Abstract
The liberal consensus surrounding individual rights, rule of law, and tolerance for diversity that once characterized the American legal and political order is in peril. According to an ascendant, “post-fusionist” conservative critique, liberalism’s demise is the inevitable result of a failed philosophical system that fundamentally misunderstands the communal and teleological nature of meaning-making and identity formation. Sharing blame for liberalism’s downfall, according to post-fusionists, are both the right’s liberalism of individualism and the left’s liberalism of diversity. American society currently faces a double-sided dilemma, according to post-fusionists: (1) liberalism’s conception of the person has undermined meaning-making in traditional, natural (private) loci while (2) also leaving little, if any, space for considerations of the common good or meaning-making in the public sphere. As a result, liberal citizens are alienated, and liberal societies are listless. This Essay — Why Liberalism Persists: The Neglected Life of the Law in the Story of Liberalism’s Decline — demonstrates that the practices of liberalism — law especially — are much less vulnerable to the post-fusionist critique than the theories of liberalism that post-fusionists target. Drawing examples from America’s constitutional structure, recent legislative and constitutional developments, and contemporary corporate law, I show that law supports meaning-making, virtue, and the common good by securing the conditions for the exercise of individual conscience and associational autonomy in private sphere and by supporting norms and adopting policies that guarantee equal citizenship in the public realm. Recognizing the meaning-making capacities and functions of law, I argue, better enables those invested in the future of the liberal order — whether students, law teachers, legal professionals, or simply citizens — to defend the institutions that order our world.
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