We use the expressions 'reconstructive criticism' or 'reconstructive thought' to emphasize that, although we may be critical from within by reevaluating liberal legal theory and politics, we are not critics from without, abdicating either responsibility or efforts to redirect legal liberalism.
We mention this in order to acquaint the reader with the general perspective from which we view social reality and the legal order, open-minded as we strive to be. In Part I of this commentary, we set out some definitional guidelines as to our meaning of 'liberal.' In a more quixotic sense, our liberalism consists of an abiding commitment to certain values. See J. STEINBECK, THE GRAPES OF WRATH 462-63 (1939).
A charge may be leveled against our supposition that
liberal legal scholarship is, or should be, cognizant of politics. Critics could be
troubled by what they see as result-oriented argumentation that is not value neutral. ('We
are,' so the argument goes, 'legal scholars, not mere political tacticians or moral
philosophers.')
To this charge, we offer two responses and a question. First, this charge obviously has no
bearing on the policy reform work of legal scholars directed to lawmakers and law
enforcers rather than to courts. Similarly, it has little or no bearing on what lawmakers
and executive officers should do to confine governmental action within constitutional
bounds. In fact, the charge may be faulted for its obsession with judicial review:
'Because constitutional scholarship has remained consistently preoccupied with the
institutional concerns of the judicial process, it sees constitutional law as composed of
questions about what judges should do, not what government should do.' Linde, Judges,
Critics, and the Realist Tradition, 82 YALE L.J. 227, 251 (1972).
Second, the avenues for future liberal scholarship introduced in Part IV are essentially
consistent with the premise of the charge that scholars should not transform judicial
decisionmaking into judicial statecraft. To the extent that liberal scholars pursue broad
socioeconomic reforms, we recognize the importance of directing these efforts to the
federal and state political branches.
These preliminary responses should suffice. In keeping with the theme of the charge, we
call on the critics to answer the following: Can any legal scholar who asserts any
allegiance to liberalism tolerate a vision of the Constitution which extols Plessy v.
Ferguson and deprecates Brown v. Board of Education? In other words, isn't there some
limit to value neutrality in the enterprise of a liberal legal scholar?
See Coyle, The Social Agenda Hits a Brick Wall, Natl. L.J., Apr. 18, 1988, at 24 (in spite of Reagan administration attempts, Legal Services Corporation (LSC) not abolished, but its funding drastically reduced); Ponce, Lawmakers Claim Legal Services Chairman Misused Funds, Wash. Times, July 11, 1988, at A5, col. 1; Marcus, Legal Services Corp. Drops Advisers, Wash. Post, Apr. 23, 1988, at A11, col. 1 (LSC hired lawyers to 'advise it in its attempt to persuade Congress to cut its budget.').
See, e.g., Mehler, Rightist on the Rights Panel, NATION, May 7, 1988, at 640, 642 (Commissioner Mary Frances Berry said, '[The Civil Rights Commission] has become dangerous to anyone who is interested in furthering civil rights.'); Berry, Taming the Civil Rights Commission, NATION, Feb. 2, 1985, at 106.
See Regulation: Fragile Change at Best, Natl. L.J., Apr. 18, 1988, at 26. A notable exception is Surgeon General C. Everett Koop, who admirably guided public policy affecting vital health issues.
See Kitman & Yodaiken, Celebrating (Yawn) the Constitution, NATION, July 2/9, 1988, at 1.
According to the director of the Center for Judicial Studies, a conservative think tank, '[t]here is no question that [Reagan's judicial appointments record] is the most lasting and significant achievement of the Reagan administration.' Wermiel, Reagan Choices Alter the Makeup & Views of the Federal Courts, Wall St. J., Feb. 1, 1988, at 1, col. 1.
Telephone interview with Sheila Joy, Staff Assistant to the Deputy Attorney General (July 7, 1988) [hereinafter Joy Interview]. As of the time of this writing, 30 nominees of the 398 named have not yet been confirmed by the Senate, and may not be. See Cunningham, Hanging Judges, NATL. REV., May 27, 1988, at 40.
Joy interview, supra note 9; Reagan Justice, LEGAL TIMES, May/June 1988 (Special Supplement); O'Brien, Reagan's Legacy for U.S. Courts, L.A. Times, Aug. 23, 1987, § 5, at 1, col. 1. These data were updated by the authors using Wermiel, Full-Court Review of Panel Rulings Becomes Tool Often Used by Reagan Judges Aiming To Mold Law, Wall St. J., Mar. 22, 1988, at 70, col. 1 [hereinafter Wermiel, Full-Court Review]; Wermiel, supra note 8.
See Reagan Justice, supra note 10, at 10-54. As of this writing, the Reagan judges do not constitute a majority of the judges of the Courts of Appeals for the First Circuit (2 of 6), Fifth Circuit (7 of 14), Ninth Circuit (10 of 25), and Eleventh Circuit (2 of 12).
See L. CAPLAN, THE TENTH JUSTICE 133-34 (1987); O'Brien, Judicial Roulette, in REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON JUDICIAL SELECTION 60-64 (1988).
See, e.g., Reagan Justice, supra note 10, at 7, 11, 12, 30, 31, 34, 36, 38, 39, 41 & 42 (noting influence of Reagan judges). But see Coyle, The Judiciary: A Great Right Hope, Natl. L.J., Apr. 18, 1988, at 22 (conflicting views on conservative impact of Reagan judiciary); Reagan Justice, supra note 10, at 17, 20, 24, 25, 27, 43, 49 & 52 (noting no significant influence).
See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. 2378 (1987) (recognized cause of action for unconstitutional taking in inverse condemnation); United States v. Salerno, 107 S. Ct. 2095 (1987) (sustained pretrial detention provisions of Bail Reform Act of 1984); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (limited first amendment protections for public school students); Bowers v. Hardwick, 478 U.S. 186 (1986) (no right of privacy for homosexual activity); Wygant v. Jackson Bd. of Educ., 476 U.S. 1014 (1986) (preferential layoff provision of consent decree violated Equal Protection Clause); United States v. Monsanto, 836 F.2d 74 (2d Cir. 1987) (Mahoney & Cardamone, JJ.) (seizure of tainted assets of drug and racketeering defendants); Michigan Road Builders Assn. v. Milliken, 834 F.2d 583 (6th Cir. 1987) (Krupansky, J.) (invalidated preferences in state contracts for businesses owned by blacks and women); Chicago Bd. of Realtors, Inc. v. Chicago, 819 F.2d 732, 741 (7th Cir. 1987) (Posner & Easterbrook, JJ., concurring) (while voting to uphold Chicago landlord regulation, criticized it for economic impacts and suggested other legal arguments to defeat it); Associated Gen. Contractors of Cal., Inc. v. City of San Francisco, 813 F.2d 922 (9th Cir. 1987) (Kozinski, J.) (municipal affirmative action plan for construction contracts invalidated in absence of evidence of past racial discrimination); Lelsz v. Kavanagh, 807 F.2d 1243 (5th Cir. 1987) (Jones & Davis, JJ.) (limited federal court authority to order transfer of mentally retarded from state schools to community centers); Mozert v. Hawkins County Public Schools, 647 F. Supp. 1194 (E.D. Tenn. 1986) (Thomas Hull, J.) (right of fundamentalist Christian parents to keep children out of public school reading classes because of objections to textbooks), revd., 827 F.2d 1058 (6th Cir. 1987), cert. denied, 108 S. Ct. 1029 (1988). The federal appellate and district court judges who authored the opinions above were appointed by President Reagan.
O'Brien, Reagan's Legacy for U.S. Courts, supra note 10, at 3, col. 5; see also Note, All the President's Men? A Study of Ronald Reagan's Appointments to the U.S. Courts of Appeals, 87 COLUM. L. REV. 766, 783 (1987). But cf. Whitman, Are Reagan's New Judges Really Closet Moderates?, Wash. Post, Aug. 9, 1987, at C1, col. 4 (drawing on various cases decided by lower court federal judges appointed by Reagan).
Rowland, Carp & Todd, If Presidents Reagan and Carter Were Judges: The Quantity and Quality of Support for Civil Rights on the Federal Trial Courts 25 (rev. ed. Mar. 25, 1986) (unpublished manuscript).
Rowland, Songer & Carp, Presidential Effects on Criminal Justice Policy in the Lower Federal Courts: The Reagan Judges, 22 LAW & SOCY. REV. 191, 196 (1988).
Of course, not all factions within the conservative camp will necessarily seek to marginalize the same core rights-affirming precedents.
For an insightful call to liberal law practitioners to set an agenda in a new Republican or Democratic administration, see LaMarche, An Agenda for the 1990s, Natl. L.J., June 27, 1988, at 13.
This assertion recognizes that the phrase 'contemporary liberal legal scholarship' may not be tied to the political value structures rooted in classical liberal political philosophy. For accounts of the transformation of the meaning of 'liberal' in American political history from the nineteenth century through the New Deal, see R. McELVAINE, THE END OF THE CONSERVATIVE ERA: LIBERALISM AFTER REAGAN 40-44 (1987) (with the rise of industrialism, liberals 'underwent a 180-degree turn in their methods,' recognizing that great aggregations of capital posed more immediate threats to the common good than did possible abuses of government power); A. SCHLESINGER, THE CYCLES OF AMERICAN HISTORY 232-41 (1986) (liberal case for affirmative government as an instrument of greater democracy).
Consider, for example, that the conservative constitutional law movement includes both 'judicial prudentialists' who promote a limited role for the judiciary in reviewing the constitutionality of the product of the political processes, see, e.g., A. BICKEL, THE LEAST DANGEROUS BRANCH 3-4, 9-13 (1962); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 2-3, 8 (1971), and the recently emerging school of libertarian constitutionalism that promotes judicial activism, or 'intervention,' on behalf of individual economic rights, see, e.g., ECONOMIC LIBERTIES AND THE JUDICIARY (J. Dorn & H. Manne eds. 1987); R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 29-31 (1985); S. MACEDO, THE NEW RIGHT V. THE CONSTITUTION 35-37, 50-54, 60 (1987); B. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980); Kronman, Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980).
