DOCSLIB.ORG

The Puzzle of Social Movements in American Legal Theory Scott L

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Puzzle of Social Movements in American Legal Theory Scott L The Puzzle of Social Movements in American Legal Theory EVIEW R Scott L. Cummings ABSTRACT LA LAW LA LAW UC In one of the most striking developments in American legal scholarship over the past quarter century, social movements have become central to the study of law. In constitutional theory, movements have emerged as key drivers of legal reform, creating new constitutional ideals and minimizing concerns of activist courts overriding the majority will. In lawyering theory, movements have appeared as mobilized clients in the pursuit of social change, leading political struggle and shifting attention away from concerns about activist lawyers dominating marginalized groups. In a surprising turnabout, social movements—long ignored by legal academics—have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this dramatic new role is the central inquiry of this Article. To answer it, the Article provides an original account of progressive legal theory that reveals how the rise of social movements is a current response to an age-old problem: harnessing law as a force for social change within American democracy while still maintaining a distinction between law and politics. AUTHOR Robert Henigson Professor of Legal Ethics and Professor of Law, UCLA School of Law. For invaluable feedback on this project, I am grateful to Richard Abel, Catherine Albiston, Anthony Alfieri, Sameer Ashar, Leo Beletsky, Devon Carbado, Paola Cecchi Dimeglio, Rashmi Dyal-Chand, Ingrid Eagly, Steve Ellman, Nora Engstrom, Peter Enrich, Laurel Fletcher, Jody Freeman, Duncan Kennedy, Máximo Langer, Frank Munger, Sasha Natapoff, Doug NeJaime, Pricilla Ocen, Russell Pearce, Nick Robinson, James Rowan, Ben Sachs, Chris Schmidt, Jeff Selbin, Bill Simon, David Trubek, Louise Trubek, Michael Waterstone, Lucie White, David Wilkins, and Noah Zatz. I also benefitted enormously from presenting versions of this work at the Berkeley Center for the Study of Law and Society, the Legal Ethics Schmooze at Stanford Law School, the Legal Ethics Scholars’ Roundtable at Fordham Law School, the New Legal Realism 10th Anniversary Conference at the UC Irvine School of Law, the Turning Points in Social Movements conference at the Indiana Mauer School of Law, the New York Law School Faculty Colloquium, the Northeastern School of Law Faculty Colloquium, and the UCLA School of Law Faculty Colloquium. And I could not have done it all without the superb research assistance of Tyler Anderson, Julia Nick, and Alyssa Titche, as well as the support of the Harvard Law School and the UCLA School of Law administration and staff, especially Elyse Meyers and Jamie Libonate. 64 UCLA L. REV. 1552 (2017) TABLE OF CONTENts Introduction...........................................................................................................1554 I. Framing the Law-Politics Problem in Legal Theory ...........................1558 II. The Rise and Fall of Legal Liberalism ....................................................1560 A. Legal Realism: Avoiding the Tension......................................................1561 1. Dominant Strain: Class and Independence ...................................1563 2. Recessive Strain: Race and Representation ....................................1570 B. Legal Liberalism: Defining the Problems ...............................................1577 1. The Countermajoritarian Problem .................................................1578 2. The Professionalism Problem .........................................................1581 C. Critical Legalism: Contesting Law’s Neutrality ......................................1586 1. The Critique of Legal Neutrality: Constitutional Rights in Adjudication ............................................................................................1588 a. Defense ..................................................................................1589 b. Critique .................................................................................1591 c. Response ................................................................................1598 2. The Critique of Lawyer Neutrality: Client Autonomy in Representation .........................................................................................1603 a. Defense ..................................................................................1604 b. Critique .................................................................................1610 c. Response ................................................................................1614 D. Pragmatic Legalism: Rebuilding Law From the Bottom-Up .................1626 1. Decentering Courts in Constitutional Theory ...............................1628 2. Decentering Lawyers in Professional Theory .................................1632 III. The Legacy of Legal Liberalism: Before Social Movements in Law .1642 A. Foundational Critiques ............................................................................1643 B. Disciplinary Divisions .............................................................................1648 C. Progressive Discord .................................................................................1651 Conclusion ..............................................................................................................1657 1553 1554 64 UCLA L. REV. 1552 (2017) INTRODUCTION