The Strange Career of Legal Liberalism.

• Jurisdiction: United States
• Author: Griffin, Stephen M.
• Date: 22 December 1997

By Laura Kalman.(2) New Haven, CT: Yale University Press. 1996. Pp. viii, 375. Cloth, $40.00.

Laura Kalman's book appears at first to be history on a very small scale. She offers an account of the reaction of ten legal scholars(3) to the Supreme Court's conservative turn in the 1970s and 1980s, as well to developments in constitutional theory, such as the need to justify Roe v. Wade(4) and the rise of originalism. Closer examination reveals that Kalman has written the first history of contemporary constitutional theory, a history that will be of interest to anyone doing work in the field. More important, Kalman has provided the most detailed and sophisticated discussion to date of what can be called the problem of history in constitutional interpretation.(5)

Kalman defines legal liberalism "as confidence in the ability of courts to change society for what judges believe is the better."(6) (p. 4) More specifically, legal liberalism means support for the Warren Court and a belief that its legacy deserves protection from (presumably) legal conservatives. Kalman contends that protecting the legacy of the Warren Court became increasingly problematic in the 1970s, leading to a crisis that law professors hoped to solve by turning to other academic disciplines--first to moral philosophy, then to hermeneutics, and finally to history. Kalman's ten scholars are all examples of this final turn to history, specifically the turn toward republicanism, that has received so much attention in the law reviews over the past decade.

Kalman identifies herself as a legal liberal, and she has written not simply a legal history, but a self-conscious defense of the use of history as a way to come to grips with the changes that have occurred in the Supreme Court's jurisprudence since the Warren Court. Kalman also identifies strongly with Yale, where she received her doctorate in history. She seems to have the deepest insight with respect to the constitutional scholars that have watched the Court from New Haven over the years, first discussing Alexander Bickel, then Owen Fiss and Robert Cover, and finally Bruce Ackerman and Akhil Amar. At times, the book threatens to become a history of constitutional theory at Yale.(7)

Kalman's history of legal liberalism invites reflection not simply on the proper relation of history to constitutional law, but on the possible future of legal liberalism and the nature of constitutional theory. After summarizing Kalman's history, I will address each of these topics below.

I

In Part One, "The Spell of the Warren Court," Kalman provides an intellectual history of contemporary constitutional theory. She begins by tracing its origins in legal realism and the reaction of legal-process scholars such as Henry Hart to Brown v. Board of Education.(8) According to Kalman, the legacy of legal realism for constitutional theory was a concern with finding objective foundations for constitutional reasoning. In general, however, she regards legal-process scholars such as Hart and Bickel as having far more influence than the legal realists over the subsequent course of constitutional theory. Like many scholars (including myself), she identifies Bickel's "countermajoritarian difficulty" as having set the agenda for constitutional theory in the law schools.(9) She tends to see subsequent developments in constitutional theory, including the turn to republicanism, as efforts to answer Bickel's democratic critique of judicial review.

The greatest impetus behind the development of contemporary constitutional theory, however, was not Brown, but Roe. Roe was the return of substantive due process, thought discredited in the Lochner era, and it set constitutional theorists to work in a way that Brown had not. The responses to Roe were interdisciplinary in a way that was new. Kalman describes the growing interest of law professors in other disciplines in the 1970s, inspired partly by more conservative readings, of the Constitution by the Burger Court. The first turn was to moral philosophy, specifically Rawls's theory of justice, but, as Kalman tells the story, legal scholars soon decided that Rawls's work did not have much direct relevance to constitutional law.

More fruitful was Thomas Grey's introduction of the distinction between interpretivism and noninterpretivism.(10) Although Grey explicitly endorsed a noninterpretivist justification of controversial Court decisions, the subsequent debate seemed to involve scholars trying to justify the same decisions while remaining resolutely interpretivist. The publication of Raoul Berger's critique of the Court's fourteenth amendment jurisprudence made this move much harder by in effect defining interpretivism in terms of what came to be known as originalism.(11)

Despite the fact that the Burger Court did not overrule Warren Court rulings wholesale, Kalman sees legal liberalism as being under siege during the late 1970s, especially in the wake of the rise of law and economics and critical legal studies. Legal liberalism was also troubled during this period by splits within it over important public policy issues such as affirmative action. As legal liberals became demoralized, they turned at the beginning of the 1980s to other disciplines for reassurance with a sense of renewed effort. This time, the turn was to hermeneutics.

