The New Constitutional Order.

• Author: Bond, James
• Position: Book Review

The New Constitutional Order By Mark Tushnet Princeton, N.J.: Princeton University Press, 2003.

Pp. x, 265. $42.00 cloth, $22.95 paperback.

Mark Tushnet, the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center, is one of the doyens of the critical legal studies (CLS) movement; and his election to the presidency of the American Association of Law Schools in 2003 confirmed his preeminent standing among the left-wing faculty who currently dominate American law schools. The New Constitutional Order is the aging Tushnet's attempt to make sense of their defeat in the real world they once hoped to transform into a socialist paradise.

In their youth, members of this group imagined that the national government would guarantee "the [judicially enforceable] right to earn enough to provide adequate food and shelter and clothing, and recreation ... to provide adequate medical care, a decent home ... [and] a good education, as well as the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment" (p. 2). This list of affirmative tights is drawn from Franklin D. Roosevelt's little-remembered 1944 State of the Union address, in which he proposed that they be recognized as a second Bill of Rights (Franklin Roosevelt, Annual Message to Congress, January 11, 1944).

Tushnet asserts that this second Bill of Rights provided the guiding principles for "the New Deal-Great Society" constitutional order, which he insists prevailed from the 1930s to the 1980s (p. 1). The fundamental "guiding principle [of this order] was egalitarian liberalism" (p. 8). Although a scholar who examined FDR's first two terms through rose-colored glasses might plausibly find those principles immanent in the New Deal, Tushnet's assertion that they shaped Lyndon Johnson's legislative agenda and the jurisprudence of the Warren Court is astonishing. Neither LBJ's addresses nor the legislative debates of the Congresses that enacted the Great Society programs, which so energized the left for a brief political season in the 1960s, ring with invocations of FDR's proposed second Bill of Rights. Even more telling, the Warren Court never cited FDR's 1944 State of the Union Address or the language of his proposed second Bill of Rights in support of any of its decisions, including those that the CLS brigade mistakenly read as harbingers of the socialist paradise to come. The constitutional basis for those decisions is...