But see Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (Douglas, Marshall & Brennan, JJ., dissenting). On the other hand, liberals have been criticized by the political and scholarly Left for undue attachment to the 'public-private' distinction which underlies even this protection of the private realms. See, e.g., Mensch & Freeman, Liberalism's Public/Private Split, TIKKUN MAG., Mar.-Apr. 1988, at 24.
Excellent analyses of the fundamental sociopolitical
beliefs and goals of post-New Deal liberalism, and the contrasting positions of
twentieth-century conservatives, are presented in T. FERGUSON & J. ROGERS, RIGHT TURN:
THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS 9-11 (1986); M. McCANN,
TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM 72- 81 (1986)
('pervasive suspicion of corporate power,' 'commitment to pragmatic, result-oriented
instrumental action,' 'the best antidote to big business is big government,' 'popular
accountability'); R. McELVAINE, supra note 21, at 40-47; A. SCHLESINGER, supra note 21, at
237-40. As Arthur Schlesinger recognizes, the political beliefs of contemporary liberals
are rooted in Franklin Roosevelt's agenda which he called the Economic Bill of Rights:
'The liberal party,' FDR had written, 'is a party which believes that, as new conditions
and problems arise beyond the power of men and women to meet as individuals, it becomes
the duty of the Government itself to find new remedies with which to meet them. The
liberal party insists that the Government has the definite duty to use all its power and
resources to meet new social problems with new social controls--to insure to the average
person the right to his own economic and political life, liberty, and the pursuit of
happiness.'
A. SCHLESINGER, supra note 21, at 240 (quoting 1938 F.D. ROOSEVELT, PUBLIC PAPERS AND
ADDRESSES OF FRANKLIN D. ROOSEVELT xxix-xxx (1941)).
The phrase 'court-positivism' is Professor H.
Jefferson Powell's, who used it to take exception to Professor Laurence Tribe for
'confining his attention to Supreme Court decisions, law review articles, and occasional
actions by the other branches of the federal government' and 'treat[ing] the Court's
decisions as a given, to be explained, manipulated, and systematized, but criticized only
within narrow limits.' Powell, Reaching the Limits of Traditional Constitutional
Scholarship (Book Review), 80 NW. U. L. REV. 1128, 1136 (1986) (reviewing L. TRIBE,
CONSTITUTIONAL CHOICES (1985)).
In his studies of public law scholarship, both constitutional and nonconstitutional, from
the 1930s through the 1980s, Professor Mark Tushnet concludes that most American legal
scholars during this period engaged in relatively traditional doctrinal analysis,
examining judicial decisions and offering public policy solutions; until the recent
emergence of Chicago-style microeconomics and libertarianism among legal scholars, a
predominance of 'the serious intellectuals among American legal scholars' aligned their
policy recommendations with the political program of the Progressive-New Deal tradition.
See Tushnet, Legal Scholarship in the United States: An Overview, 50 MOD. L. REV. 804,
805-09 (1987) [hereinafter Tushnet, Legal Scholarship]; Tushnet, Post-Realist Legal
Scholarship, 15 J. SOCY. PUB. TEACHERS L. 20, 22-23 (1980). Moreover, such scholarship
focused on jurisprudential issues connected to the growth of the American regulatory-
welfare state: '[P]ublic law articles in leading law reviews . . . are the vehicles for
continuing efforts to reconcile the regulatory-welfare state with the rule of law.'
Tushnet, Legal Scholarship, supra, at 809.
Representative of this body of scholarship was the work of Professors William Crosskey, Edwin Corwin, and Herbert Wechsler. See, e.g., W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 17-229 (1953); Corwin, The Schechter Case--Landmark, or What?, 13 N.Y.U. L.Q. REV. 151 (1936); Corwin, The Child Labor Decision, NEW REPUBLIC, July 12, 1922, at 177-79; Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
L. TRIBE, AMERICAN CONSTITUTIONAL LAW 769-80 (2d ed. 1988); L. TRIBE, CONSTITUTIONAL CHOICES 9-28 (1985).
Perry, Substantive Due Process Revisited: Reflections on (and Beyond) Recent Cases, 71 NW. U. L. REV. 417 (1977).
Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV. 366 (1984).
Amsterdam, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960).
Black, The Supreme Court, 1966 Term--Foreword: 'State Action,' Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69 (1967).
E.g., EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1971); Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877 (1963).
Ginsburg, Gender in the Supreme Court: The 1973 and 1974 Terms, 1975 SUP. CT. REV. 1.
Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972).
Y, KAMISAR, POLICE INTERROGATION AND CONFESSIONS 1-76 (1980) (reprinting several essays on the law of confessions published between 1963 and 1966). Of course, Professor Wayne LaFave's early contributions on fourth amendment law should not be overlooked. See, e.g., W. LAFAVE, ARREST: THE DECISION TO TAKE A SUSPECT INTO CUSTODY (1965); LaFave, 'Street Encounters' and the Constitution: Terry, Sibron, Peters, and Beyond, 67 MICH. L. REV. 40 (1968) [hereinafter LaFave, Street Encounters].
Michelman, The Supreme Court, 1968 Term--Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law, 80 HARV. L. REV. 1165 (1967).
Tussman & tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341 (1949).
These pieces figure prominently in the list by rank-order of the most- cited articles published in American law journals from 1947 to 1985. See Shapiro, The Most-Cited Law Review Articles, 73 CALIF. L. REV. 1540 (1985).
This characterization is attributed to Professor Shapiro, who describes the purpose of his catalogue of most-cited law review articles as 'draw[ing] attention to writings that, by virtue of their objectively measured impact, deserve to be called classics of legal scholarship.' Id. at 1540.
Both prototypes can be, and have been, criticized for irrelevance: doctrinalism is often too narrow and contextualized, and meta-theory too universal and abstract, to be meaningful for living study and practice of constitutional law. See Part IV.C infra. The irrelevance of current constitutional law scholarship has occasionally been noticed by liberal scholars themselves. For example, Professor Tribe has asserted that '[m]uch of what constitutional scholars write these days either focuses so closely on constitutional doctrine, or looks to matters so distant from doctrine, as to bear no real resemblance to doing constitutional law.' L. TRIBE, CONSTITUTIONAL CHOICES x (1985) (emphasis in original). A central objective of Tribe's work is to draw attention to the fact that 'constitutional problem solving . . . is in less academic vogue nowadays.' Id.
As we use the phrase, 'reactive scholarship' is not self-reliant. That is, its forms, concepts, and essential vitality derive from the intellectual framework of its opponents. Moreover, it is not potentially constructive in a visionary sense. Typically, it permits politically or institutionally powerful adversaries to establish the parameters of debate and to define relevant issues, and hence merely responds to their arguments within their constructs. In this commentary, reactive scholarship refers ultimately, though by no means exclusively, to such work by liberals who are reacting to conservative decisional law with which they disagree.
Note that many of the Meese speeches referred to in the following footnote were prepared by, or with the substantial assistance of, members of the conservative Center for Judicial Studies, who likewise were active in attempts to rally public opinion behind the former Attorney General's constitutional agenda. See L. CAPLAN, THE TENTH JUSTICE, supra note 12, at 97- 98, 300 n.70. We emphasize this in order to highlight the functional importance of forging bonds between scholars and those in power, a point we develop further in Part IV.A infra.
For a useful and informative account of the Meese constitutional campaign, see id., at 115-34, 302-05. The former Attorney General's attacks included challenges to the doctrine of Cooper v. Aaron, the incorporation doctrine, the Miranda rule, and establishment clause rulings. All of this was capped by Mr. Meese's call for a return to the doctrine of 'original intent.'
At least one notable conservative appreciated the philosophically problematic character of the Meese 'original intent' argument. See Jaffa, What Were the 'Original Intentions' of the Framers of the Constitution of the United States?, 10 U. PUGET SOUND L. REV. 351 (1987); see also Jaffa, Judge Bork's Mistake, NATL. REV., Mar. 4, 1988, at 38.
Late evidence of this stratagem appeared in a
newspaper account of an internal memorandum issued by the Justice Department's Director of
Public Affairs instructing top departmental officials 'to 'polarize the debate' on issues
such as drugs, AIDS and capital punishment.' In one section, the memo described 'the
importance of associating 'the search for truth with protecting public safety,'' and
added:
If you're against exclusionary rule reform, or Miranda reform, you're against truth in the
courtroom and you're against public safety. . . . The issues should be defined in these
broad public terms, leaving the technical debates for brief writers and legislators. The
purpose is to put the other side on the defensive.
Marcus, Justice Dept. Memo: 'Polarize the Debate,' Wash. Post, Feb. 26, 1988, at A4, col.
2 (emphasis added).
Brennan, Addresses--Construing the Constitution, 19 U.C. DAVIS L. REV. 2 (1985); Stevens, Addresses--Construing the Constitution, 19 U.C. DAVIS L. REV. 15 (1985).
On many important fronts, Meese was joined in these efforts by Solicitor General Charles Fried, serving on leave from Harvard Law School. In government briefs presented to the Supreme Court, Mr. Fried echoed ideological themes similar to those advanced by former Attorney General Meese. See L. CAPLAN, supra note 12, at 115-84, 235-54.
See Pear, How Civil Rights Came To Be a 'Special Interest,' N.Y. Times, Jan. 17, 1988, § 4, at 1, col. 3.
See Huntington, The Visions of the Democratic Party, PUB. INTEREST, Spring 1985, at 63, 65-71. This point is discussed further in Part IV.C.2 infra.
T. FERGUSON & J. ROGERS, RIGHT TURN: THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS 8 (1986) (tracing the 'forces of moderation' in the Democratic party galvanized by the spring of 1985, and led by the Democratic Leadership Council to promote more conservative Democratic candidates).
