Maltz on the Lessons of 1968 for 2016

Earl M. Maltz, Rutgers-Camden School of Law, has posted The 2016 Election and the Future of Constitutional Law: The Lessons of 1968, which is forthcoming in the Hastings Constitutional Law Quarterly.

Hubert H. Humphrey (LC)

The upcoming presidential election of 2016 may very well become a pivotal moment in the evolution of American constitutional doctrine. Given the ages of a number of the sitting justices, the next President could easily have the opportunity to choose several new members of the Court. Moreover, because the Court is currently divided almost equally along ideological lines, even a single appointment could have the effect of turning the overall orientation of the Court’s decisions sharply to either the right or the left.

To illustrate the effect that a single election can have on the development of constitutional law, this article will focus on the impact of the presidential election of 1968. The article will argue that the victory of Richard M. Nixon over Hubert H. Humphrey led directly to the rejection of a variety of progressive constitutional arguments, and that if Humphrey had triumphed, the political orientation of constitutional doctrine would be far different today. The article will conclude by discussing the implications of this insight for our understanding of constitutional theory generally.