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

Abstract

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 con- stitutional 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 any- thing 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