See Dworkin, From Bork to Kennedy, N.Y. REV. BOOKS, Dec. 17, 1987, at 36, 42.
For two differing views on this subject, see Fein, Creating a Better Legal Climate, Wash. Times, July 11, 1988, § 2, at 1, col. 1; O'Brien, With P.R. Fanfare, Meese Orchestrates His Own Exit, L.A. Times, July 10, 1988, § 5, at 3, col. 1.
Gallagher, Here Comes the Judge, NATL. REV., Dec. 18, 1987, at 33, 60.
Ponce, 7 Endorse Kennedy; Opposition Invisible, Wash. Times, Dec. 22, 1987, at A5, col. 1 (quoting, in part, Arizona Senator Dennis DeConcini).
In this regard, consider Professor Leonard Levy's hard-hitting arguments in L. LEVY, AGAINST THE LAW (1974). In the same vein, consider Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 YALE L.J. 1198 (1971); Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293 (1976).
In this regard, consider Belz, The Civil War Amendments to the Constitution: The Relevance of Original Intent, 5 CONST. COMMENTARY 115 (1988) (possibility of co-opting 'original intent' arguments to advance liberal values). Arguably, a useful strategy for reorienting liberal legal scholarship would entail 'poking holes' in the conservative claim to a monopoly on logical consistency and judicial constraint. An excellent example of this approach is found in Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984).
See LaFave, Street Encounters, supra note 36, at 61 (discussing Terry v. Ohio rationale and the exclusionary rule); see also Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247 (1988).
See McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34 (revealing intellectual insecurity of dichotomy between economic and noneconomic rights in 'substantive due process doctrine'); cf. Davis, Law, Science, and History: Reflections upon In the Best Interests of the Child, 86 MICH. L. REV. 1096 (1988).
372 U.S. 353 (1963) (court-appointed counsel on appeal). But see Ross v. Moffitt, 417 U.S. 600 (1974) (undermining Douglas equality principle). For discussions of these cases, see L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1119 (1978); Kamisar, Poverty, Equality, and Criminal Procedure: From Griffin v. Illinois and Douglas v. California to Ross v. Moffitt, in CONSTITUTIONAL LAW DESKBOOK 1 (1977).
What may be needed, then, is not a defense or extension of the Douglas doctrine, but a method to resolve the conundrum of the unequal application of criminal justice. This may have less to do with selecting doctrine than with reforming the overall system of prosecution so that the criminal justice system serves both egalitarian goals and socioeconomic reality.
See generally M. LERNER, AMERICA AS A CIVILIZATION 996-97 (2d ed. 1987) ('The future never returns to the past but incorporates segments of it into its own patterns for its own purposes, whether evolutionary or revolutionary.'); A. SCHLESINGER, THE CYCLES OF AMERICAN HISTORY (1986).
Characteristic of these writings were the works of Francis Lieber, Joseph Story, William Rawle, and James Wilson. See, e.g., F. LIEBER, ON CIVIL LIBERTY AND SELF-GOVERNMENT 166 n.1, 213 (Philadelphia 1853); 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 119 (2d ed. Boston 1851); W. RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 16-17 (Philadelphia 1825); J. WILSON, Commentaries on the Constitution 1787, in SELECTED POLITICAL ESSAYS OF JAMES WILSON 161, 169-70 (R. Adams ed. 1930). In the antebellum period, legal discussions of the constitutional compact aligned themselves with the contemporary sectional political interests. A worthwhile overview of constitutional scholarship in the first half of the nineteenth century is given in Belz, The Constitution in the Gilded Age: The Beginnings of Constitutional Realism in American Scholarship, 13 AM. J. LEGAL HIST. 110, 111-13 (1969).
Representative of the Supreme Court's constrictive commerce clause rulings were United States v. E. C. Knight Co., 156 U.S. 1 (1895), which imposed serious obstacles to federal regulation of industrial and business monopolies operating in interstate commerce, and Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating the federal 'child labor' law), a reactionary blow to national police power objectives through control of interstate commerce.
In one of its most criticized decisions in this period, the Supreme Court nullified a two percent federal tax on incomes over $4,000 in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, modified, 158 U.S. 601 (1895), which was heralded by political and economic conservatives as a blow to Populism. This decision was overridden by the sixteenth amendment.
In United States v. Butler, 297 U.S. 1 (1936), the Supreme Court interpreted the general welfare clause, U.S. CONST., art. I, § 8, cl. 1, to prohibit coercive purchases of compliance with regulations that Congress could not directly command. The decision was effectively overruled by the Court's later cases upholding the Social Security Act. Helvering v. Davis, 301 U.S. 619 (1937); Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).
From the time of Lochner v. New York, 198 U.S. 45 (1905), until West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the Supreme Court invalidated much progressive state and federal legislation which it considered intrusive to private economic transactions. Drawing upon notions of natural law and implied common law limitations on governmental police power, the Court frustrated legislative attempts to redistribute economic power and entitlements among private marketplace actors. See COOLEY, CONSTITUTIONAL LIMITATIONS 1227- 28 (1927); Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 877 (1987).
Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851), informed Dormant Commerce Clause doctrine during the following eighty years. The Cooley Court upheld the Board's power to require ships entering its ports to employ local pilots because the regulation dealt with local, rather than national, subject matter. 53 U.S. (12 How.) at 319. Subsequent Supreme Court decisions expanded upon the Cooley doctrine of justify further state commerce regulation in the 'silence' of Congress. See, e.g., Bowman v. Chicago & N.W. Ry., 125 U.S. 465, 482 (1888).
In Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), which invalidated two provisions of the National Industrial Recovery Act of 1933, the Supreme Court tightened its application of the traditional 'adequate legislative standards' rule for the doctrine of delegation of congressional powers. The Court's curtailment of Congress' authority to delegate its expanding economic regulatory powers was short-lived. Panama Refining and Schechter Poultry remain the only two cases in the nation's history that have invalidated federal statutes on nondelegation grounds.
At the turn of the twentieth century, professors became an independent force within the legal profession. As Professor Richard Hofstadter describes, '[i]n the movement for broader conceptions of professional service, for new legal concepts and procedural reforms, for deeper professional responsibility, for criticism of the courts, the teaching side of the profession now became important. The teachers became the keepers of the professional conscience and helped implant a social view of their functions in the young men who graduated from good law schools.' R. HOFSTADTER, THE AGE OF REFORM 158 (1955).
Prominent among the conservative scholars of this era were Thomas M. Cooley and Christopher Tiedeman, whose work celebrated the stabilizing forces of the American Constitution and its protection of individual common law liberties. See generally T. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA (3d ed. 1898); T. COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS (6th ed. 1890); C. TIEDEMAN, THE UNWRITTEN CONSTITUTION OF THE UNITED STATES (1890).
For a general account of the gradual alienation of the intellectual and legal professional classes from the conservative politics of the 1870s and 1880s, see R. HOFSTADTER, supra note 72, at 148-64 (1955).
A list of the most prominent 'anti-formalist' legal
critics, who rejected the concept of law as the rule of fixed doctrinal principles, would
include Oliver Wendell Holmes and Roscoe Pound among the progressive writers of the late
nineteenth and early twentieth centuries; and Thurman Arnold, Felix Cohen, Walter Wheeler
Cook, William O. Douglas, Jerome Frank, Felix Frankfurter, James Landis, Max Lerner, Karl
Llewellyn, Underhill Moore, Edmund Morgan, Herman Oliphant, Thomas R. Powell, and Hessel
Yntema among the early realist scholars of the 1920s to 1940s. See R. HOFSTADTER, supra
note 72, at 154; L. KALMAN, LEGAL REALISM AT YALE 1927-1960, at 4-66 (1986).
During the same period, the attack on formalism as a system of thought was carried on
outside of the legal academy by political and social scientists who advocated
'functionalism,' the understanding of objects and ideas in terms of their factual contexts
and socioeconomic consequences. Notable figures include John R. Commons, Richard T. Ely,
Walter Hamilton, E.R.A. Seligman, and Thorstein Veblen in economics; Charles A. Beard,
Arthur F. Bentley, Frank Goodnow, Charles Merriam, and J. Allen Smith in history and
political science; C. H. Cooley, E. A. Ross, Albion Small, and Lester Ward in sociology;
and James R. Angell and John Dewey in philosophy and psychology. R. HOFSTADTER, supra note
72, at 154; L. KALMAN, supra, at 14-17.
See, e.g., 1 H. VON HOLST, THE CONSTITUTIONAL AND POLITICAL HISTORY OF THE UNITED STATES (1892); H. FORD, THE RISE AND GROWTH OF AMERICAN POLITICS: A SKETCH OF CONSTITUTIONAL DEVELOPMENT (1898), discussed in Belz, Beginnings, supra note 65, at 117-19.
The writings of the reformer Simon Sterne and legal historians J. Franklin Jameson and Henry J. Ford were seminal in infusing constitutional study with an understanding of the conditions and workings of American political institutions. See ESSAYS IN THE CONSTITUTIONAL HISTORY OF THE UNITED STATES (J. Jameson ed. 1889); H. FORD, THE RISE AND GROWTH OF AMERICAN POLITICS: A SKETCH OF CONSTITUTIONAL DEVELOPMENT (1898), discussed in Belz, Beginnings, supra note 65, at 120-23; S. STERNE, CONSTITUTIONAL HISTORY AND POLITICAL DEVELOPMENT OF THE UNITED STATES (1882).
W. WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS 30 (1956).
See generally F. STRONG, SUBSTANTIVE DUE PROCESS OF LAW: A DICHOTOMY OF SENSE AND NONSENSE 95-102 (1986); B. TWISS, LAWYERS AND THE CONSTITUTION 130- 38 (1942).
