LIBERALISM

In today's America the term "liberalism" is circulated mainly by those who pronounce it with scorn—by the political right and by academic theorists who have little else in common with the right. Yet the American nation was conceived in liberalism. The declaration of independence proclaimed the liberal ideals of individual liberty, legal equality, and the rule of law. It also embraced the liberal doctrine that located the legitimacy of governmental power not in divine right but in the consent of the governed.

The Constitution, too, was mainly seen by its Framers through liberal lenses. What they saw was a social compact deriving its authority from "the people of the United States" and designed in major part to serve liberal purposes: "to establish justice," "to secure the blessings of liberty," and by dampening the causes of civil strife, "to insure domestic tranquility." What they did not see—or would not see—was the fundamental inconsistency of slavery with all these purposes. Putting this enormity out of their minds, the Framers of the Constitution and the bill of rights saw the chief source of oppression in the power of the state and placed much of their hope for achieving liberal ends in a system of limited government.

The limits were both structural and substantive. Liberty was to be achieved both by the dispersal of the powers of government (see federalism; separation of powers) and by broadly worded prohibitions on various kinds of governmental interference with the rights of individuals. Although the liberalism of the Framers was strongly influenced by the Enlightenment's notions of rationality, these substantive limitations were not the product of abstract reason. Rather, they were designed to serve intensely practical purposes for the new nation. The liberal doctrines of freedom of speech and freedom of the press, for example, seemed essential to the citizen participation on which the continued legitimacy of government would depend. Similarly, the liberal doctrine rejecting divine authority as the basis for governmental legitimacy served the cause of domestic peace. The Framers, well versed in recent British history, need not stretch their imaginations to see how the interactions of religion and government might plunge a nation into civil strife. A major purpose of both the separation of church and state and the guarantee of religious liberty was to promote tolerance and thereby to moderate religion's capacity for political divisiveness.

Today's Constitution, the product of two centuries' worth of interpretation, differs dramatically from the Constitution of the Framers. Yet, what Louis Hartz called "the liberal tradition" has remained central in American constitutional law, surviving political and social upheavals and even a civil war of our own. Like all paradoxes, this contradiction of continuity and change is more apparent than real. Over the years liberalism, like the Constitution, has taken on a series of new meanings in response to changes in America's economic, social, and political conditions. Jacksonian democracy, the civil war and reconstruction, the late-nineteenth-century industrial expansion, the new deal, and the civil rights movement each brought a new version of liberalism that made its mark on the Constitution. The constitutional law of our time—like the term liberalism itself—evidences overlays of all these eras of social change, from the days of Adam Smith to the days of martin luther king, jr. The decisions of the Supreme Court, the nation's leading expositor of the Constitution, have both reflected the transformations of liberalism and contributed to them.

In the nation's early years the individualist liberalism of john locke was tempered by a vision of republicanism that imposed on the people's governors a moral responsibility to attune their public decisions to the general good, not merely their own self-interest or the interests of their constituents. This republican ideal was not wholly unrealistic so long as government was largely in the hands of the gentry. By around 1820, however, gentry rule had crumbled under the dual pressures of democratization and geographical expansion. In the era of andrew jackson the consent of the governed implied an electorate that was expanded to include most adult white men, and the body of citizens who could make effective use of individual freedom—especially economic freedom—was similarly expanded by a doctrine of equal liberties. The widening of the franchise was almost entirely the work of legislatures. The protection of economic freedom, however, became the business of the courts, acting in the name of the Constitution. The judicial activism of the marshall court (1803–1835) led the way in promoting a nationwide free-trade unit by striking down a number of state regulatory laws (see state regulation of commerce; contract clause).

