THE LESSONS OF HISTORY: BEYOND REACTIVE SCHOLARSHIP

If liberal public law thinkers direct their efforts primarily to reactive scholarship, they will perpetuate the single-minded focus on the federal judiciary's development of individual rights. This is the orientation that has characterized liberal legal scholarship in the past four decades. But the emergence of a more conservative judiciary alone demands that liberal scholars reorient their efforts away from a frustrating dialogue with the federal bench and toward some, as yet, unidentified new approaches. The liberal defense of constitutional theories of judicial review and Warren Court doctrine must be supplemented, perhaps reconsidered, by a new agenda. The question is what should be the goals, the agenda, of liberal legal scholarship.

Fortunately, history provides some guidance on these questions, the type of guidance which might serve as a paradigm for reconstructing liberal legal thought. In the face of a conservative stranglehold on national politics from 1876 to 1912, liberal scholars immersed themselves in constitutional politics quite different from today's constitutional scholarship. Liberal scholars then deliberately emphasized the links among constitutional analysis, the regulatory power of governmental institutions, and liberal political platforms. They preached a functional constitutionalism that would account for change in the nation's socioeconomic conditions. These scholars challenged federal judicial conservatism in ways that ranged far beyond the reactive. In terms of the nature of their concerns, of the subjects and the audiences that they addressed, and of the methods that they employed, the character of the progressive and early realist public law scholarship provides valuable lessons for tomorrow's liberal constitutionalist.

Epistemologically, it may appear paradoxical to return to the past in order to advance in the future. That is, it may seem incongruous to tap history for new ideas. There is a sense, however, in which the present may shadow the period of constitutional rulings from 1876 to 1937 in American political and legal thought. As developed in greater detail, the historical parallels move along at least two tracks. First, today's conservatives, like their predecessors, have prevailed in most presidential contests since 1970 and dominate the federal judiciary; today's strongest liberal allies are likely to be found in the federal and state legislatures and state courts. Second, the progressive and realist public law scholars demanded a constitutional theory that took account of the socioeconomic consequences of conservative politics; similarly, the next generation of liberal scholars must reform the law to respond to the socially undesirable side effects of 'Reaganomics' and the political powerlessness that stems from unregulated concentrations of institutional prerogatives. From this vantage point, cyclical occurrences may justify cyclical stratagems.⁶⁴ This is not to suggest that the specific policies supported by progressive and realist scholars are to be implemented 'jot for jot' once again. Rather, these earlier liberals followed avenues of scholarship--functional, doctrinal and theoretical--that may be suggestive for contemporary liberals.