book will make its readers think. It does not provide definitive answers based on a precisely specified theoretical model.

I wondered throughout the early chapters, as Tushnet made his major claims, how he viewed the Bush Administration and policy developments since September 11, 2001. Tushnet does seem concerned that such Bush Administration policies as extensive tax cuts and faith based initiatives may indicate a shift to a “newer” constitutional order. He explicitly considers this possibility, writing as follows: “Were I forced to make a choice, I would still say there is already a new constitutional order in place, that its political structure centers on a government divided between two ideologically opposed but internally unified parties, and that its governing  principles are chastened versions of the New Deal-Great Society constitutional order. But the possibility that there is a quite different constitutional order around the corner is substantially greater than it was when George Bush was inaugurated” (p. 111).  Unfortunately, most likely due to the timing of the book’s preparation, he says very little about the terrorist events of 9/11/01. Indeed, the book includes discussion of this potentially transforming event on only four pages of text (pp. 108-111). Tushnet obviously completed the manuscript prior to the 2002 midterm congressional elections—elections that produced Republican control of both congressional chambers. And he does not discuss how the post-9/11 government developed a policy of preemptive military strikes, created a Department of Homeland Security, passed the Patriot Act, and unleashed a Justice Department intent on rounding up all suspected domestic terrorists. Those actions seem to suggest that the “regime” is taking on new problems and moving in new directions, signaling a new role for the government. So much for chastened ambitions!  

In thinking about this book in the context of critical legal studies, I recalled my first encounter with this movement in reading Tushnet’s seminal article on legal rights (Tushnet, 1984). Published in the movement’s early days, this article viewed rights as social constructions that, in their invocation and use, constitute views of social reality that work to the disadvantage of progressive movements. In the conclusion to this article he suggests that viewing rights as constitutive is “liberating” because “[i]t rests on an understanding of the social world that tells me that nothing is necessary, that everything is contingent, that I need not resign myself to how things are or to supporting those modest changes that are possible given the constraints placed on social life by relatively unchanging human nature or by the demands of some technical apparatus” (p. 1402). Although some may question how these arguments might lead to practical programs benefiting progressive movements, it is quite clear that his approach to rights is “critical,” challenging dominant conceptions of the world at the very foundation of liberal legal theory.  

The arguments Tushnet made in 1984 to abandon rights and think creatively about new possibilities for social transformation seem to me to be fundamentally different from the arguments in this book. In fact, the Tushnet of the 1980s might view the idea of a “new constitutional order” premised on a chastened constitutional ambition as itself a social construction narrowing the political vision and, thus, working against the interests of progressive movements. Tushnet in 1984 is rethinking fundamental premises of a dominant ideology and beginning to explore reconstructive progressive projects. Tushnet in 2003 is describing prevailing institutional and ideational structures and suggesting practical ways to tinker at the margins in progressive ways, but ways that ultimately leave the structures intact. Tushnet does write in the preface that his advocacy of Clinton-like regulatory reform should be read along  with more “utopian” proposals, such as arguments to abolish judicial review in his previous book (Tushnet, 1999). But he never returns to this theme nor explains in this volume how his advocacy of a populist constitutional law from the 1999 volume might usefully supplement or enhance his current set of descriptions and proposals.

Of course, it is impossible to do everything in one book and good books leave readers wanting more. A question that remains is how to reconcile, in work deemed “critical,” the need for practicality with interests in broader social transformation. In struggles for social justice, are there alternatives to the seemingly irreconcilable choice presented by liberal reform at the margins and “utopian” programs that seem, by definition, to have little chance of seeing the light of day? Might critical legal studies be usefully informed by cultural studies of law that highlight the transformative potential of everyday resistance to dominant structures and institutional arrangements? Perhaps Tushnet will write more expansively in the future about such questions and the role of critical legal studies in a constitutional order whose environment now includes a war on terrorism with no end in sight. I, for one, will look forward to reading it. Now, more than ever, progressive movements need ideas, theories, strategies, and practical advice on the ways in which hegemonic ideas and prevailing institutional arrangements may be successfully resisted and transformed.

REFERENCES:

Ackerman, Bruce. 1991. WE THE PEOPLE: FOUNDATIONS. Cambridge: Harvard University Press.

Ackerman, Bruce. 1998. WE THE PEOPLE: TRANSFORMATIONS. Cambridge: Harvard University Press.

Balkin, Jack M. and Sanford Levinson. 2001. “Understanding the Constitutional Revolution.” 87 VIRGINIA LAW REVIEW 1045.

Halpern, Stephen C. and Charles M. Lamb. 1998. “The Supreme Court and New Constitutional Eras.” 64 BROOKLYN LAW REVIEW 1183.

Sunstein, Cass. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.

Tushnet, Mark. 1984. “An Essay on Rights.” 62 TEXAS LAW REVIEW 1363.

Tushnet, Mark. 1988. RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW. Cambridge: Harvard University Press.

Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.

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Copyright 2003 by the author, Mark Kessler.