Written by Tucker Culbertson
Professor Noah Feldman recently published a valuable op/ed in the The New York Times arguing that liberals are facing a constitutional crisis, one they cannot confront with conventional civil rights talk about liberty and equality:
“[N]ew and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality… The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.”
I am truly grateful for Feldman’s piece. In this reply, I want to do two things: 1) trouble his use of the terms liberal, progressive, and conservative; and 2) suggest that the current crisis he describes is only one reflection of issues which are endemic to, and which constitute the genuine tragedy of, political liberalism.
Titled “Imagining a Liberal Court”, Feldman opens by declaring that “progressive constitutional thought is reaching a crisis point.” Immediately, then, “liberal” and “progressive” seem synonymous. Later, though, Feldman describes and avows the particular progressivism of the New Deal era judiciary as a superior alternative to the liberal Courts of the past half-century. Presumably, then, a progressive Court is what Feldman’s hoping for, but in his opening – and throughout the piece – Feldman sometimes might seem to treat liberalism and progressivism as interchangeable.
Such slippage is understandable in the context of an op/ed for The Times. Feldman is using the language that gets used in pieces and papers like these. Public discourse on politics generally, and on judicial interpretation especially, sorely lacks meaningful distinctions. The binary distinction usually drawn between liberals and conservatives is based not on a coherent set of political principles, but rather on policy preferences across wide, at times unrelated, issues. Liberals are they who want some availability for abortion, some limitation on executive warmaking, and some provision of public services for poor people. Conservatives support the death penalty, like small government, and want public needs met by free markets.
Such definitions are surely senseless. Not only are they monolithic, failing to account for the internal diversity of supposed liberals and conservatives. They also are outcome-determinate. Political platforms should reflect principled, substantive ideas about governance and society which direct the process of, rather than describe the conclusions of, political contestation.
And then there are the progressives. For Feldman, it seems progressives are those whom liberals might and should become. But this term too requires content. To what are progressives progressing? How? And why? Lest progressivism become just another new oppositional cipher for conservatism, deeper explication and defense of this –ism must be offered.
Now let me turn to Feldman’s claim that we’re in a novel crisis caused by corporations’ unprecedented power and capacity for harm in contemporary U.S. capitalism. Again, Feldman argues that, “Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.” With this I must disagree. Structural economic questions have occupied civil rights constitutionalists since the Civil War. The Court, though, has made constitutional intervention against structural economic inequality nearly impossible.
Consider race. Courts’ refusals to engage – and their refusals to allow other government actors to engage – deep structural dimensions of racism have defined the Fourteenth Amendment’s development over the past hundred-something years. Mere years after the Fourteenth Amendment’s ratification, Congress attempted to reconstruct the slave societies of the former Confederacy. The Supreme Court promptly struck down Congress’s work in the Civil Rights Cases, declaring that constitutional rights and Congressional actions in pursuit thereof could only be brought to bear on public, not private, actors. Enter Jim Crow, upstage center.
Fast-forward to the present, where two rules hold sway regarding race and equal protection. First, equal protection only prohibits provably intentional racial discrimination, not aggregate, often unconscious, broadly social, deeply structural dimensions of racial inequality. Second, because equal protection requires colorblindness, governmental attempts explicitly to rectify the very racial inequalities just described are most always prohibited. They are prohibited because the individual rights of white persons not to be racialized trump the interests of both subordinated populations and the polity itself, which would benefit from greater racial equality.
This defense of the individual white person is much like that of the corporate person described by Feldman. The proscription of legislation aimed at private racial discrimination likewise resembles what Feldman describes regarding the deregulation of markets. All this is to say that the history of racial equal protection, like the present crisis of liberal constitutionalism called out by Feldman, both exhibit the hallmarks of liberalism itself – a deep commitment to the individual person, and a firm distinction between public and private matters. Contemporary legal scholars like Frances Olsen and Angela Harris among others have described and decried these fundamental – and fundamentally subordinating – dimensions of political liberalism in great detail. As did Karl Marx nearly two hundred years ago.
And so, as we encounter the evils of current U.S. capitalism described by Feldman, we do have resources to turn to. We also have an ugly fact to confront.
The features of Feldman’s liberal crisis are endemic to liberalism itself. They are part of the tragedy of liberalism: tragic literally, in that they maintain delusional hubristic faith in an autonomous individual imaginably separable from governance, community, and environment, despite the horrors such hubris brings.