Groundhog Day Again?: Is the "Liberal Tradition" a Useful Construct for Studying Law, Courts, and American Political Development?

How meaningful is it to talk about the "liberal tradition" as a context within which constitutional deliberation takes place in the United States? How helpful is it in considering the role of law and courts in American political development? Louis Hartz's Liberal Tradition in America has reached the half-century mark, and Hartz's formulation of the boundary conditions of political discourse and political life has remained highly influential despite the many critiques that have been leveled at his thesis over the years.² In this essay, I suggest that the answer is that it is not especially helpful, and that talk of the "liberal tradition" carries a great deal of baggage constitutional scholars might not want to carry.

To be sure, there appear to be very real constraints on what most of those who don black robes and speak the language of constitutional law are prepared to think. Justice Robert Jackson wrote that "never in its entire history can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day."³ The Constitution establishes boundary conditions for deliberation that are much tighter, in the view of some legal scholars and jurists, than in the view of others, and arguments abound on how malleable the principles and values expressed in that document are. That legal discourse has been relatively constrained remains clear. It is also reasonably clear that the 2004 election assured that the high Court will move closer to the pole about which Justice Jackson complained than it might have with a different electoral outcome. Movement in one direction seems to eventuate in some course correction, when the appointment process operates under a different regime. But do such observations get us any closer to an assessment of the value of the concept of a "liberal tradition"?

When social scientists and legal scholars refer to "the liberal tradition" in American politics and law, they do not simply mean something the Democrats used to embrace in the Great Society era nor do they mean what conservative commentators call "liberalism," a label attached to any current Congressional Democratic aspirations. Rather, when scholars talk about "the liberal tradition" they use it to characterize the conditions and boundaries within which discussions and disagreements over principles, meanings, and values take place. In this essay, I will work with Hartz's understanding of that "liberal tradition", since this understanding of our tradition has been so influential.

For Hartz, the liberal tradition was characterized by Lockean, atomistic individualism, wedded to Horatio Alger in the mid-nineteenth century. He argued that the American democrat, a peasant-proletarian hybrid, was hoodwinked by the Whig Hamiltonian-capitalists in the late antebellum era. Seduced by the materialist dream of equality of opportunity, the American democrat accepted the rules of the game as the Whigs themselves won the economic race. Hartz contended that the Whigs had managed to "throw a set of chains around" the American democrat that became an ideological straightjacket. American political thought became frozen in time and intellectually impoverished.⁴ In Hartz's America, politics was marked by consensus; truths were self-evident, beyond examination. Conflicts were not battles to the death, and lines of argument that moved beyond the boundaries of a liberal worldview died out fairly quickly (though heirs of liberalism could get rather hysterical about challenges from the left).

What made all this possible was that America lacked a feudal past, and there was no genuine aristocracy against which an emerging bourgeoisie could react or against which they could constitute a class identity. It necessarily followed for Hartz, since he accepted the notion that ideas were the product of relations among social classes, that the peasant proletariat never developed a working-class consciousness during the flowering and maturation of the industrial system. There was a moment for socialist appeals, but Americans missed the boat and were hereafter immune to such appeals. In the new world, Locke equaled Burke. That is what Americans conserved, and became "exceptional" in their immunity to class...