During the period before the Civil War, another doctrine of liberalism came to the fore, with major assists from the adherents of abolitionist constitutional theory and from those who opposed slavery in the territories."Free labor" became a slogan of the new republican party and of abraham lincoln in particular (see labor movement and constitutional doctrine). The doctrine of free labor, infused with the liberal goals of democracy and individualism, received a strong impetus when the emancipation proclamation converted a war to save the Union into a war to free the slaves—a process that culminated in the thirteenth amendment, ratified in 1865.

Generously interpreted, the Thirteenth Amendment might have served as a foundation for a sweeping constitutional guarantee of racial equality and for congressional legislation serving this end. The politics of Reconstruction impeded such an expansive interpretation, but did produce the fourteenth amendment, with its broad guarantees of equal protection and due process, and the fifteenth amendment, prohibiting racial discrimination in voting rights. The three Civil War amendments, along with a series of civil rights acts, were seen by their proponents as establishing a principle of equal citizenship that would carry out some of the unfulfilled liberal promises of the Declaration of Independence.

These hopes were soon dashed. By the end of the century, politics—North and South—had turned away from a concern for racial equality. The Supreme Court had followed suit in a series of decisions that converted the Civil War amendments and the Reconstruction civil rights laws into guarantees of formal equality that offered little real protection for the substantive values of equal citizenship: respect, responsibility, and participation (see civil rights cases; plessy v. ferguson).

As politics increasingly turned to the business of industrial expansion, the dominant version of liberal individualism now focused on the freedom of industry and enterprise from economic regulation. Beginning in the 1880s, for half a century the Supreme Court policed the boundaries of economic liberty, striking down a great many regulatory laws in the name of economic due process and holding a number of federal statutes invalid as exceeding the power of Congress under the commerce clause. During this period, and especially during world war i and the Red Scare of 1919–1920, the Court gave little comfort to those who were urging a similarly expansive reading of other constitutional legacies of the Framers' liberal individualism—such as first amendment freedoms.

It took the Great Depression and world war ii to effect a realignment that would give the center of the political stage to the liberalism of the New Deal. This rendering of liberalism, like the liberalism of Reconstruction, emphasized the necessity of substantive underpinnings for individual liberty. The New Deal's legislative program centered on economic democracy and social welfare, and to achieve these ends its leaders sought to guide the national economy with governmental regulation on an unprecedented scale. During the first term of President franklin d. roosevelt, an activist majority of the Supreme Court fought a rear-guard action against the new liberalism in the name of the old. In 1937, however, before Roosevelt had made a single appointment to the Court, the majority shifted. From that day to the present, the Court has routinely upheld economic regulation both by Congress and by the states and has also upheld the legislative framework of the modern welfare state (see taxing and spending powers; spending power). During the 1930s and 1940s, the Court also took its first steps toward reinvigorating the First Amendment.

All these developments in constitutional doctrine supported a liberalism in which equality meant not just formally equal laws but the substance of equal citizenship. The Court cooperated with the political branches in an effort to bring freedom and security to people who had been seen as outsiders and so to achieve a more inclusive definition of the national community. For a time, the Cold War, like the Red Scare before it, laid a restraining hand on political freedom and also marked a group of dissidents as outsiders. But just as the Cold War reached the peak of its influence on domestic politics, the new liberalism, with its impulse to extend the blessings of liberty to all Americans, took a giant step forward. The warren court opened the modern civil rights era with the decision in brown v. board of education (1954).

theBrown decision began a "second Reconstruction," not only by expanding the meaning of constitutional doctrines of racial equality, but also by providing a catalyst for a vigorous political movement, Congress responded with two momentous laws aimed at extending the substance of equal citizenship to the members of racial and ethnic minorities: the civil rights act of 1964 and the voting rights act of 1965. In its active liberal reshaping of constitutional doctrine, the Warren Court began in the civil rights field, but did not end there. Particularly during the last six years of the tenure of earl warren as Chief Justice, the court not only extended judicial remedies for racial desegregation but also promoted political equality by ordering reapportionment of legislatures on the principle of "one person, one vote." The court also greatly expanded the substantive protections of the First Amendment and recognized a constitutional right of privacy. In the field of criminal justice the Court accomplished the incorporation of nearly all the guarentees of the Bill of Rights into the Fourteenth Ammendment, thus applying them to the states as well as the national government. Furthermore, the court tightened the requirements of many of those guarantees, making th Constitution a significant limitation on police practices and the proceedures of state criminal courts.

