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Hastings Constitutional Law Quarterly

Authors

Earl M. Maltz

Abstract

The upcoming presidential election of 2016 may very well become a pivotal moment in the evolution of American constitutional doctrine. Given Justice Scalia's untimely passing and 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.

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