Important early realist critiques of the politically
conservative character of the federal judiciary include C. BEARD, AN ECONOMIC
INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (2d ed. 1935); J. SMITH, THE
GROWTH AND DECADENCE OF CONSTITUTIONAL GOVERNMENT (1930); J. SMITH, THE SPIRIT OF THE
AMERICAN GOVERNMENT (1907). In Professor J. Alan Smith's view, the fiction of the 'reign
of law' served 'as a mask' for irresponsible conservative politics wielded by the federal
judiciary, which could only be controlled by critical political action. J. SMITH, THE
GROWTH AND DECADENCE OF CONSTITUTIONAL GOVERNMENT 149. Alluding to the work of these
constitutional scholars, V.L. Parrington commented that the chief contribution of the
progressive and early realist movement to American political thought was 'its discovery of
the essentially undemocratic nature of the federal constitution.' R. HOFSTADTER, supra
note 72, at 200-01. Professor Morton Horwitz describes the program of the progressive and
early realist scholars as an effort to 'delegitimate the anti- redistributionist picture
of the neutral state' by exposing the substantive premises underlying the existing
constitutional law doctrine: freedom of contract sanctioned vastly unequal market power
among bargaining parties; the distinction between public and private realms of action
protected growing cartelization in the private economic realm; and, such disparities in
wealth and power undermined any real opportunity for a vital, effective democracy. See
Horwitz, History and Theory, 96 YALE L.J. 1825, 1828-29 (1987) [hereinafter Horwitz,
History and Theory]; Horwitz, Republicanism and Liberalism in American Constitutional
Thought, 29 WM. & MARY L. REV. 57, 61 (1987) [hereinafter Horwitz, Republicanism and
Liberalism].
The two most prominent works of constitutional history that consolidated the achievements
of thirty years of progressive and early realist legal scholarship were L. BOUDIN,
GOVERNMENT BY JUDICIARY (1932), and C. HAINES, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY
(2d ed. 1932) (attacking the 'despotism' of an incremental assertion of federal judicial
power that defended a conservative socioeconomic order at the expense of the legitimate
authority of the popularly elected legislative and executive branches).
Belz, The Realist Critique of Constitutionalism in the Era of Reform, 15 AM. J. LEGAL HIST. 288, 293, 295 (1971).
The school of legal realism generally understood the common law as a system of governmental intervention to regulate social interests. See, e.g., Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927). This recognition was particularly powerful in the era of economic substantive due process, in which constitutional restraints on governmental power were shaped by common law rights. See Sunstein, supra note 69; L. TRIBE, AMERICAN CONSTITUTIONAL LAW 562-67 (2d ed. 1988).
See Cohen, supra note 82; Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470, 478-81, 493 (1923).
For an analysis of the stages in the evolution of federal doctrine that permitted the post-1937 expansion of Congress' socioeconomic regulatory powers, see Skover, 'Phoenix Rising' and Federalism Analysis, 13 HASTINGS CONST. L.Q. 271, 281-84 (1986).
Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 437-38 (1987) (the realist attack on the inadequacies of the common law system of economic rights vindicated in the collapse of the common law market system during the Great Depression).
See, e.g., Bikle, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6, 7-8 (1924); Denman, Comment on Trials of Fact in Constitutional Cases, 21 A.B.A. J. 805 (1935).
See, e.g., F. GOODNOW, POLITICS AND ADMINISTRATION 17-18 (1900) (social reform requires governmental agencies and courts to understand that application of the Constitution must take into account changing social conditions); Bigelow, The Extension of Legal Education, in CENTRALIZATION AND THE LAW 3 (1906) (legal rules and standards are the result of conflicting social forces), discussed in Belz, supra note 81, at 294.
Representing the State of Oregon, Louis Brandeis defended the constitutionality of a law imposing a ceiling on daily work hours for women in Muller v. Oregon, 208 U.S. 412 (1908), in which he submitted an unconventional brief that presented empirical and authoritative evidence from numerous sources to demonstrate the detriment of long working hours on the health and safety of women. The term, 'Brandeis brief,' refers to a legal argument that is grounded, not in traditional doctrinal analysis, but in empirical evidence. On the 'Brandeis brief,' see P. FREUND, ON UNDERSTANDING THE SUPREME COURT 86-92 (1949); Collins & Friesen, Looking Back on Muller v. Oregon (pts. 1 & 2), 69 A.B.A. J. 294, 472 (1983); Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75.
Among the most influential of traditional
constitutionalists in this era were Edwin S. Corwin and Andrew C. McLaughlin, whose
writings were quite evidently influenced by the legal realists of the 1920s and 1930s. See
2 E. CORWIN, ON THE CONSTITUTION: THE JUDICIARY (R. Loss ed. 1981); A. McLAUGHLIN, THE
FOUNDATIONS OF AMERICAN CONSTITUTIONALISM (1932).
Several of Corwin's essays are instructive in their reflection of the teachings of the
legal progressives and realists. In Constitution v. Constitutional Theory: The Question of
the States v. the Nation, Corwin recognizes that '[a] full explanation of the growth of
American constitutional law must recognize that the relatively compact universe of
constitutional theory is bathed in a vastly wider atmosphere of social and economic
activity, athwart which are constantly blowing the winds of change, set loose no man knows
how.' E. CORWIN, Constitution v. Constitutional Theory: The Question of the States v. the
Nation, in 2 ON THE CONSTITUTION: THE JUDICIARY, supra, at 190. Consider also Corwin's
statement of the function of constitutional review:
[I]n the constitutional field the Court is a legislature; and to the extent that the
doctrine of the finality of its interpretations of the Constitution actually prevails, it
is a super-legislature.
. . . [I]f the Court is to retain its power of judicial review, it must adjust that power
to the underlying popular character of our political institutions, and hence must adopt a
sympathetic attitude toward clearly established contemporary needs and opinion.
E. CORWIN, Standpoint in Constitutional Law, in 2 ON THE CONSTITUTION: THE JUDICIARY,
supra, at 294-95.
Professor Belz understands the objective of the
constitutional realists, like J. Allen Smith, Boudin, and Haines, as intrinsically
political: they aimed to 'energiz[e] the government to make it responsive to social needs
and accountable to the popular will.'
Constitutional realists thus hoped to infuse American constitutionalism with a new content
of positive, responsible government. By the start of the 1930s their critique of
traditional constitutionalism helped provide the intellectual framework for the
constitution of powers that the New Deal created.
Belz, supra note 81, at 306.
Professor Morton Horwitz incisively observes that, for the past fifty years, constitutional historians have characterized the jurisprudential debate between the camp of Progressives and New Dealers and the early twentieth- century opponents to redistributionist policies as a dispute over 'disembodied institutional ideas of legislative power and judicial restraint, not over law as the embodiment of substantive visions of the good society.' Horwitz suggests that this misimpression accounts in part for the fact that today's prominent conservative legal thinkers 'have returned virtually unchallenged to Lochner Court assumptions': 'We have gradually lost touch with the reasons why the idea of a neutral state was incoherent and depended on unsupportable background assumptions about the relationships between state and society, public and private law, freedom and coercion, rights and duties.' Horwitz, History and Theory, supra note 80, at 1830.
A similar call has been made to conservative scholars. See, e.g., Mansfield, Pride versus Interest in American Conservatism Today, 22 GOVT. OPPOSITION 194 (1987).
When this commentary was nearly completed, a notable symposium on constitutional scholarship was published. Some ideas advanced in that symposium's 'short responses' bear on our discussion. See Constitutional Scholarship: What Next?, 5 CONST. COMMENTARY (1988) 17, 28-32 (Tushnet), 38- 42 (Hall), 48-50 (Brubaker), 57-61 (O'Brien), 67-68 (Frickey), 73-76 (Bryden).
In another work, we offer a 'constitutional profile' of a leading national lawmaker. See Collins & Skover, The Senator and the Constitution: An Interview with Orrin G. Hatch (forthcoming).
See generally Braucher, Federal Enactment of the Uniform Commercial Code, 16 LAW & CONTEMP. PROBS. 100 (1951); Corbin, The Uniform Commercial Code--Sales: Should It Be Enacted?, 59 YALE L.J. 821 (1950); Llewellyn, Why We Need the Uniform Commercial Code, 10 U. FLA. L. REV. 367 (1957); Mentschikoff, The Uniform Commercial Code: An Experiment in Democracy in Drafting, 36 A.B.A. J. 419 (1950).
See, e.g., J. HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS 23-81, 237-46 (1950). For a notable, albeit modern, analysis of this general subject, see Eskridge & Frickey, Legislation Scholarship & Pedagogy in the Post-Legal Process Era, 48 U. PITT. L. REV. 691, 693, 709-10, 716-19, 724-25 (1987); see also Ross, Legislative Enforcement of Equal Protection, 72 MINN. L. REV. 311, 335-45 (1987).
See Hey, Liberalism on Social Issues Again in Vogue
on Capitol Hill, Christian Sci. Monitor, June 10, 1988, at 7, col. 1.
For example, over the veto of President Reagan, the Congress recently expanded the reach
of federal civil rights laws to reverse the effects of the Supreme Court's restrictive
ruling in Grove City College v. Bell, 465 U.S. 555 (1984). By a vote of 73 to 24 in the
Senate and 292 to 133 in the House, the Congress passed the Civil Rights Restoration Act,
which applies federal antidiscrimination statutes to a private institution in its entirety
if any department of the institution accepts federal aid. Molotsky, House and Senate Vote
to Override Reagan on Rights, N.Y. Times, Mar. 23, 1988, at 1, col. 6.
By way of another example, Congress has sharply restricted pre-hiring polygraph screening
and random testing by private employers. Karr, Law Limiting Use of Lie Detectors Is Seen
Having Widespread Effect, Wall St. J., July 1, 1988, at 19, col. 4; Ban on Most Uses of
Polygraph Tests Clears Congress, Wall St. J., June 10, 1988, at 31, col. 3.
