Document Type

Article

Publication Date

2005

Abstract

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. The discussion begins by viewing the Guidelines' characterization of Supreme Court jurisprudence as an indication of the Court's "old center." The discussion then examines the Court's subsequent development to reach an understanding of the Court's "new center." Professor Tushnet finds that although the Court at times seemed to entertain some views espoused by the Guidelines, the present Court's center is remarkably like the Court's center in 1988. Original understanding remains only one method of constitutional interpretation -not even the most important one - and legislative history continues to play a role in statutory interpretation. Furthermore, changes in Court's jurisprudence involving standing, unenumerated rights, and congressional power remain limited (though there appear to be greater constitutional protections of property rights). The only notable difference is that the present Court has developed doctrines that could swing constitutional interpretation toward the approach taken by the Guidelines should newly appointed Justices want to endorse that approach. But for now the current Court is much the same as before.

Publication Citation

83 N.C. L. Rev. 1205-1228 (2005)

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