A Challenge for Legal Liberalism

Ian Bassin*

The launch of the Harvard Law & Policy Review presents us with both an opportunity and a challenge. The opportunity is to articulate and critique the principles that for too long have been buried in that knowing look, that unspoken understanding. The challenge is to not let HLPRbecome yet another liberal echo chamber.

Ask a group of self-described liberal law students to articulate what they stand for and you’re likely to get either rambling, incoherent replies or blank stares. Those who do answer may touch upon issues ranging from equality to opportunity to reproductive freedom, but are unlikely to be able to unite these ideas under any consistent philosophical framework. Those who have a philosophical framework are lucky if they can explain it in less than 30,000 words.

The single greatest problem of contemporary legal liberalism is that too many of us are at a loss for words to describe what we stand for. One irony is that our past success may be to blame for this current failure. Many of us grew up in such liberal atmospheres that we were never challenged to defend liberal principles or to even grapple with the difficult questions at their core. As American society has polarized over the last generation—mine is the first for whom red and blue are defining traits—more of us have grown up in homogenous intellectual spheres. Instead of having our peers challenge our ideas, we play yes men to ourselves, nodding in agreement on what we believe without ever having to utter a definitive phrase.

At least, this has been my own experience. I grew up in New York City, attended a liberal high school, and then moved on to a liberal arts college in New England. But even those in red states grew up in a more liberal world than their parents. For the many liberals who grew up in such circumstances, it was easy to maintain the hold on our beliefs without ever having to explore them, explain them or defend them. We could just invoke our shared principles by casting at each other a knowing look. A facial expression of agreement and acknowledgement stood in for disciplined discourse.

Compare this with what a conservative at many of today’s left-leaning law schools must experience. In most of her classes, the only conservative voice she hears is her own. In order to cling to her beliefs, she must defend them tenaciously with both friend and foe. Confronted with a chorus of opposing arguments, her education is an intellectual boot camp. She’s been tested, her positions forged in fire, and she’s emerged a refined soldier for her cause. The liberal, on the other hand, has spent his period of intellectual maturation on the couch so to speak. Every once in a while either throwing or receiving that knowing look, but never having to exert too much effort to get it right. While the conservative emerges muscular and defined, the liberal is paunchy and a bit slow.

Short of stockpiling our law schools with more conservatives to challenge us, what is to be done? This is where ACS comes in. Even in predominantly liberal law schools, just because a first year Constitutional Law class may be taught by a professor with a liberal bent doesn’t mean the students emerge able to defend liberal constitutional positions. One can be taughtLawrence with sympathy or Morrison with disdain and not develop for oneself a firm understanding of why one result might be desirable and the other wrongly decided. A forum must be provided outside of class, as a supplement to the core curriculum, to give students a chance to delve deeper into these questions and to hone their own views. We have tried to make ACS into that space at Yale. We have not yet fully succeeded, but I am confident we are well on our way.

The problem is not limited to students, though. Faculty are often isolated in liberal echo chambers as well. At Yale in particular, where conservative faculty members are rarer than a two dollar bill, opportunities for liberal faculty to bounce their ideas off of hostile counterparts casually over the course of a day must be hard to come by.

Granted, much of this is changing. With Republican dominance in the political arena, the conservative cause has been ascendant for much of the past decade. This has forced liberals to work harder and has begun to alleviate some of the problems I point out in this letter. Yet the task is far from done.

The launch of this Journal presents us with both an opportunity and a challenge. The opportunity is to articulate and critique the principles that for too long have been buried in that knowing look, that unspoken understanding. The challenge is to prevent this Journal from becoming yet another liberal echo chamber. In composing a vision for a progressive future, we must force our authors and readers to test their arguments against our worthiest opponents, against the best competing visions. Finding our voice alone is not enough; we must make it sharp and penetrating, compelling and accessible. John Stuart Mill wrote that “[t]he beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded.” I hope this Journal puts our beliefs to that test and that in doing so we perfect our reply. I am confident that when we do, our progressive vision will prove lasting and true, and stronger for it.

* Ian Bassin is a former president of the Yale Law School student chapter of the American Constitution Society.

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