Finally, should the U.S. Supreme Court overrule or retreat from its prior ruling in Runyon
v. McCrary, 427 U.S. 160 (1976), civil rights lobbies certainly would resort to Congress
for an amendment to the post-Civil War civil rights acts that would overturn any such
decision. See Kamen, Liberals Uneasy Over High Court Review of Discrimination Laws, Wash.
Post, May 1, 1988, at A4, col.1; see also La Marche, supra note 20, at 14
(rights-affirming bills under consideration in Congress).
Kinsley, A Democrats' Guide to Robert Bork, Wall St. J., July 9, 1987, at 29, col. 3. On a related point, Stuart Taylor Jr. has pointed to the 'poignant spectacle of 'elected senators . . . feeling . . . pressure to reject a nominee whose philosophy rests on the premise that legislators should make the laws.'' Id. (omissions in original); see also Lerner, Wrong Champion, Wrong Enemy, Wrong War, Wash. Times, July 10, 1987, at D5, col. 6 ('the defense of liberal judicial activism is the wrong banner of judicial semantics for Democrats to follow, whether in 1988 or in any future year').
See, e.g., Greenhouse, What's a Lawmaker To Do About
the Constitution?, N.Y. Times, June 3, 1988, at B6, col. 3. In commenting on the Congress'
consideration of constitutional questions relating to the Ethics in Government Act of
1978, former Representative Abner Mikva related that, far from having formed a judgment
about the constitutionality of the bill when he voted for it, he had paid almost no
attention to the issue: 'That's not the way it ought to be, but that's the way it almost
always is.' Id.
Legislative abdication of constitutional responsibility is particularly evident in the
area of criminal justice. State legislature have virtually abandoned efforts to regulate
police conduct, deferring rather to the Supreme Court to develop the law in this area on
an ad hoc basis.
Reich, Constitutional Transformation: New Wrongs, New Rights, U.S.F. L. REV. (forthcoming) (1988). We do not necessarily take issue with Professor Reich's suggestion that, given contemporary problems associated with industrialization and modernization, the spectrum of constitutional rights may (and perhaps should) expand in the future. To some extent, particularly in the area of vital health care, new applications of constitutional protection may be warranted (e.g., the fifth and fourteenth amendments' protection of 'life'). Nevertheless, we do maintain that, for a variety of reasons, liberal legal scholars should not focus all or even most of their attention on judicial constitutional intervention to the exclusion of reform legislation scholarship.
For example, individual rights discourse should be prefaced with an inquiry into the legislative authorization for executive or administrative action. Unless such authorization is present, the state may be held to have exceeded its law enforcement powers. By demanding a correspondence between legislative authorization and government action, liberal legal scholars can better ally their interests in protection of rights with the popular will as defined by the legislature. See infra note 187.
R. REEVES, THE REAGAN DETOUR 42 (1985) (omission in original).
Id. Despite such references to the Democratic Party, the the arguments advanced here and throughout the commentary may apply to all 'liberals,' as we understand the term, regardless of party affiliation. See note 24 supra.
F. REEVES, supra note 103, at 32 (quoting New York Senator Daniel Patrick Moynihan).
'Brookings was part of the intellectual base of the
'Great Society." R. REEVES, supra note 103, at 28.
There need to be new liberal counterparts to conservative 'think tanks' such as the
Heritage and Free Congress foundations, the Hoover, American Enterprise, and Cato
institutes, and the Center for Judicial Studies. For a discussion of the role played by
these organizations, see T. FERGUSON & J. ROGERS, supra note 24, at 86-88, 104-05,
133, 133, 144, 198 (noting, among other things, funding sources); R. REEVES, supra note
103, at 23-32.
Cf. R. REEVES, supra note 103, at 26-27 (describing classifications of political and governmental 'ideas' suggested by Professors James Q. Wilson and Robert Reich).
See Abramson, Right Place at the Right Time, AM. LAW., June 1986, at 99; see also A Night with Young Conservatives, N.Y. Times, Aug. 11, 1987, at 16, col. 4 (noting formation of new young conservative group called the 'Third Generation').
See R. PELLS, THE LIBERAL MIND IN A CONSERVATIVE AGE 380-92 (1985); see generally D. SEIDEMAN, THE NEW REPUBLIC: A VOICE OF MODERN LIBERALISM (1986). Already, some such liberal periodicals are emerging. For examples of these, see New Perspectives Quarterly (discussed in Hendrix, A Place for Ideas That Won't Fit on Bumper Stickers, L.A. Times, Dec. 30, 1987, § 5, at 1, col. 5), Tikkun Magazine, and Constitutional Commentary.
See, e.g., Welsh, Whose Federalism?--The Burger Court's Treatment of State Civil Liberties Judgments, 10 HASTINGS CONST. L.Q. 819 (1983).
Trends and figures in the text are based on an update of the data in Collins & Galie, State Constitutional Law, Natl. L.J., Sept. 29, 1986, at S- 9.
In 1987 alone, more than twenty different state high courts invoked their own law to go beyond federal decisional law minimums (study on file with the authors).
Brennan, Symposium on the Revolution in State Constitutional Law-- Foreword, 13 VT. L. REV. 11 (1988).
The arguments that we advance in Part IV.C are applicable to the state constitutional law enterprise. Unless state law development is mindful of the inherent intellectual and practical problems associated with individual rights consciousness, it will fall victim to the same critiques.
Ultimately, the state law movement fortifies
federalism on both sides of the divide: it aims for strong protection of liberal normative
values on the national, as well as the state, levels. Obviously, state law can never be a
substitute for its federal counterpart. This is because the state law enterprise is
vulnerable on at least two fronts. First, it is more susceptible to political pressures,
i.e., judicial elections and the state constitutional amending process. Second, there may
be pragmatic constraints on the independent development of state law becasue of the
socio-economic impacts that maverick reforms will engender. See generally Rose-Ackerman,
Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. LEGAL STUD. 593
(1980); Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 366- 70 (J.
Wilson ed. 1980).
These arguments notwithstanding, state law is law, and the state law movement is
happening. Liberal scholars cannot afford to remain ostrich-like in the face of a movement
that offers the most hospitable judicial forum in a conservative era for checking
governmental abuse.
For an informative introduction to recent state constitutional law developments in Oregon, see Buttler, Oregon's Constitutional Renaissance: Federalism Revisited, 13 VT. L. REV. 107 (1988); Schuman, The Right to 'Equal Privileges and Immunities:' A State's Version of 'Equal Protection,' 13 VT. L. REV. 221 (1988). See also note 187 infra.
See Collins, Galie & Kincaid, State High Courts, State Constitutions and Individual Rights Litigation Since 1980: A Judicial Survey, 13 HASTINGS CONST. L.Q. 599, 616-19 (1986). Much the same holds true for the 'pedagogy of legisprudence.' See Eskridge & Frickey, supra note 96, at 726-27.
Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.) (L. Hand, J.), revd., 246 F. 24 (2d Cir. 1917).
Consistent with the preceding section, liberal legal scholars need to construct conceptual platforms for viable state constitutional amendments and statutory reforms. See, e.g., Collins, Reliance on State Law: Protecting the Rights of People with Mental Disabilities, 13 VT. L. REV. 305 (1988). It is too easily forgotten that the Brandeis progressive tradition was built on such positive law innovations, which subsequently had to be defended in conservative courts. See generally M. UROFSKY, LOUIS D. BRANDEIS AND THE PROGRESSIVE TRADITION (1981).
See generally R. DWORKING, TAKING RIGHTS SERIOUSLY
(1977); J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); D. RICHARDS,
THE MORAL CRITICISM OF LAW (1977); L. TRIBE, CONSTITUTIONAL CHOICES 165-266 (1985); Karst,
The Supreme Court, 1976 Term--Foreword: Equal Citizenship Under the Fourteenth Amendment,
91 HARV. L. REV. 1 (1977); Perry, Substantive Due Process Revisited: Reflections on (and
Beyond) Recent Cases, 71 NW. U. L. REV. 417 (1977); Wellington, Common Law Rules and
Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221 (1973).
It is interesting to note that 21 of the 25 most-cited constitutional law articles in
American law journals published from 1947 to 1985 are dedicated to individual rights
issues. See Shapiro, supra note 40, at 1549-51.
In this regard, a comparison of the percentage of the text devoted to individual rights issues in the first and latest editions of a classic law school casebook in federal constitutional studies is illuminating. The first edition of N. DOWLING, CASES ON AMERICAN CONSTITUTIONAL LAW (1937) dedicated 384 pages of 1153 total pages, or 33% of the text, to individual rights doctrine, including state action, equal protection, economic substantive due process, procedural due process (excluding regulatory due process), privileges and immunities, first amendment, taking and criminal procedural topics. G. GUNTHER, CONSTITUTIONAL LAW 11th ed. 1985) dedicated 1126 pages of 1633 total pages, or 69% of the text (excluding materials in the current Supplement), to the same subjects, with the notable exclusion of criminal procedure.
Overly broad and unsubtle as the characterization may be, it appears that a primary objective for the adherents of Critical Legal Studies is the exposure of the 'recurring, deep, and intractable contradictions' of liberal normative theory in constitutional scholarship, in order to 'delegitimate' its intellectual force as a legal ideology. See Freeman, Truth and Mystification in Legal Scholarship, 90 YALE L.J. 1229, 1229-30 (1981). For classic examples of 'debunking' of the liberal normative scholarship, see, for example, M. KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 62-79, 275-76, 289-90 (1987); Gabel, Reification in Legal Reasoning, 3 RESEARCH IN LAW AND SOCIOLOGY 25 (S. Spitzer ed. 1980); Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. REV. 205 (1979); Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Tushnet, An Essay on Rights, 62 TEXAS L. REV. 1363 (1984).