Even after Chief Justice Warren retired in 1969, the constitutional momentum of the Warren Court carried the Court to further liberal activism. Most notably, the burger court in the 1970s expanded the reach of the equal protection clause to the field of sex discrimination and held in roe v. wade (1973) that the right of privacy largely forbade a state to criminalize a woman's choice to have an abortion. These two developments were closely related; women's right to control their own sexuality and maternity is critical to their ability to participate in society as equal citizens.

Political liberals generally have applauded all these constitutional developments. Yet each of them has produced its own "backlash" in the political arena. When President lyndon b. johnson signed the 1964 act into law, he predicted that the South would thus be handed to the Republican party. In Presidential politics, this prediction has been validated, starting with the successful "southern strategy" of richard m. nixon in 1968. Nixon explicitly criticized the Warren Court's decisions in the criminal justice area, and the four Justices that he appointed to the Court began the process that would eventually dismantle a considerable part of that doctrinal structure. As for civil rights, critics of the rehnquist court have said that the second Reconstruction lasted only a little longer than the first one did. In the 1980s a firm majority of the Court has embraced a doctrinal model centered on formal racial equality, sharply limiting the uses of affirmative action and other group-based remedies for the group harm of racial discrimination. The right of privacy has not yet fulfilled its promise as a generalized protection of individual freedom in matters of intimate personal relations, but rather has been narrowed even in the area of abortion rights. Recent First Amendment developments are typified by the public forum doctrine, which began as a means to expand expressive freedom and now serves mainly as a threshold barrier to turn away would-be speakers' claims. In the world of constitutional doctrine, as in the larger political world, modern liberalism has been obliged to assume a posture of defense.

The constitutional liberalism that animates political liberals today—and serves as the political right's bête noire—is a far cry from the liberalism of nineteenth-century economics that dominated constitutional doctrine for five decades. Its primary modern sources are the New Deal's social welfare concerns and the Warren Court's concerns for civil liberties and for the inclusion of subordinated groups in the promise of America. Even so, today's liberalism continues to draw on the liberalism that infused the framing of the Constitution and the Fourteenth Amendment: the rule of law, tolerance as a means to civil peace, individual rights to freedom from excessive governmental intrusion, and equal citizenship.

Although the political resistance to the New Deal had its main base in the business sector, today business has largely made its peace with the newer liberalism—not exactly embracing regulation, but accepting it. The most vehement opposition to affirmative action programs, for example, comes not from business groups, but from "social issues" conservatives who equally oppose the recognition of abortion rights or claims to sexual freedom. These citizens, who are presently the dominant voices on the political right, do not reject the liberal constitutional ideals of equality, individual rights, or tolerance, but argue that in recent decades liberals on the bench have abused their power to write a perverted version of those ideals into constitutional law.

For the "social issues" conservatives, these constitutional ideals are unchangeable; they took permanent shape when they were written into the Constitution. In this view constitutional equality means formally equal laws and no more; individual constitutional rights are limited to the specific rights of life, liberty, and property that the Framers had in mind; and the reach of constitutionally required tolerance is permanently confined by the morality of the Framers (see conservatism and the constitution). They emphatically reject, for example, any claim to equality or rights of tolerance in the context of governmental discrimination on the basis of sexual orientation, insisting that such matters be left to majoritarian community morality.

