Academic journal article The William and Mary Bill of Rights Journal

A Welfare State of Civil Rights: The Triumph of the Therapeutic in American Constitutional Law

Academic journal article The William and Mary Bill of Rights Journal

A Welfare State of Civil Rights: The Triumph of the Therapeutic in American Constitutional Law

Article excerpt


This Article examines the influence of the therapeutic culture on the modern constitutional law of civil rights. The therapeutic culture is defined as one in which the central moral question is individual fulfillment. That culture has sprung up to replace older cultures such as Protestantism and classical republicanism, which are no longer capable of appealing to a nation as diverse as the United States. Instead of asking whether individuals or the nation conform to some external moral system, the therapeutic culture asks whether individuals are happy or fulfilled. This Article demonstrates that the therapeutic culture has had a significant effect on the constitutional law of civil rights. Drawing on an interdisciplinary approach, including history, sociology, and law, it offers a reading of some of the most important civil rights cases of the last hundred years to demonstrate how concepts of personal fulfillment, such as emotional comfort and psychic integrity, have been used to draw the boundaries of state action and declare the meaning of the Constitution. While this development has led to the recognition of many new rights, it also poses threats to liberties that are endemic to the therapeutic culture. These include the aggrandizement of state authority in the name of therapy and the danger of dependence on the courts rather than ourselves as agents of therapeutic change.


One ofthe most important features ofthe last century of American law has been the growing role of the courts in policing civil rights. From the early days of due process through the Warren Court' s "rights revolution" to the most recent line of cases extending concepts of personal autonomy, the courts have consistently expanded the reach of law by defining and enforcing new rights.! Various explanations have been offered for this "rights explosion." Some point to the success of the desegregation movement in the courts, which inspired confidence in lawsuits as a means of vindicating civil rights.2 Others suggest that dissatisfaction with the slow pace of representative politics has made the courts a more attractive alternative for those seeking protection or redress.3 Still others note that the proliferation of lawyers and the adversarial trend of America's legal culture have glorified litigation above the political arts of legislation and compromise.4 And it has been pointed out that the Fourteenth Amendment has accelerated the growth of rights law by expanding the federal power of judicial review.5

There is truth in all these accounts, and a phenomenon as complex as the rights explosion surely demands more than one explanation. But one of the most important explanations, which has been largely overlooked, is the connection between the modern law of civil rights and the American therapeutic culture. Over the last century, therapeutic ideals have permeated American life, and the law has not been immune.6 Both the content of rights law and its increasingly broad scope can be seen as direct responses to the demands of the culture for therapeutic government. Understanding this connection can give us a greater appreciation of the ways in which culture influences law and of the rewards and the risks of the present direction of both law and society.

The therapeutic culture has been studied by historians, sociologists, and other observers since at least the 1960s. Briefly defined, it is a culture in which the central question is the fulfillment of the individual rather than the individual's compliance with collective goals or moral authority outside the self.7 In this it departs from older cultural paradigms such as Protestantism, classical republicanism, and Lockean liberalism, all of which tended to treat the self as less important than the moral or civic order.8 In the therapeutic culture, the self is the moral order, and the development or happiness of the self is among the highest goals of society. …

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