FUTURE LIBERAL LEGAL SCHOLARSHIP: THIRD AVENUE FOR RECONSTRUCTIVE THOUGHT

Normative Scholarship: Focus on Individual Rights Consciousness

A third avenue for reconstructive scholarship entails the reexamination of the contemporary liberal legal emphasis on 'individual rights consciousness.' Such a reexamination is necessary in order to answer telling criticisms which have been leveled against liberal rights theory. Ultimately, this self- evaluation revitalizes. It enables liberals to abandon concepts whose intellectual and political force is depleted. Concomitantly, it empowers them to embrace a 'new consciousness.'

We begin this section with comments introducing two major categories of assaults on legal liberalism. These categories are then examined in turn. First, various problems of intellectual bankruptcy, involving both normative premises and methodology, are discussed. Second, several problems of political infeasibility are identified. Against this backdrop, we sketch a few ideas which we believe integral to the evolution of a new consciousness.

Liberal legal scholarship has become a captive of 'individual rights consciousness.' With few exceptions, the most influential works of liberal constitutional scholarship in the past forty years have addressed individual rights jurisprudence.¹²¹ Since the turn of the century, leading constitutional law school texts have concentrated ever more heavily on individual rights issues.¹²²

The current conservative profile of the federal courts may threaten the liberal individual rights movement. Even if this profile should change, the contemporary state of individual rights consciousness protends its own demise. As will become evident, little of liberal theory has been spared assault. Legal liberalism is under attack by the more radical left¹²³ as well as the conservative right.¹²⁴ Their indictments are not to be taken lightly; and yet, there have been few attempts among liberal scholars to meet the charges head on.¹²⁵ The embattled posture of liberal theory offers a challenge: will the liberal scholar evaluate, in a serious and intellectually honest fashion, the failures of individual rights jurisprudence, in order to reform the liberal normative program?