Little monsters, wild animals, and welfare queens: Ronald Reagan and the legal constitution of American politics

• DOI: https://doi.org/10.1108/S1059-4337(2009)0000049009
• Published date: 02 November 2009
• Pages: 157-210
• Date: 02 November 2009
• Author: Jeffrey R. Dudas

LITTLE MONSTERS, WILD

ANIMALS, AND WELFARE

QUEENS: RONALD REAGAN

AND THE LEGAL CONSTITUTION

OF AMERICAN POLITICS

Jeffrey R. Dudas

ABSTRACT

Scholars increasingly recognize the centrality of legal ideas and language

to the political vision that inspires American conservatism. However,

relevant studies have been limited to the discursive practices that motivate

conservative activism at the grass-root level. Exploration of the legal

discourses employed by prominent public officials thus carries significant

scholarly potential. For example, this chapter’s investigation of President

Ronald Reagan reveals that his political vision was suffused with legal

discourse. Reagan’s legal discourse, moreover, has exerted constitutive

effects both on American conservatism and on the form and substance of a

great deal of contemporary American public policy.

Studies in Law, Politics, and Society, Volume 49, 157–210

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049009

157

1. INTRODUCTION

It is conventional to note that, over the past generation, the ‘‘culture wars’’

have propelled American politics. It is similarly conventional to observe that

these wars have produced a host of negative cultural archetypes that have

both shaped the conservative political agenda and fueled conservative

participation in the culture wars themselves. The most prominent stock

villains of the conservative imagination are such socially dysfunctional and

subversive figures as the radical campus protestor who, encouraged by leftist

professors obsessed with ‘‘political correctness’’ (PC), unfairly denounces

America as cruel, racist, and sexist; the unrepentant violent criminal who is

coddled by a misguided criminal justice system that dwells on the criminal’s

lowly socio-economic background; and the greedy welfare cheat who swears

off hard work to defraud the public treasury. Exquisitely cultivated by

conservative intellectuals and public officials, such characters have leapt out

of the contemporary conservative imagination and become the subject of

widespread, general condemnation. In so doing, the stock villains of the

culture wars emerge as the ideological foundations for much of contempor-

ary American public policy. Recent trends in higher education policy (e.g.,

decreased governmental funding for public universities, the dismantling of

affirmative action admissions policies), criminal justice policy (e.g., the ‘‘war

on crime’’ and its components: mandatory minimum sentences, ‘‘three

strikes’’ laws, the flourishing of ‘‘Super Max’’ prisons, the revivification of

capital punishment), and welfare policy (e.g., the 1996 bi-partisan welfare

reform act signed into law by President Clinton) are oriented, in part, toward

confronting and containing the threats that these stock villains are said to

present to the American nation.

Less conventional are the insights of some law and society scholars, who

argue that legal discourse has been important for the rhetorical establishment

of these national villains, as well as for their entrenchment as the ideological

cornerstones of political practice (Passavant, 2002, pp. 137–163;Haltom &

McCann, 2004, generally; Dudas, 2008, pp. 137–153). Conservatism is thus

animated with a specifically legal consciousness.

1

It is not as well recognized

by scholars that this conservative legal consciousness was first articulated

most prominently by Ronald Reagan – who employed it to illuminate the

subversive tendencies of radical campus protestors, leftist professors, violent

criminals, and welfare cheats.

In particular, conservatives follow Reagan in emphasizing that the

elemental offense that America’s villains commit is that they employ a

devious, illegitimate logic of individual rights. This logic claims that American

JEFFREY R. DUDAS158

citizens are owed a perfect equality of outcomes. In rejecting the traditional,

legitimate understanding that citizens have the right to equal opportunities to

succeed – the right to compete in the marketplace, for example, without undue

governmental influence – the rights-based argument in favor of equal

outcomes denies also, according to New Right commentators, the very

foundations of American democracy. Indeed, the equal opportunities that

individual rights guarantee are said to be the distinctive features of the

freedom that American citizens enjoy. There are, moreover, pragmatic

considerations served by the nation’s traditional understanding of equal

opportunity rights: such rights, and the opportunities and freedoms that they

enact, conform to the prerogatives of law and order. As Glendon (1991) con-

tends, Americans should appreciate that our rights-based political tradition

embraces ordered liberty rather than personal license (Glendon, 1991,

pp. 8–14; see also Goldwater, 1960, pp. 33–38;Sowell [1984] 1988, p. 310).

However, the equal outcomes logic of rights is said to encourage behavior

that crosses the boundaries of law and order and, so, threatens social chaos.

For example, less powerful populations – such as women, racial minorities,

the poor, gays and lesbians, the young, and the criminally accused – are

frequently accosted for employing rights in irresponsible, socially destructive

ways. Not content with the governmental neutrality for which other

Americans ask, the less powerful make excessive, ‘‘special’’ rights-claims to

the equality of outcomes – claims that seek to enlist the active help of

government in the gratification of their wants and needs (Schacter, 1994,

1997;Goldberg-Hiller, 2002;Goldberg-Hiller & Milner, 2003;Dudas, 2005,

2008). The equal outcomes logic of rights is thus said to destabilize the social

order and, in so doing, to undermine the specifically legal foundations of the

American nation. Accordingly, the conservative legal consciousness empha-

sizes that employment of the equal outcomes logic of rights is an exercise in

un-American activities.

Prominent conservatives frequently employ this distinctive legal con-

sciousness both as a conceptual resource for making sense of the American

nation and as a strategic resource for realizing conservative movement

goals. But although scholars have begun to explore the use of the

conservative legal consciousness, thus far inquiry has shied away from its

employment by conservative public officials.

2

The paucity of scholarly

analysis in this regard is unfortunate; for it removes from view one of the

original, and, I will argue, the most influential single practitioner of the

conservative legal consciousness: America’s 40th President Ronald Reagan.

Indeed, there is a relatively straight line connecting Reagan’s legalistic

depictions of the American nation, first, to conservative movement politics

Ronald Reagan & the Legal Constitution of American Politics 159