For an account of the 'growing influence' of a 'philosophic conservatism of a special kind' in our public life, as applied to constitutional law, see Bluhm, Liberalism as the Aggregation of Individual Preferences: Problems of Coherence and Rationality in Social Choice, in THE CRISIS OF LIBERAL DEMOCRACY 269 (K. Deutsch & W. Soffer eds. 1987); Wood, The Fundamentalists & the Constitution, 35 N.Y. REV. BOOKS, Feb. 18, 1988, at 33 (describing and critiquing the constitutional contributions of 'Straussians'); see also THE JUDGES' WAR (P. McGuigan & J. O'Connell eds. 1987); G. McDOWELL, CURBING THE COURTS (1988); PORNOGRAPHY: SOLUTIONS THROUGH LAW (C. Clancy ed. 1985); STILL THE LAW OF THE LAND? (J. McNamara & L. Roche eds. 1987); The Crisis in Legal Theory and the Revival of Classical Jurisprudence, 73 CORNELL L. REV. 281 (1988) (articles based upon the proceedings of the Sixth Annual Symposium of the Federalist Society for Law and Public Policy Studies).
Dean Paul Brest's article, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981), may be the closest example to the contrary: an arguably liberal- leaning constitutionalist admitting doubt about the defensibility of fundamental rights jurisprudence. Although the piece may be criticized for its inconclusive posture, as a depicted act of liberal ideological self-analysis it is noteworthy and refreshing.
See, e.g., T. HOBBES, LEVIATHAN (A. Waller ed. 1904) (the natural state of man is independent and self-interested, and government is the creation of individuals to further their personal security and self-interests); D. HUME, A TREATISE OF HUMAN NATURE (L. Selby-Bigge ed. 1888) (the authority of principles of justice and of government rests on their utility for collaboration among individuals); I. KANT, THE PHILOSOPHY OF LAW (W. Hostie, ed. 1974) (political obligation is a subspecies of moral obligation, the source of moral authority deriving from principled reasoning by autonomous individuals); J. LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT (J. W. Gough, ed. 1947) (Man is free, equal and independent, and divests himself of natural liberty to secure enjoyment of his interests.).
The term 'social atomism' is used by Professor Elizabeth H. Wolgast to refer to the 'fundamental picture' of liberal legal society 'as a simple collection of independent, self-motivated units.' E. WOLGAST, THE GRAMMAR OF JUSTICE 4-5 (1987). Wolgast's important work examines the relationship of social atomism to the 'invocation of individual rights' in American law, and, in an essay called Wrong Rights, critically analyzes the impact of liberal use of the 'language of rights' on current social and moral conditions. Id. 28- 49. Professor Wolgast introduced the term in her earlier book on gender equality to describe the liberal vision of society as 'a collection of individuals, each with his own basic interests and autonomy, even as he lives in association with others.' E. WOLGAST, EQUALITY AND THE RIGHTS OF WOMEN 138- 42, 148-56 (1980).
2 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 477-78 (J. Mayer & M. Lerner eds. 1966). It would be misleading, however, to suggest that because de Tocqueville criticized the political effects of a philosophy of individualism he did not appreciate the value of a system of enforceable rights against governmental tyranny. 1 A. DE TOCQUEVILLE, supra, at 219. Indeed, de Tocqueville perceived the American system of rights and the freedom it secured to promote active participation in public affairs and private associations, which would mitigate the destructive excesses of individualism. 2 A. DE TOCQUEVILLE, supra, at 497-99, 511-13; see Macedo, Capitalism, Citizenship, and Community (forthcoming in J. SOC. PHIL. & POL. (1989)).
In a perceptive essay, Professor Anastaplo shows how a similar atomistic attitude plagues the 'Moral Majority.' Anastaplo, Church and State: Explorations, 19 LOY. U. CHI. L.J. 61, 168-73 (1987).
Id. at 34-35. For another illustration of the
failure of individual rights theory to order social relations in a coherent and meaningful
manner, see Minow, We, The Family: Constitutional Rights and American Families, in THE
CONSTITUTION AND AMERICAN LIFE 299 (D. Thelan, ed. 1988) [hereinafter Thelan]. Professor
Martha Minow argues persuasively that the language of rights has proven an 'awkward
locution for speaking about families:'
Stemming from a tradition of possessive individualism, rights rhetoric in this country
traditionally has referred to the relationship between an autonomous, self-determining,
competent adult individual and the state. Although the family is neither of those two
players, the deployment of rights rhetoric can push the family into either position.
Id. at 319.
The current state of constitutional and statutory anti-discrimination law focuses 'more on what particular perpetrators have done or are doing to some victims than . . . on the overall life situation of the victim class.' Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052-57 (1978); see also Mensch & Freeman, Liberalism's Public/Private Split, TIKKUN MAG., Mar.-Apr. 1988, at 24. For analysis of the restraints that the doctrine of 'state action' places on a meaningful enforcement of constitutional equal protection and due process requirements, see Chemerinsky, Rethinking State Action, 80 NW. U. L. REV. 503 (1985) (federal constitutional 'state action' doctrine); Skover, The Washington Constitutional 'State Action' Doctrine: A Fundamental Right to State Action, 8 U. PUGET SOUND L. REV. 221, 254-81 (1985) (state constitutional 'state action' doctrine).
See, e.g., Allen v. Wright, 468 U.S. 737 (1984). Justice O'Connor's majority opinion delimited the scope of constitutional harm, first, by confirming that 'stigmatic injury' would be judicially cognizable only to the extent that the claimant was personally subject to discriminatory treatment, 468 U.S. at 757 n.22; second, by explaining that the function of the 'fairly traceable' component of the standing doctrine was to restrain the judiciary from ordering relief, even if effective in correcting the wrongful conditions suffered by the claimants, unless the institutional responsibility of the government could be established, 468 U.S. at 753 n.19.
'Inter-bases conflict' describes the situation in which a legal premise or position may appear valid on one legal basis, but may appear invalid on another legal basis. For further description and illustration of the concept, see P. SCHLAG & D. SKOVER, TACTICS OF LEGAL REASONING 24-26 (1986).
See, e.g., Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 826-27 (1983) (social atomism preempts formation of community values).
Current Equal Protection doctrine validates the law
that treats all individuals identically without regard to substantive differences in
native attributes and traits, or in social conditions. This formal notion of equality
responds to the maxim of liberal egalitarianism: the law judges no person except by his or
her merits. See, e.g., Defunis v. Odegaard, 416 U.S. 312, 320 (1974) (Douglas, J.,
dissenting).
Elizabeth Wolgast appreciates the embarrassment to liberal legal theory in affirmative
action programs, which 'rest on the factors that distinguish people from one another,
while in the [liberal] model any distinctions of treatment are discriminatory and thus
unfair.' E. WOLGAST, THE GRAMMAR OF JUSTICE 39 (1987).
When invalidating restrictions on 'independent expenditures' for federal electoral candidates in Buckley v. Valeo, 424 U.S. 1, 48-49 (1976), the Supreme Court asserted that 'the concept that government may restrict the speech of some . . . in order to enhance the relative voice of others is wholly foreign to the First Amendment.' The Court's invalidation of the governmental purpose to equalize the relative ability of individuals to influence the outcome of elections sparked the criticism of many a liberal legal scholar and jurist. See, e.g., Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory, and the First Amendment, 29 UCLA L. REV. 505-78 (1982) (the power of some groups to raise enormous sums of money, without regard to any breadth or depth of popular feeling, seriously interferes with the ability of other groups to use the institutions of direct democracy for their intended purpose); Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609 (1982); Wright, Politics and the Constitution: Is Money Speech?, 85 YALE LJ. 1001, 1015-19 (1976).
Miller v. California, 413 U.S. 15 (1973), and its progeny, e.g., Ward v. Illinois, 431 U.S. 767 (1977); Jenkins v. Georgia, 418 U.S. 153 (1974), have set parameters for distinguishing pornography protected under the first amendment from obscenity that government may regulate or prohibit. The liberality of the obscenity doctrines has been challenged by a feminist critique grounded in gender equality. This critique views pornography as a 'political practice' of 'subordination of women to men.' MacKinnon, Not a Moral Issue, 2 YALE L. & POLY. REV. 321, 322-24 (1984); see also A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1981); MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1 (1985); Note, Anti- Pornography Laws and First Amendment Values, 98 HARV. L. REV. 460, 475 (1984).
The proposal for adjudication according to 'neutral principles' is associated with its primary spokesman, Professor Herbert Wechsler. See Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
See J. ELY, supra note 28 (theory of 'process-perfecting' review).
See, e.g., Sandel, Democrats and Community, NEW REPUBLIC, Feb. 22, 1988, at 20, 23 ('A public life empty of moral meanings and shared ideals does not secure freedom but offers an open invitation to intolerance.').
H. CLOR, OBSCENITY AND PUBLIC MORALITY 242 (1969) (discussing obscenity).
The susceptibility of liberal normative theory to an irresponsible and illusory search for freedom from choice has been attacked, of late, by a strange combination of ideological bedfellows. Professor Allan Bloom of the University of Chicago argues, in essence, that the only 'moral postulate' or 'virtue' in American liberal democracy is cultural 'relativism,' the relinquishment of any absolute virtues or values. A. BLOOM, THE CLOSING OF THE AMERICAN MIND 25-26 (1987). To the same effect, Professor Laurence Tribe mercilessly attacks the recent spate of constitutional discourse among scholars and judges, particularly methods of constitutional interpretation such as intentionalism, representation-reinforcement, and process-oriented review, for the ultimately incoherent escape from choice. Tribe writes, 'The pretense that such choices may be avoided by some interpretative or analytic magic . . . is pervasive. To abandon that pretense is a beginning of wisdom, if only a small one.' L. TRIBE, CONSTITUTIONAL CHOICES 267 (1985); see also Hayden, Our Finest Moment, 4 NEW PERSPECTIVES Q. 20 ('I think Bloom is absolutely right in drawing attention to . . . objectivity [which] masks a moral neutralism.').
