Bringing It All Back Home?
Kersch, Ken I., Constitutional Commentary
ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES. James E. Fleming (1) and Linda C. McClain. (2) Cambridge, Mass.: Harvard University Press. 2013. Pp. 371. $49.95 (Cloth).
"Can liberalism still tell powerful stories?" asked the intellectual historian and political theorist Eldon Eisenach in a recent essay. (4) In the late nineteenth and early twentieth centuries, the progenitors of the contemporary American liberal/left--Populists, proponents of the Social Gospel, and Progressives--met and beat the era's powerful legal and political conservatism with appeals to justice, equality, and a "new" freedom, not as abstract concepts, but made through telling stirring stories about the country's historical trajectory as a nation, and its progress toward Christian virtue. (5) The liberal Democratic triumph and establishment of a governing regime, however, coincided with the subsequent outbreak of the Second World War and then the Cold War. Both called into sharp question some of the main lines of the Populist and Progressive Era's proto-liberalism, including its breast-beating nationalism, its attraction to mass democracy, and, in domestic politics, its aggressively theological us-versus-them substantive commitments. Liberals, now in control of all branches of the national government (and most of the state governments), had no intention of retreating from any of their substantive policy commitments. But many started talking about those commitments, and justifying them, in new ways they believed to be better suited to the ambient intellectual and political context. In an age of liberal dominance, the commitment to the science of society and value neutrality became the new gold-standard in the thought and rhetoric of politics, public policy, and law. (6)
In his account of these developments, Eisenach argued that the decision of mid-twentieth century American liberals to make a commitment to neutral principles the cornerstone of their understanding of liberal democracy had three major effects. First, it gave preference in political and legal discourse to apodictic claims of individual right, as against an alternative understanding that the nature and scope of rights was to be determined politically, with the end of achieving common public purposes. This preference, in turn, underwrote the notion that courts were the polity's preeminent, and only reliable, "forum of principle." This served to redirect progressive/liberal reform out away from electoral politics and into the courts to an historically unprecedented degree. Second, it moved liberals away from the kinds of nationalist and patriotic visions referencing a common past and dreaming of a common, and better, future into legalistic and quasi-philosophical arguments about neutral principles of justice and fairness, to be applied by appropriately schooled judges. Third, these developments created a "narrative vacuum" which, should they seize the opportunity, the conservative opposition could fill anew with their own nationalist, religious, and patriotic visions--which, by the 1970s, conservatives have done. American liberalism has been on the defensive ever since.
It is precisely as this night fell on liberal dominance in American politics that two resplendent Owls of Minerva took flight: John Rawls's A Theory of Justice (1971) and Ronald Dworkin's Taking Rights Seriously (1977). (7) While armies of brainy Rawlsian political theorists and Dworkinian jurisprudes moved towards consolidating their Ivory Tower empires, conservatives reconstructed American politics, public policy, and constitutional thought. These two sophisticated, subtle, and soporific tomes certainly kindled enthusiasm amongst careerists in the groves of academe. But their all-but-storyless, a-political, ostensibly neutral, and maddeningly abstracted exposition left others cold. As liberalism's substitution of philosophical for narrative coherence, Eisenach concluded, "came liberalism's loss of the capacity to mobilize national majorities for common ends. …