What do I mean in saying that we need to think about the Constitution "at the cusp?" I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been teaching constitutional law for a long time may find ourselves in the position of law professors in 1938 and 1939, whose way of thinking about the Constitution was developed in the 1920s: we are intimately familiar with a whole raft of cases that simply do not have much to do with the Constitution in this new constitutional order. A law professor who said in 1940 that the farm program at issue in Wickard v. Filburn would be unconstitutional under the standards the Court used in the 1920s might have been right, but his statement would also have been profoundly irrelevant. I sometimes have the same feeling about critical comments about the Supreme Court's recent work: the criticisms are that the Court's current actions are not what the Court would have done ten years ago, and that the Court's actions are inconsistent with the way most law professors have come to understand the Constitution. This criticism may be true enough, but it is perhaps profoundly irrelevant.
34 Akron L. Rev. 21-35 (2000)
Scholarly Commons Citation
Tushnet, Mark V., "Thinking About the Constitution at the Cusp" (2000). Georgetown Law Faculty Publications and Other Works. 230.