Links Between Liberal Politics & Scholarship
If it is to be meaningful and effective, however, liberal legal scholarship directed towards substantive and procedural legislative reforms must establish a context in which its proposals can be realized. This means that there must be a bridge between liberal legal scholarship and liberal politics.
The contemporary emphasis on federal judicial review has heightened the tension between liberal legal scholarship and liberal politics; that is, the tension between the antimajoritarian principles of the former and the majoritarian influences of the latter. This tension should not exist. Contrary to contemporary wisdom, the Bill of Rights is not, except for the first amendment, a minoritarian credo. Rather, it protects the interests of the entire citizenry from governmental abuses of power. This purpose is undermined when liberal legal scholars treat the Bill of Rights axiomatically as pitting its values against majoritarian interests. For example, liberals are largely responsible for the misimpression that the sole constituency protected by the fourth amendment is the criminally accused.101 Liberal scholars would do well to consider the extent to which their characterization of protections against government strikes a responsive chord with the general public.102 Unless this is accomplished, the conflict between liberal politics and the liberal rights enterprise is not likely to be resolved.
Another reason the link between liberal legal scholarship and liberal politics has not been fortified is that contemporary political liberalism is intellectually stale. As the pollster Patrick Cadell observed: 'The Democratic Party cannot afford four more years of intellectual stagnation. . . . It cannot hope to be successful at the national level if it is unable to restore its primacy as the party of ideas.'103 Although in the 1984 presidential election liberals crusaded on a platform of supposedly 'new ideas' (as they also have in 1988), '[i]n the end, the chief architect of the Democratic campaign was again Franklin Roosevelt. . . . There, was, of course, one other dominant figure in Democratic thinking and campaigning in 1984--the opponent, Ronald Reagan.'104 This paucity of ideas has lfet liberal political thinkers in a reactive posture, responding predictably to the agenda set by the New Right. Thus the problem for these liberal political thinkers was both their unwillingness to accept innovations which challenged the FDR policies for implementing traditional liberal values and their inability to forge innovative proposals of their own. Contemporary political liberalism had grown fat on the thinking of its predecessors, while conservative Republicans usurped their hegemony as the 'party of ideas.'105
Part II of this commentary demonstrated that a similar pattern is manifesting itself in the area of public legal scholarship. Here, too, conservative legal thinkers, ranging from jurists and government officials to academicians, are increasingly setting the public law agenda by appealing to a new (or newly packaged) code of constitutional ideas. And here, too, liberal legal theorists have either resorted to the FDR/Warren Court legal catechism, or else they have assumed a reactive analytical posture. Caught in a dual struggle to develop their own sense of direction on the one hand, and to fend off the onslaught of the 'new conservatism' on the other, liberal political thinkers have been unable to reinforce their ties to the liberal legal community.
If liberalism is to regain a preferred status in American politics and jurisprudence, its dfefendants must commit themselves to a change, not of ideals, but of ideas. Among other things, the establishment of new liberal 'think centers' may be capable of ushering in the kind of intellectual enthusiasm which the Brookings Institution gave to the Johnson Administration.106 The legal and political proposals developed in these new centers need to be conceptually sound, operationally viable, and rhetorically persuasive.107 Similarly, there need to be liberal scholarly associations akin to the influential and conservative Federalist Society, which has linked both students and scholars to government policymakers and federal judges.108 Finally, the liberal legal and political communities are in dire need of periodicals willing to break a new lance for alternative approaches to societal ills. In the past, such periodicals have offered a vital forum for the exchange and distribution of ideas and programs in furtherance of liberal values.109