Constitutional liberalism is also under attack from quite another political direction, notably by theorists in the critical legal studies movement. These writers seek to "deconstruct" the very idea of rights by showing that all legal doctrine is indeterminate and therefore subject to manipulation in the interest of the powerful. Here, a countercurrent has developed among racial and ethnic minority writers who argue the practical utility of claims of rights in overcoming group subordination and point to the civil rights movement as an example of the liberating possibilities of rights—an argument the Framers of the Constitution surely would understand.

Another attack on liberalism by critical theorists, now joined by a number of feminist writers, centers on the potential of liberal-individualist attitudes for impoverishing the sense of self and submerging the sense of community responsibility—especially responsibility toward the down-and-out. Related to these concerns is the criticism that classical liberalism, locating the threat to individual freedom in the power of the state, neglects the oppressive capacity of nongovernmental actors, compounding the wrong by insisting on a strong publicprivate distinction. (See state action—beyond race.)

From both sides, then, liberalism is challenged for undercutting the claims of community. A liberal tolerance may result in constitutional protections not only for consensual homosexual behavior but for racist speech or pornography. (The antipornography cause in particular has produced an alliance between the political right and one branch of feminists.) Similarly, liberalism's long-standing devotion to Enlightenment-style rationality is under attack from both sides. The dominance of secular rationality is attacked by those who would promote school prayers or the teaching of creationism in public schools; and feminists and others argue that the instrumental rationality of the liberal welfare state's bureaucracy is alienating and dehumanizing.

The critical theorists' critique of liberalism has yet to make a significant impact on constitutional law. The critique from the right, however, has been warmly received by the federal judiciary, which in large measure was reconstituted during the 1980s. Now it is liberal judges who are fighting a rear-guard action. Yet some important elements of the liberal constitutional inheritance from the New Deal and the Warren Court seem secure. Citizens at all points on the political spectrum continue to hold the federal government responsible for maintaining the health of the national economy, including high levels of employment. Although social welfare programs perceived as aiding the minority poor are anything but robust, social security is the nearest thing we have to a political sacred cow, and some form of national health insurance seems likely to emerge soon. Explicit governmental discrimination against the members of subordinated racial or ethnic groups, we can assume, will be unconstitutional as long as we have the Constitution.

These examples are modest when they are measured against the modern liberal agenda; saying that the constitutional clock will not be turned back to 1950 or 1930 is not saying very much. For the moment, surely, liberals must seek their goals primarily in political arenas. In these arenas, however, we have already seen some important effects of racial equality in voting rights—for example, in the process of confirmation of Supreme Court Justices.

Undoubtedly, "the liberal tradition" will remain central in American constitutional jurisprudence because our constitutional culture is indelibly imprinted with the rhetoric of liberalism: equality, tolerance, individual rights. Another certainty, however, is that the meanings of these large abstractions will change in response to changes in American society. Today's political liberals will applaud some of those changes and regret others. But the process is one that no true liberal can lament.

Kenneth L. Karst
(1992)

Bibliography

Altman, Andrew 1990 Critical Legal Studies: A Liberal Critique. Princeton, N.J.: Princeton University Press.

Crenshaw, KimberlÉ 1988 Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law. Harvard Law Review 101:1331–1387.

Diggins, John P. 1984 The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism. New York: Basic Books.

Ferguson, Kathy E. 1984 The Feminist Case Against Bureaucracy. Philadelphia: Temple University Press.

Hartz, Louis 1955 The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution. New York: Harcourt Brace Jovanovich.

Karst, Kenneth L. 1989 Belonging to America: Equal Citizenship and the Constitution. New Haven, Conn.: Yale University Press.

Shiffrin, Steven 1983 Liberalism, Radicalism, and Legal Scholarship. UCLA Law Review 30:1103–1217.

Smith, Rogers M. 1985 Liberalism and American Constitutional Law. Cambridge, Mass.: Harvard University Press.

Unger, Roberto Mangabeira 1975 Knowledge and Politics. New York: Free Press.

Wolff, Robert Paul 1968 The Poverty of Liberalism. Boston: Beacon Press.