Earl Warren is dead.
A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.
The following commentary is a reconstructive criticism1 written from the perspective of two liberals2 concerned about the future of 'legal liberalism.' We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.
In Part I, we outline the reasons for believing that there is cause for alarm, though not resignation, in the liberal legal community. We also define the contours of what we mean by 'liberal legal scholarship.' In Part II, we discuss how conservatives have managed, with varying degrees of success, to frame the nature of public law discourse in the 1980s, and how liberals have reacted, and are likely to continue to react, to this phenomenon. We then describe what we believe to be the pitfalls of such 'reactive' scholarship.
In order to suggest some broad avenues for future liberal scholarship, we offer in Part III a historical account of the approaches taken by liberal scholars to meet the challenges of conservatism in law and politics during the period from 1876 to 1937. While the parallels between that era and our own are, of course, not exact, the lessons of that period do offer a wealth of experience and thought upon which liberals may draw. Finally, in Part IV, we examine three avenues that may be available, among others, for intellectually powerful and politically effective liberal legal scholarship. In doing so, we analyze inherent shortcomings of liberal legal theory, and suggest that future liberals reevaluate their commitment to current individual rights consciousness.
It is not our purpose to develop any full-blown constitutional theory. Rather, we aim to critique predominant intellectual problems in liberal legal theory, thereby identifying the constructs that liberal scholars must alter or abandon; to suggest the general contours within which a new liberal scholarship, however defined, might operate; and, finally, to introduce, by way of illustration, some possible alternative avenues for liberal legal scholarship.3 Alternatively, at the least, we hope that our comments will spark debate and discussion among liberal scholars.
