Hartz, Political Culture, and Supreme Court Decision Making in the 21st Century: Questioning Popular Constitutional Theory

Abstract

Hartz, Political Culture, and Supreme Court Decision Making in the 21st Century:Questioning Popular Constitutional Theory Ronald Kahn (bio) I. Introduction The impact of Louis Hartz on understanding constitutional liberalism has been impressive. One of the most subtle reflections on the importance of Hartz is ironically J. David Greenstone's reinterpretation of Hartz. Greenstone agrees with Hartz that the liberal political culture is central to understanding political change in America. However, unlike Hartz, it is the conflictual nature of American liberal culture, not its unitary character, which helps us understand its impact on American politics and society.1 I will outline Greenstone's vision of the conflictual, non-unitary American political culture, as he applied it through a critique of methods of interpreting court action that rely on unitary visions of American political culture.2 I will then explore a few of the implications of the presence of a non-unitary political culture for how we can better explain Supreme Court decision making and the place of the Supreme Court in American political development (APD). In doing so, I draw on work that emphasizes that Supreme Court decision making is bi-directional between internal institutional norms and processes and the political, social, and economic world external to the Court. II. Greenstone's Non-Unitary, Conflictual Political Culture Greenstone, a student of Hartz, presents an alternative vision of the constitutional regime.3 This vision contains three conflicting accounts of the liberal regime in America: a republican account, in which political events are interpreted in terms of the opposition between citizens who can be trained in civic virtue and concerns about the possible usurpations of power by public officials; a humanist liberal account, which emphasizes the tension between the value of autonomous individuals pursuing privately determined goals and the need for effective cooperation in pursuit of broadly shared collective interests; and a reform liberal account, which emphasizes the interpretation of constitutional norms in terms of a tension between holding individuals to appropriate moral standards and a social obligation to ensure that every person has an opportunity to develop his or her faculties.4 In doing so, Greenstone accepts the Hartzian analysis while transforming Hartz's static unitary model into a dynamic one. Thus, political debate over constitutional principles based on the acceptance or rejection of reform and humanist liberal values is at the core of constitutional change. The lack of organized class antagonisms in the United States commends us to view or conceptualize issues of rights in self-development terms, not in terms of social justice with regard to the fruits of capitalism. Therefore, constitutional issues are critical because we must frame rights not simply in terms of outcomes, but in terms of the delivery of goods and services so that self-development can occur. Framing issues in this way requires us to ask what the individual is doing to "qualify" for government support in terms of his or her own acts of self-development. The Constitution and the legal norms of our constitutional regime are not self-enforcing; they are played out in the life of legal and political institutions. Greenstone writes, "To talk about operative constitutions is to talk about certain socially accepted and culturally significant rules—whether or not they are formally part of the written document. In the American context, such rules limit political life, and also help pattern both its conflictual and consensual features."5 Therefore, within and among legal and political institutions conflicting features of American political culture are meaningful. Moreover, the relationship of history to political culture constitutes a crucial force for change. In the United States, liberalism functions as a boundary condition—as a set of relatively permanent features in a particular context that informs causal relationships. As a boundary condition it has both behavioral and ideological elements; moreover, it must be explanatory in the sense that it describes those operative rules (standards of correct performance) that define the regime. Of the three conflicting accounts of the liberal regime, republican, humanist liberal, and reform liberal, republicanism has gained a renewed influence among constitutional scholars. It argues for an independent, virtuous, and participatory citizenry uplifted by labor, virtue, and a devotion to the general good...