Joseph William Singer*
At a time when conservative philosophy is ascendant in both political life and in jurisprudence, the American Constitution Society and the Harvard Law & Policy Review can help develop and promote a philosophy of law and a jurisprudence of the judicial role that validates and legitimizes legal rules and institutions that promote and spread the values of liberty, economic opportunity, and security, and do so without embarrassment or hesitation.
There was a time when progressives could confidently assert their belief in an activist government which represented the collective democratic will to alleviate suffering, combat poverty, spread wealth, ensure access to housing, education, health care and high paying jobs, to fight discrimination, promote free speech and the free exercise of religion, and, in the words of the United States Constitution, to “secure the blessings of liberty to ourselves and our posterity.”
This view of government was based on quintessentially American values. We have no titles of nobility here; rather we accept the idea that each person is “created equal,” that opportunity should be universal, that access to opportunity should be equal, that a free and democratic society is one that treats each person with equal concern and respect, that individuals have a right to freedom of conscience, speech, and association, and that our government is legitimate only if it is democratic, or “of the people, by the people, [and] for the people.”
This progressive view of the appropriate role of government was matched by a philosophy of law that saw both legislative and judicial decisions as involving value choices and policy considerations and asked judges forthrightly to interpret and shape law to meet current social needs and values while promoting desirable public policies and supporting legislative and executive action designed to promote the public interest. This jurisprudence also understood the United States Constitution to require respect for fundamental values as our understanding of those values matures over time; the living constitution requires us, for example, to reject the philosophy of “separate but equal” even though the Founding Fathers accepted that philosophy as the way of the world.
This set of beliefs was borne out of the Enlightenment trust in human reason, the scientific world view, and the belief in the importance of the individual. Moreover, it was supported by a philosophy that accords each person equal dignity while granting individuals autonomy and freedom of thought and religion, while basing government on the consent of the governed.
That time is no longer. Conservative philosophy is ascendant in both political life and in jurisprudence. A seemingly coherent worldview unites a commitment to liberty, small government, the free market, economic efficiency, strong protection for private property, and a judiciary marked by restraint and fidelity to both original intent and the text of controlling laws.
Law professors have made numerous critiques of both conservative political philosophy and jurisprudence. We have pointed out inconsistencies and contradictions in conservative positions. We have noted that libertarians are not anarchists; they favor a fair amount of government regulation but disguise it as protection of property rights or family values. This is a task that is never done; cognitive dissonance prevents all of us from seeing the inconsistencies in our own positions and it is surprisingly easy to succumb to hypocrisy. At the same time, some amount of inconsistency is inevitable in both political life and in the legal system itself; our goals are too many and too various to fit neatly into a logical pattern. Our fundamental values are likely to display internal tensions and ambiguities that will require mature and responsible human judgment in decision making. This is as true of progressives as it is of conservatives.
At the same time, it is important to recognize that prevailing understandings of the conservative worldview have the feel of coherence, despite the presence of internal inconsistencies and disagreements among conservative theorists, politicians, judges, lawyers, and legal scholars. The conservative creed focuses above all on the value of liberty. It then conceptualizes liberty as freedom from government regulation. When conservatives do support regulation and taxation, they defend it on the grounds that government is actually supporting liberty or protecting private property. Conservatives stand for small government, the free market, family values, and judicial restraint, and despite the inconsistency among these commitments, the concept of liberty is supple enough to stand for this worldview.
What is missing in our political and legal system is a similarly supple but coherent progressive philosophy of politics, economics, and law that can match and stand against the conservative vision. In contrast to the party of liberty, progressives need to promote a philosophy based on human dignity and democracy – a philosophy that emphasizes the importance of enabling each person to live a secure and happy life and to participate in both economic production and democratic government. If conservatives believe, for example, that property is important because it enables individuals to have a base from which they can exercise independence, establish a family, and enjoy the blessings of liberty, then progressives can agree that these things are indeed important, and that if they are important, they are important for every person. If that is so, then our economic and political institutions have failed if they allow poverty to persist or fail to remove roadblocks to equal economic opportunity.
As the preamble to the Constitution acknowledges, we established government precisely in order to “spread the blessings of liberty to ourselves and our posterity.” Government is not inimical to liberty; it is necessary for it. John Locke himself observed that liberty without law is meaningless, and a free market cannot exist without government regulation. Our children will not enjoy the blessings of liberty if we destroy the environment, for example. Liberty is meaningful only if we also exercise responsibility, both personal and collective. The question is how to regulate, not whether to regulate. If our goal is to ensure that each person can enjoy the blessings of liberty, then our philosophy must explain the democratic values of humanity, dignity, equality, community, responsibility and the common good. Nor are progressives averse to liberty; indeed, we care about it so much that we want the legal system to make it available to everyone, not just the privileged few.
The task for progressives is to articulate a philosophy of humanity and democracy that will enable us to reimagine and revitalize basic American values of liberty, equality, and property while making the free market work for everyone. For this to happen, we need a companion philosophy of law and a jurisprudence of the judicial role that validates and legitimizes legal rules and institutions that promote and spread the values of liberty, economic opportunity, and security, and to do without embarrassment or hesitation. This is a useful role that the American Constitution Society can play and a journal devoted to exploring and elaborating and criticizing these ideas is both welcome and sorely needed.