Professor Charles Reich Suggests as much, in arguing that 'changes in the relationships of power and powerlessness' which have characterized the evolution of the modern techno-bureaucratic state have not been followed by the judicial recognition of 'new rights' that 'can protect us against the new wrongs and new losses that have come to threaten our society.' Reich, supra note 100.
Komesar, supra note 30, at 438; see also J. ELY, supra note 28, at 59 (systematic bias in judicial choice of fundamental values in favor of interests of upper-middle professional classes); infra notes 182-84.
Professor Mark Tushnet's overview of public law
scholarship over the past sixty years suggests:
Most legal scholarship in the United States has been captivated by the metaphor of
balancing, so much so that balancing is now generally seen as expressing the rule of law.
In particular, the dominant view of the Constitution is that its proper interpretation
produces balancing tests in virtually every area of its application.
Tushnet attributes this phenomenon to the 'triumph of American Legal Realism' in recasting
the rule of law tradition: 'Legal Realism was received into legal scholarship in the
United States as a prescription that sensible legal decisions necessarily rested on a
sensible balance of competing policies.' Tushnet, Legal Scholarship, supra note 25, at
810.
The predominance of balancing is evident in the fourteenth amendment 'state action' doctrine. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (open admission that '[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance'). Although less prevalent, balancing is also present in first amendment doctrine. E.g., New York v. Ferber, 458 U.S. 747 (1982) (state regulation of child pornography); Cantwell v. Connecticut, 310 U.S. 296 (1940) (state control of hostile audience); Schneider v. State, 308 U.S. 147 (1939) (state interest in litter prevention). Balancing is central, as well, to substantive due process doctrine. .e.g., Roe v. Wade, 410 U.S. 113 (1973) (state interests may override woman's privacy rights in second and third trimesters of pregnancy). Balancing is by no means limited to these areas, as is evidenced by its use in the doctrines of Dormant Commerce Clause, intergovernmental immunity, and procedural due process, among others. The scholarly influence of Oliver Wendell Holmes, Roscoe Pound, Benjamin Cardozo, and the legal realist school of jurisprudence on the emergence of balancing as the dominant form of constitutional decisionmaking is well traced in Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 955-58 (1987). Current debate over the methodology of balancing continues in the first amendment area. Id. at 944 n.4 (list of commentators).
The process of balancing accommodates a jurisprudence that is both pragmatic and instrumentalist, reaching a decision with an eye to the consequences of its ruling. See Leff, The Leff Dictionary of Law: A Fragment, 94 YALE L.J. 1855, 2123-24 (1985) ('That some such process [of balancing] must be a part of any practical legal system is undeniable.').
Professor Michelman distinguishes the 'public-interest' model of politics from the pluralist model, which he calls the 'public-choice' model. In his opinion, the 'public-choice' model conforms with the philosophy of legal liberalism, for it reinforces the atomistic premise of self-realization and self-maximization in the political, economic, and social arenas. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 148 (1978).
The weighing of individual interests against societal concerns can be logically flawed when there is a combination of values at different levels of abstration. See P. SCHLAG & D. SKOVER, supra note 138, at 39-43 (1986).
One prominent liberal theorist has noted the dangers of constitutional balancing to the liberal enterprise of 'rights' protection. See R. DWORKIN, LAW'S EMPIRE 373-99 (1986); R. DWORKIN, TAKING RIGHTS SERIOUSLY 193-95 (1977). The likelihood that an individual right will be sacrificed for the collective interest is anathema to Dworkin's notion of rights as 'trumps' over public policy.
Indeed, this point has been made even from a libertarian perspective. Consider S. Macedo, A Liberal Theory of Virtue, Citizenship, and Community (forthcoming); Macedo, Liberal Virtues, Constitutional Community, 50 REV. POL. 215, 223 (1988).
Representative of conventional morality theorists are Professors Michael Perry and Harry Wellington. Despite variations on the common theme, both promote constitutional adjudication that enforces values defined by conventional morality. See note 121 supra.
Among fundamental rights theorists who depend upon moral reasoning to ascertain constitutionally protected values, Professors Laurence Tribe, Kenneth Karst, and David Richards figure prominently. In a most open and candid fashion, Professor Richards grounds his advocacy of individual rights jurisprudence in moral philosophy: he invokes liberal theory from Milton and Locke to Ronald Dworkin and John Rawls in ascertaining moral rights that must be legally enforceable rights. See note 121 supra.
For examples, three of the U.S. Supreme Court's celebrated decisions in the area of constitutional 'privacy' challenge the viability of the primary methods in fundamental rights jurisprudence. It may be difficult to justify Eisenstadt v. Baird, 405 U.S. 438 (1972), or Roe v. Wade, 410 U.S. 113 (1973) under a system of conventional of consensus morality, as Professor Wellington, one of its major proponents makes quite apparent. wellington, supra note 121, at 296-97, 305-07. On the other hand, the moral theorists benerally would find the Court's recent denial of 'privacy' protection to consensual adult homosexual activity in Bowers v. Hardwick, 478 U.S. 186 (1986), a sacrifice of constitutional moral principles. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1421-35 (2d ed. 1988); Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 682 (1980); Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HASTINGS L.J. 957 (1979). The application of the methods of these fundamental rights scholars to the constitutionality of criminal sodomy laws is discussed in Brest, supra note 125, at 1078-80.
In a speech given on November 28, 1984 during a symposium sponsored by the 'Coalition for a Democratic Majority,' the Democratic governor of Virginia, Charles Robb, claimed that '[a]t the national level' the Democratic Party had become 'a party with too many messages. . . . We are the party of the poor. We are the party of the worker, of the small farmer, of the urban dweller, of the renter. The list goes on and on.' Farrell, Democrats Pore Over the Results and Discuss Some New Formulas, N.Y. Times, Nov. 29, 1984, at 15, col. 3.
Professor Samuel Huntington, a past member of the
board of the Coalition for a Democratic Majority, charges the Democratic Party with loss
of majority status in national politics, in part, because 'the control of the Democratic
Party by the New Deal coalition was challenged by the rise of new groups that had become
politically mobilized during the 1960s.' Huntington, supra note 51, at 65. Professor
Huntington claims that, after rising to prominence in the party, these interest groups
imposed 'categorical representation:' 'the proposition that the interests of particular
groups can be properly represented only by individuals who are themselves members of those
groups, blacks by blacks, women by women, union members by union members.' Id. at 67.
This, Huntington explains, prevented the 'spokesmen' from understanding and representing
the interests of other groups and from attempting to reconcile and integrate differing
group interests into a broader perspective. . . . Carried to an extreme, categorical
representation becomes, in a sense, anti-political since it denies the role of the
political leader to extract, refine, and create the res publica that people have in
common.
Id.
See note 51 supra; see also T. FERGUSON & J. ROGERS, supra note 24, at 4-11. The account that Professors Ferguson and Rogers tender of public opinion and of political influence of business elites ultimately rejcts the charge that special interest groups were responsible for 'running the Democratic Party into the ground.' Id. at 12-19, 28-29, 33-36, 194-96. However that may be, the potential for progressive Republicanism is greater to the extent that it does not have to confront these problems. Moreover, the arguments set out in Part IV.C.3 may be adapted to progressive Republicanism.
See, e.g., note 159 supra (differing treatment to issues of privacy in abortion and sexual preferences). Normative rifts among liberal scholars are not reserved to the privacy rights area, as controversies over issues of gender discrimination and affirmative action readily demonstrate. See Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 730-31 (1985) (discrete and insular minorities are not likely to require judicial protection); Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 735-36 (1974) (reasons for heightened scrutinly lacking when political majority burdens itself with affirmative action remedies for political minorities); Karst, Equal Citizenship under the Fourteenth Amendment--Foreword, 91 HARV. L. REV. 1, 23 (1977) (heightened scrutiny for gender classification, since immutable and highly visible trait).
See note 121 supra (schools of common consensus, conventional morality, natural rights, and process-perfecting review). Cf. J. ELY, supra note 28, at 48-55, 63-69 (attacking natural law, neutral principles, common consensus); Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980).
In this regard, consider Freud's classic account of the larger psychological and cultural implications of maximization of the 'id.' S. FREUD, BEYOND THE PLEASURE PRINCIPLE (1920).
Karst, Individuality, Community, and Law, in LAW AND THE AMERICAN FUTURE 68, 70-71 (M. Schwartz ed. 1976).
This obvious point is evidenced by the historic roots of legal liberalism in the political philosophy of John Locke, who emphasized the protection and preservation of individual property as one of the primary justifications for government. J. LOCKE, note 126 supra, at 47.
Professor Stephen Macedo demonstrates the point superbly in his recent attack on 'New Right' conservatives, such as Judge Robert Bork, Professors Raoul Berger and Lino Graglia, and former Attorney General Edwin Meeese and Assistant Attorney General William B. Reynolds. Contrary to the claims of the 'New Right,' Macedo argues that the Constitution does not establish a basically majoritarian democracy of broad powers and few minority rights. Rather, he promotes a liberal, natural rights tradition in constitutional interpretation; the expansive language of the provisions protecting individual liberties in the Bill of Rights supports broad constitutional review powers of the judiciary. The courts must enforce the values of economic freedom, private security, property rights and liberty of contract--as well as noneconomic liberties of procedural and substantive natures--which are well anchored in the constitutional text. In sum, Macedo advocates a judicial program of 'principled activism.' S. MACEDO, note 22 supra, at 3-5, 35-37, 50-54, 60.
See Herzog, As Many as Six Impossible Things Before Breakfast, 75 CALIF. L. REV. 609 (1987) (defending liberalism against criticism of the Critical Legal Studies movement by noting that liberalism has been remarkably adaptive and that CLS, which reads law politically, fails to read liberalism politically).