I suspect that most of us who diligently waded through the endless articles and symposia generated in the 1980s on the nature of interpretation eventually reached the conclusion that Gadamer and company either did not lead anywhere or simply tracked long-established lines of reasoning in legal interpretation.(12) At times it seemed that the main reason legal scholars were interested in hermeneutics was to have a handy way to refute originalism. For example, Kalman describes Paul Brest's attempt to criticize originalism by using hermeneutic theory.(13) But the use of complex European theories of interpretation probably only confirmed originalists in their belief that legal liberals were noninterpretivists through and through.

For Kalman, Owen Fiss exemplified legal liberalism in the 1980s, first declaring that traditional approaches were dead, then gradually assuming a more hopeful outlook. Fiss's initial pessimistic judgment was more the result of developments in legal theory generally, specifically the already mentioned challenges posed by law and economics and critical legal studies, than the outcome of debates in constitutional theory. Nonetheless, Kalman reaches the somewhat extreme conclusion that by the mid-1980s, legal liberalism "appeared dead, a historical relic. Almost precisely at this point, history came to the rescue." (p. 131)

The turn to history worked in a way that the earlier turns to moral philosophy and hermeneutics did not. A school of thought, neorepublicanism, was created from the ideas of the founding generation. It was created in part to answer the conservative critics of mainstream constitutional theory, from Attorney General Edwin Meese onward, who used originalism as a club to pillory legal liberalism. While legal liberals could respond by criticizing originalism, they did not want to abandon the Framers to the tender mercies of the Reagan administration. Properly understood, didn't history support the New Deal and the Warren Court? And so the turn to history began.

At this point, Kalman provides some background on the republican revival, which is the main focus of the book. Legal scholars took inspiration from the histories of republicanism provided by Bernard Bailyn, Bailyn's student Gordon Wood, and J.G.A. Pocock. Kalman identifies Pocock as being of special importance to legal liberals in search of a new approach because "Pocock was saying America possessed a home-grown and nonsocialistic alternative to the liberal tradition." (p. 153) Cass Sunstein and Frank Michelman were the legal liberals leading the way toward republicanism. Kalman says that "liberal law professors marketed republicanism as a theory that could solve the counter-majoritarian difficulty, revive Warren Court liberalism, provide progressives with even more than they had received from the Warren Court, and had the Founders' imprimatur." (p. 160) But Kalman sounds a note of warning. "Once law professors made the historic turn, historians entered the fray to police their territory." (p. 163)

While Kalman's account of the progress of contemporary constitutional theory is excellent in many respects, it is always difficult to write this kind of "present history."(14) Since the events Kalman discusses are still within living memory, I suppose that some scholars would quibble over this or that aspect of her story. My particular quibble is that Kalman seems to think that Bickel's countermajoritarian difficulty dates back to the founding and that Bickel represented it as such. To the contrary, the countermajoritarian difficulty is largely a twentieth-century creation. The difficulty had credibility for Bickel's readers because of the conflict between the New Deal and the Old Court, not because the founding generation also believed in majoritarian democratic principles and set those principles against judicial review. Bickel clearly relied on this twentieth-century background in The Least Dangerous Branch, not the thought of the founding generation.(15)

In Part Two, "Lawyers and Historians," Kalman drops the chronological narrative of legal liberalism to provide an extended argument on the relationship between law and history. She wishes to argue that "historians inside and outside the law schools have something to say to academic lawyers, and that both lawyers and historians would benefit from the interchange." (p. 9) She also has a point to make against the many historians who criticize the use of history in legal scholarship: "historians should recognize that the historic turn represents a sensible strategy for legal liberals and...law professors, who yearn...