This Article is about a central puzzle of contemporary American legal scholarship: the dramatic rise of social movements as key actors in legal theory.1 In the past fifteen years, references to social movements in U.S. legal periodicals have more than quadrupled in absolute terms and doubled in percentage terms over the preceding fifteen-year period.2 Perhaps even more significantly, social movements have become critical to the work of prominent scholars in fields at the heart of American legal theory, where they have emerged as key drivers of legal change.3 This is a surprising turnabout for social movements, which as empirical phenomena were more prominent in the 1960s and, as objects of scholarly study, have long occupied a marginal position in social science and have been largely ignored by legal academics. Yet, a half century after the zenith of social movements in American politics,4 they have now achieved a privileged position in legal scholarship as engines of progressive transformation. Why social movements have come to play this impressive new role—and what it means for legal theory and practice—is the central inquiry of this Article. 1. See, e.g., Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 U. PA. L. REV. 1, 1–2 (2001). 2. Based on a search in Westlaw Classic, from 2000 to 2015, there were 7850 articles in Westlaw’s Law Reviews & Journals database containing the search term “social/2 movement,” up from 1893 articles from 1985 to 2000; during the same periods, the number of total articles in the database grew from 205,401 to 402,421. There has been a similar increase of interest in social movements in sociology. See David A. Snow, Sarah A. Soule & Hanspeter Kriesi, Mapping the Terrain, in THE BLACKWELL COMPANION TO SOCIAL MOVEMENTS 3, 5 (David A. Snow, Sarah A. Soule & Hanspeter Kriesi eds., 2004) (noting the increase of social movement articles in the top four sociology journals between the 1950s and 1990s). 3. See, e.g., Sameer M. Ashar, Public Interest Lawyers and Resistance Movements, 95 CALIF. L. REV. 1879 (2007); Jack M. Balkin, Brown, Social Movements, and Social Change, in CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE 246 (Robert L. Hayman Jr. & Leland Ware eds., 2009); Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436 (2005); Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 BERKELEY J. EMP. & LAB. L. 1 (2009); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. PA. L. REV. 419 (2001); Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 YALE L.J. 2028 (2011); Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 YALE L.J. 2740 (2014); Douglas NeJaime, Winning Through Losing, 96 IOWA L. REV. 941 (2011); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006). 4. It was just over fifty years ago that Martin Luther King, Jr. led civil rights protestors across the Pettus Bridge in Selma, see TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS, 1963–65 (1998), one of the symbolic highpoints of the civil rights movement captured in the recent movie SELMA (Paramount Pictures 2014). The Puzzle of Social Movements 1555 To answer it, the Article claims that the social movement turn in legal scholarship can only be understood as the current version of an intense and long- standing historical debate over the appropriate role of law and lawyers in democratic social change. Although this debate crosses ideological lines, it has been most pronounced and controversial within progressive legal scholarship,5 which has divided over the relation between law and transformative politics since the civil rights period.6 The key contribution of this Article is to recover this critical intellectual history in order to explain how the
Load more

Recommended publications
  • The Early Years of First Amendment Lochnerism
    COLUMBIA LAW REVIEW VOL. 116 DECEMBER 2016 NO. 8 ARTICLES THE EARLY YEARS OF FIRST AMENDMENT LOCHNERISM Jeremy K. Kessler* From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First *. Associate Professor and Milton Handler Fellow, Columbia Law School. FoR conversation and counsel along the way,
    [Show full text]
  • The American Liberty League and the Rise of Constitutional Nationalism Jared Goldstein Roger Williams University School of Law
    Roger Williams University DOCS@RWU Law Faculty Scholarship Law Faculty Scholarship Winter 2014 The American Liberty League and the Rise of Constitutional Nationalism Jared Goldstein Roger Williams University School of Law Follow this and additional works at: https://docs.rwu.edu/law_fac_fs Part of the Constitutional Law Commons, and the Law and Politics Commons Recommended Citation Jared A. Goldstein, The American Liberty League and the Rise of Constitutional Nationalism, 86 Temp. L. Rev. 287, 330 (2014) This Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact [email protected]. +(,121/,1( Citation: Jared A. Goldstein, The American Liberty League and the Rise of Constitutional Nationalism, 86 Temp. L. Rev. 287, 330 (2014) Provided by: Roger Williams University School of Law Library Content downloaded/printed from HeinOnline Thu Nov 16 15:40:33 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device THE AMERICAN LIBERTY LEAGUE AND THE RISE OF CONSTITUTIONAL NATIONALISM JaredA. Goldstein* This Article launches a project to identify constitutional nationalism-the conviction that the nation'sfundamentalvalues are embodied in the Constitution-as a recurring phenomenon in American public life that has profoundly affected both popular and elite understandingof the Constitution.
