Charges of Political Infeasibility
The Problem of Descriptive Irrelevance
Beyond value neutrality, there appears to be no consensus among current individual rights scholars about the appropriate theory for deciphering fundamental legal values. For some, the touchstone may be common or conventional morality,157 whereas it may be meta-constitutional moral philosophy for others.158 In either case, is liberal legal theory descriptively relevant? Does it bear any realistic relationship to the ways in which judges actually function when enforcing legal rights?159 Is there more of prescription than description in the scholars' methods?
Ultimately, the charge of descriptive irrelevance is a serious one. Individual rights theory is not offered to readers as pure political philosophy, to be judged according to the standards of coherence and consistency applied to that study. Rather, it is likely to be meaningful to the legal community only if it is descriptively accurate. We return to this point in our examination of the 'linguistic link' for a new consciousness.
The Problem of Balkanization
Liberalism appears today to be composed of an amalgam of special interests. On both its political and academic fronts, liberalism is associated with a number of narrowly focused ideological groups that have not been integrated into a broad, common perspective. As noted in Part II, political commentators have characterized the Democratic Party as a coalition of 'too many messages,'160 increasingly factionalized by interest groups committed to 'categorical representation.'161 The balkanization of the liberal political spectrum has been represented as the main cause for the electoral failures of the Democratic Party since the 1970s.162
Liberalism is no less factious in the legal academy. Liberal scholars of the current individual rights tradition divide over the fundamental values to be accorded constitutional protection,163 and stratify into theoretical schools on the justifications for constitutional review.164 Naturally, factionalism dilutes the power of liberalism, both as a political and as an intellectual force. The question that should pique the liberal legal scholar is whether the normative dilemmas of liberal theory are at all responsible for this balkanization. In fact, it seems likely that the fragmentation in the liberal political spectrum is, in some significant sense, related to the prevalence of individual rights consciousness in liberal theory. With its emphasis on individual freedom and the sanctity of personal preferences, liberalism celebrates the 'id.'165 The competitive pursuit of a large share of the pie, whether economic wealth, social power or fame, segments the liberal spectrum into discrete interest groups, and accentuates their ideological differences instead of their commonalities. The loss, of course, is the power of unity and the sense of any belonging. Kenneth Karst characterizes the problem of liberal balkanization in his poignant observation that '[t]he community that matters is the cold, often fleeting, community of the exchange transaction,' where 'the individual stands alone before forces beyond his or her control.'166
The Problem of Conservative Subversion
Although individual rights analysis became the stronghold of liberal values in the Warren Court era, the emergence of a notable strand of the new conservatism in constitutional doctrine also has occurred in the name of protection of fundamental liberties.167
There is no intrinsic alliance, of course, between fundamental rights analysis and liberal political interests.168 Moreover, there is little reason to believe that the individual rights consciousness promoted by today's liberal constitutionalists cannot be co-opted by tomorrow's conservative scholars.169 Liberal theorists who remain wedded to fundamental rights analysis may constantly be threatened with encroachment on their hegemony by the political right.
