FUTURE LIBERAL LEGAL SCHOLARSHIP: FIRST AVENUE FOR RECONSTRUCTIVE THOUGHT

Functional Scholarship: Focus on Law and Politics

One avenue for reconstructive thought in which liberal public law scholars might channel their efforts involves the study and promotion of national and state reform legislation. Given their preoccupation with federal decisional law bearing on constitutional issues, these scholars have devoted little attention to the political lawmaking arenas.⁹⁴ Unlike an earlier generation of scholars writing within or outside⁹⁵ of public law,⁹⁶ contemporary liberal scholars have not demonstrated a real confidence in the capacity of legislative bodies to safeguard civil liberties.

Yet, attention to liberal legal reform scholarship is important and necessary for at least five reasons. First, reform legislation may offer liberals the most viable opportunity for affecting the direction of public law.⁹⁷ Second, reform legislation scholarship helps to bridge the gap between liberalism and majoritarianism, thus fortifying the link between liberal law and liberal politics. In this regard, Michael Kinsley of the New Republic has observed, '[g]etting hooked on judicial policy making is probably the biggest mistake of postwar liberalism.'⁹⁸ As a corrective, liberal legislative reform scholarship could provide at the very least a salutary corollary to rights-affirming, antimajoritarian forms of judicial review as well as a healthful antidote to those forms that run counter to the liberal ideal.

Third, such scholarship is needed to fill the vacuum created by the mass of individual rights decisional law which has replaced systematic legislative solutions to a variety of social problems.⁹⁹ Fourth, legislative reform scholarship need not characterize an interest sought to be protected as 'fundamental' before arguing that the government is obligated to take some affirmative action. That is, such scholarship is premised on the notion that individual and group interests can be important even if they do not rise to the level of core constitutional rights dependent on judicial protection.

Finally, broad reform legislation scholarship is vital if a multitude of socioeconomic problems such as health care, joblessness, urban development, pollution, and poverty and the criminal justice system are to be addressed. These interests, important as they are, do not easily lend themselves to federal judicial review and constitutional resolution. Such problems represent the 'unwelcome side effects' of America's socioeconomic progress in the twentieth century.¹⁰⁰ Liberal legal scholars betray the cause of liberalism if they either neglect discussion of such issues or confine their analysis to constitutional discourse dependent on the current status of decisional law.