Confessions of a Flawed Liberal

My name is Rebecca and I am a flawed liberal. Indeed, I fear I may be the embodiment of the very pathology that this collection of thought pieces was designed to ponder. The topic that we are examining here is whether a strange "ideological drift"¹ has befallen the academy such that those who once favored traditionally liberal positions, most commonly advocating the broad interpretation of rights against the state, now seem to show less enthusiasm for some forms of rights, particularly in the area of freedom of speech. At the same time, those traditionally considered conservative have been uncharacteristically urging constitutional limits on government power through the vigorous enforcement of rights, typically involving claims of free speech or exhortations to principles of colorblindness. We wonder what explains the shift.

I am a case in point. I harbor such consistently liberal positions on nearly all issues that an online candidate-matching test before the 2004 election placed me at a 100% overlap with Al Sharpton. I care first and foremost about equality, individual rights and the protection of liberty from encroachment by overzealous and ungenerous majoritarian institutions. Yet — when it comes to the First Amendment, my sterling liberal credentials show a bit of tarnish. I have always hated Buckley v. Valeo,² with its fundamental claim that money is speech. In the spirit of confession, I must also acknowledge that I was the only person I knew who admitted to being deeply rankled by the Supreme Court's invalidation of the federal law prohibiting virtual child pornography.³ And, yes, my blood boils at the high degree of protection given to hate speech.⁴

Does this put me (and others like me) in need of a twelve-step program for hypocrites, or are the views I describe representative of some legitimate, and still liberal, perspective on constitutional law? Must I concede to believing less in freedom, constitutional democracy and individual rights than I thought I did, due to these terrible personal revelations that emerge every few Supreme Court Terms? With the confession out of the way, I wish to devote the remainder of this brief essay to exploring how a liberal might, without hypocrisy — and without rights skepticism — defend these seemingly inconsistent positions regarding individual rights and government regulation.

We all recognize that different visions of democracy can be defended, even under the single American Constitution. Because that document and its history encompass so many strands of political thought, interwoven to create a complex democratic fabric, one can find threads of liberalism, pluralism, majoritarianism, republicanism, and any number of other –isms plausibly included among our country's basic commitments. This richness gives rise to lively debates in constitutional scholarship, and leads to radically different interpretative theories about what the democracy requires.⁵

Even if one selects liberalism as the dominant spirit underlying our constitutional democracy, one has by no means ended the inquiry, as liberalism itself does not comprise a unified set of commitments or understandings about the entailments of democracy. As the stated topic of our discussion suggests, it is common to assume a general correlation between "liberal" thought and hostility to government regulation, along with a corresponding "conservative" hostility to constitutional limits on government power. Characterized this way, the drift that we perceive might be thought to suggest a retreat of liberals from their commitments when they, in keeping with my opening confession, support certain types of regulation in the face of constitutional attack, particularly under the First Amendment.

Over a decade ago, Jack Balkin drew an intriguing parallel between this modern liberal ambivalence toward a monolithic right to freedom of speech and the Lochner-era progressive attack on the similarly monolithic right to freedom of contract.⁶ Both represent what he considered to be a "realist" response to an established hierarchy of rights, distributions and values that tends to be unfavorable to the progressive agenda. Depending on the prevailing background societal conditions, a strict constitutional enforcement of rights in the form of mandated state neutrality (laissez-faire, even) — while superficially advancing some tenets of classic political liberalism — can undermine progressive reform and entrench the status quo in a...