Y. KAMISAR, note 36 supra, at 25 (footnote omitted) (critiquing due process 'voluntariness' formula).
In this regard, consider Horwitz, Republicanism and
Liberalism, supra note 80, at 74:
All legal systems have a legal architecture that categorizes and classifies legal
phenomena. Every system of legal architecture also incorporates deep into that structure a
set of normative premises concerning the proper way to talk about law.
Essentially, we argue that rights discourse is structured by the conceptual premises which
it inherited from the nineteenth-century tradition of liberal legal theory. The potential
for rights discourse to advance the liberal political program in the future may inevitably
be constrained by these intellectual structures. See, e.g., Hartog, The Constitution of
Aspiration and 'The Rights That Belong to Us All,' in Thelan, note 133 supra, at 362, 367
('To use our individualistic Bill of Rights and fourteenth amendment as sources of
language to constitute, recognize, and legitimate group identities is, at minimum, an odd
way to articulate a collective faith.'); Mensch & Freeman, supra note 23, at 25
('[T]he language of privatism is a double-edged sword. . . . To have 'private' choice is
also to be left alone with it.').
For the opposing view that individual autonomy need not be the precondition for a liberal
system and rhetoric of rights, see, for example, Feinberg, Liberalism, Community, and
Tradition, TIKKUN MAG., May-June 1988, at 40 (liberal ideology need not blind the
individual to the social nature of man); Michelman, Justification (and Justifiability) of
Law in a Contradictory World, 28 NOMOS 71, 92 (1986) (right as claim grounded in human
association); Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860,
1874-75, 1877, 1881, 1884-85 (1987) (rights could be understood to articulate legal
consequences for patterns of human and institutional relations). Cf. Hartog, supra, at 358
n.13 (response to Minow); Lasch, A Response to Joel Feinberg, TIKKUN MAG., Mar.-Apr. 1988,
at 42 (liberalism's commitment to the regulatory welfare state and social equality
conflicts with the liberal philosophy of 'live-and-let-live').
Simmons, Garcia Marquez on Love, Plagues and Politics, N.Y. Times, Feb. 21, 1988, § 7 (Book Review), at 24. In the same vein, we examine, in a work- in-progress, the relationship of communications theory to first amendment jurisprudence to demonstrate that the premises of the latter are difficult to sequare with the realities of the former. See Collins & Skover, The Death of Discourse (forthcoming).
One example of linguistic failure is the legal terminology used to address fourth amendment 'privacy' and fifth amendment 'self-incrimination' issues in the context of governmental and corporate calls for mandatory drug and AIDS testing for employees. How is an 'expectation of privacy,' doctrinally grounded in the sanctity of the home, to be analogized to a corresponding interest in personal waste products? Moreover, how is John Lilburne's testimonial privilege to be extended to the withholding of physical evidence of an excretory function?
See Schlag, Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction, 40 STAN. L. REV. 929, 961 (1988) ('increasingly the objects of work . . . consist of servicing bureaucratically defined objectives, accordingly to bureaucratically sanctioned procedures.').
L. TRIBE, CONSTITUTIONAL CHOICES 6, 7 (1985) (emphasis in original).
See, e.g., M. OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 1-3, 53-65, 125-31 (1971) (relatively small groups with concentrated economic interests are more frequently able to mobilize political power than relatively large, latent groups with dispersed economic interests); Michelman, supra note 153, at 148-50; Wilson, supra note 116, at 366-70.
See, e.g., S. LAZARUS, THE GENTEEL POPULISTS 223 (1974) ('[R]egulation of industry would have to be regarded as oneof the least successful enterprises over undertaken by American democracy.'); M. McCANN, TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM 39-44, 104-05 (1986); Fellmeth, The Regulatory-Industrial Complex, in WITH JUSTICE FOR SOME: AN INDICTMENT OF THE LAW BY YOUNG ADVOCATES 244 (B. Wasserstein & M. Green eds. 1971); Komesar, supra note 30, at 415-20.
See, e.g., Michelman, Politics and Values or What's
Really Wrong with Rationality Review?, 13 CREIGHTON L. REV. 487, 509-10 (1979); Parker,
The Past of Constitutional Theory--And Its Future, 42 OHIO ST. L.J. 223, 240-43 (1981).
Over-representation of a minority in the political process is likely to occur either
because social factors--education, wealth, status--block the access of other
constituencies to the political process, or because the 'transaction costs' of
mobilization of any discrete issue may be too high fot the majority. An excellent example
of minority over-representation due to both failures is provided in Congress' enactment of
The Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat.
2374 ncodified as amended at 16 U.S.C. §§ 3101-3233 (1982)). Despite the purpose of the
Act to preserve nationally significant lands and waters in their wilderness state, ANILCA
permitted quartz mining in an area identified for preservation by a major corporate
concern. T a distance of over 4,000 miles, the costs of lobbying Congress directly would
have been substantial for recreational and subsistence users in the affected area. Even
more important, because the economic benefits of the exemption were costs of lobbying
Congress single corporate concern, it had a tremendously high stake in promoting its
interest, vis-a-vis the environmental benefits that would have been shared generally by
the local citizens opposed to the mining.
This recharacterization must, however, be mindful of the 'Jonestown' phenomenon. See Stone, A Response to Mensch & Freeman, TIKKUN MAG., Mar.-Apr. 1988, at 31; see also Macedo, Liberal Virtues, Constitutional Community, note 156 supra, at 222 (without public moral standpoint, no internal resistance to communities founded on bigotry and prejudice).
By way of a general example, consider Professor Gregory Gelfand's thoughtful article, Gelfand, Living Will Statutes: The First Decade, 1987 WIS. L. REV. 737.
Fein, Toward Adequate Health Care, DISSENT, Winter 1988, at 98. For an excellent collection of essays on this subject, see HEALTH CARE AND ITS COSTS (C. Schramm ed. 1987). See also Freudenheim, The Elderly and the Politics of Health Care, N.Y. Times, May 22, 1988, § 5, at 5, col. 1.
Congressman Edward Roybal, chairman of the House Select Committee on Aging, has reported that '[a] year in a nursing home wipes out the income of over 90 percent of the elderly living alone.' Study Says Nursing Home Costs Impoverish Many, N.Y. Times, Nov. 9, 1987, at 20, col. 2; see also Cody, Lessons from Abroad: Is the U.S. Ready for National Health Insurance?, Wash. Post, July 7, 1987, (Health Mag.), at 10.
In principle, this is akin to the efforts of Louis Brandeis, Felix Frankfurter, Florence Kelley, and Josephine Goldmark to spawn labor and work safety reforms. See Collins & Friesen, supra note 88.
Although we do not necessarily endorse the analysis and proposals in Professor Cass Sunstein's recent study of the failures of the national regulatory system established during the New Deal, we recognize that his discussion of the possibilities for constitutional reformation of administrative agencies is in the vein of such 'power-based' scholarship. See Sunstein, supra note 85. Professor Sunstein argues that protection of the liberal socioeconomic entitlements recoganized in the New Deal should be maintained in modern public law, but that the problems of agency and factionalism may be checked through a system of coordinated review of an administrative agency the includes a strong supervisory role for all of the branches of the federal government. Id. at 452-91. For other such examples, consider the proposals for adaptation of the traditional constitutional concept of 'state action' for the functions that may be served by 'power-based' norms in Chemerinsky, supra note 134 (federal constitutional 'state action' doctrine) and Skover, supra note 134, at 254-81 (state constitutional 'state action' doctrine).
For a discussion of the constitutional constructs and the categorical approach that dominated nineteenth-century judicial interpretation of federal and state economic regulatory and police powers, see Skover, supra note 84. For useful historical introductions to the alterations in concepts of the relative roles of federal and state governments, see A. SCHLESINGER, supra note 21, at 219-55; Harrison, The 'Weakened Spring of Government' Revisited: The Growth of Federal Power in the Late Nineteenth Century, in THE GROWTH OF FEDERAL POWER IN AMERICAN HISTORY (1983).
See, e.g., Planned Parenthood Assn v. Department of Human Resources, 297 Or. 562, 687 P.2d 785 (1984) (agency erred in following directions from Emergency Board rather than its statutory mandate); LINDE, BUNN, PAFF & CHURCH, LEGISLATIVE AND ADMINISTRATIVE PROCESSES 489-98 (2d ed. 1981); Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197, 238-44 (1976).
As the historian Arthur M. Schlesinger suggests, if liberal scholars 'doubt that such problems as the decay of infrastructure, the decline of heavy industry, the crisis of the cities, the growth of the underclass, a generation of young people reared in poverty, unprecedented trade deficits, the flight of jobs to the Third World, can be safely confided to a deregulated marketplace dominated by great corporations,' they must face the 'political demoralization and intellectual bankruptcy' of traditional individual rights theory and contemporary 'interest-group liberalism.' A. SCHLESINGER, supra note 21, at 249.
See The Constitution as an Economic Document, 56 GEO. WASH. L. REV. 1 (1987); Katzmann, The Attenuation of Antitrust, BROOKINGS REV., Summer 1984, at 23, 25 (the 'sharp challenge, mounted by economists and law professors at the University of Chicago and elsewhere, to the conventional assumptions of antitrust analysis' is the 'most important element' in a 'breakdown of consensus' as to 'the deleterious effects of economic concentration and the appropriateness of structural remedies'); note 22 supra (conservative and and libertarian scholarship in constitutional law).
See note 17 supra (escalation in trend of conservative constitutional rulings of federal judges appointed by President Reagan).
In a post-Reagan era, the new American conservative movement may well face its own 'season of frustration, division and discontent.' Dionne, High Tide for Conservatives, But Some Fear What Follows, N.Y. Times, Oct. 13, 1987, at 1, col. 1; see also Barnes, Why Con't Conservatives Govern?, AM. SPECTATOR, May 1988, at 14; Fairlie, After the Revolution, NEW REPUBLIC, May 9, 1988, at 15.
Adapted from L. STRAUSS, LIBERALISM ANCIENT AND MODERN 223 (1968).