The Gallows in the Grove: Civil Society in American Law

The Gallows in the Grove: Civil Society in American Law

The Gallows in the Grove: Civil Society in American Law

The Gallows in the Grove: Civil Society in American Law


Writing of the France of the 1930s, the late Simone Weil declared, "The state has morally killed everything smaller than itself." Liebmann asserts that a comparable development has recently taken place in the United States, fostering civic apathy and an inability to address serious social problems, and that, not for the first time, abuse of judicial review has caused the Constitution to be used as a tool of class interests. After a general survey of these consequences, Liebmann discusses the original constitutional debates and understanding. He then assesses First Amendment doctrine, through a discussion of the views of Harry Kalven, the most influential modern commentator on free speech issues, and then discusses the appropriate relationship of constitutional restraints to governmental fostering of public policy, on zoning, education, law enforcement, urban renewal, day care, traffic regulation, and care of the elderly, and illustrates the hopeful developments that are possible if judicial restraint is restored. A significant analysis for all scholars and researchers in the areas of constitutional law and current American public policy and politics.


This book is about the mediating structures of American civil society, their depreciation by the courts, and the means for their revival. The title chapter is a survey of American institutions and the effect of post-World War II constitutional decisions on them. The second chapter is an exploration of the original intention concerning the functioning of American courts and political institutions. The third chapter discusses the power of governments to delegate functions to private institutions.

The second part of the book describes some of the changes necessary if the courts are to be returned to a more appropriate and restricted role as guardians of the political process and of freedom from fear of political actors. The first chapter considers the appropriate scope of the First Amendment by an assessment of the writings of the late Professor Harry Kalven, its most influential modern commentator, and calls for abrogation of the "commercial speech" doctrine; the second attempts to define the appropriate scope of government-provided legal assistance. The last two chapters discuss the dangers presented by federalization of the enforcement of criminal law and of social issues such as abortion.

The concluding part of the book is not about judicial doctrine, but about some positive measures that might be considered to restore damaged social institutions. The essays provide examples of the sort of political discussion that would become commonplace if our elections and political process were no longer dominated by "rights talk." The chapters successively consider policies toward law enforcement, welfare, land use, the schools, social services, the aging, and urban renewal. This part complements the discussion of neighborhood institutions in the author's The Little Platoons: Sub-Local Governments in Modern History (Praeger, 1995).

Because the tenor of this work is generally "conservative," two criticisms of its design may be anticipated. The first is that excessive blame for the predica-

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