    [Show full text]
  • (Prexy) Nesbitt Anti-Apartheid Collection College Archives & Special Collections
    Columbia College Chicago Digital Commons @ Columbia College Chicago Finding Aids College Archives & Special Collections 9-1-2017 Guide to the Rozell (Prexy) Nesbitt Anti-Apartheid Collection College Archives & Special Collections Follow this and additional works at: http://digitalcommons.colum.edu/casc_fa Part of the History Commons Recommended Citation "Rozell (Prexy) Nesbitt oC llection," 2017. Finding aid at the College Archives & Special Collections of Columbia College Chicago, Chicago, IL. http://digitalcommons.colum.edu/casc_fa/26/ This Article is brought to you for free and open access by the College Archives & Special Collections at Digital Commons @ Columbia College Chicago. It has been accepted for inclusion in Finding Aids by an authorized administrator of Digital Commons @ Columbia College Chicago. Rozell (Prexy) Nesbitt Collection This finding aid was produced using ArchivesSpace on September 01, 2017. eng Describing Archives: A Content Standard College Archives & Special Collections at Columbia College Chicago Chicago, IL [email protected] URL: http://www.colum.edu/archives Rozell (Prexy) Nesbitt Collection Table of Contents Summary Information .................................................................................................................................... 4 Biography ....................................................................................................................................................... 5 About the Collection .....................................................................................................................................
    [Show full text]
  • American Civil Associations and the Growth of American Government: an Appraisal of Alexis De Tocqueville’S Democracy in America (1835-1840) Applied to Franklin D
    City University of New York (CUNY) CUNY Academic Works All Dissertations, Theses, and Capstone Projects Dissertations, Theses, and Capstone Projects 2-2017 American Civil Associations and the Growth of American Government: An Appraisal of Alexis de Tocqueville’s Democracy in America (1835-1840) Applied to Franklin D. Roosevelt's New Deal and the Post-World War II Welfare State John P. Varacalli The Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/1828 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] AMERICAN CIVIL ASSOCIATIONS AND THE GROWTH OF AMERICAN GOVERNMENT: AN APPRAISAL OF ALEXIS DE TOCQUEVILLE’S DEMOCRACY IN AMERICA (1835- 1840) APPLIED TO FRANKLIN D. ROOSEVELT’S NEW DEAL AND THE POST-WORLD WAR II WELFARE STATE by JOHN P. VARACALLI A master’s thesis submitted to the Graduate Program in Liberal Studies in partial fulfillment of the requirements for the degree of Master of Arts, The City University of New York 2017 © 2017 JOHN P. VARACALLI All Rights Reserved ii American Civil Associations and the Growth of American Government: An Appraisal of Alexis de Tocqueville’s Democracy in America (1835-1840) Applied to Franklin D. Roosevelt’s New Deal and the Post World War II Welfare State by John P. Varacalli The manuscript has been read and accepted for the Graduate Faculty in Liberal Studies in satisfaction of the thesis requirement for the degree of Master of Arts ______________________ __________________________________________ Date David Gordon Thesis Advisor ______________________ __________________________________________ Date Elizabeth Macaulay-Lewis Acting Executive Officer THE CITY UNIVERSITY OF NEW YORK iii ABSTRACT American Civil Associations and the Growth of American Government: An Appraisal of Alexis de Tocqueville’s Democracy in America (1835-1840) Applied to Franklin D.
    [Show full text]
  • Research Paper Series No 2016/23
    University of Edinburgh School of Law Research Paper Series No 2016/23 Constitution-making and Political Settlements in Times of Transition Christine Bell Professor of Constitutional Law - University of Edinburgh, School of Law [email protected] Charmaine Rodrigues PhD candidate at the University of Melbourne Law School. Silvia Suteu Lecturer in Public Law - University College London Faculty of Laws - [email protected] Tom Gerald Daly Edinburgh Centre for Constitutional Law Jenna Sapiano University of St Andrews - [email protected] To appear in: Global Constitutionalism, special section, forthcoming 2017. This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s). If cited or quoted, reference should be made to the name(s) of the author(s), the title, the number, and the working paper series © 2016 Christine Bell, Charmaine Rodrigues, Silvia Suteu, Tom Gerald Daly and Jenna Sapiano Edinburgh School of Law Research Paper Series University of Edinburgh Abstract This special section is an output of the Political Settlement Research Programme – PSRP (www.politicalsettlements.org). The PSRP examines how to use peace processes to create inclusive and open political settlements. This special issue addresses in particular constitution-making and political settlements in times of transition. We consider how constitutional design and adjudication must be understood to have a specific political role in constructing and enabling a political settlement, as in the shared understandings as to how power is to be held and exercised, that forms the political constitution which the constitution attempts to institutionalised.
    [Show full text]
  • SUBJECT FILES, 1933-1964 153 Linear Feet, 2 Linear Inches (350 LGA-S Boxes) Herbert Hoover Presidential Library
    Stanford HERBERT HOOVER PAPERS POST PRESIDENTIAL SUBJECT FILES, 1933-1964 153 linear feet, 2 linear inches (350 LGA-S boxes) Herbert Hoover Presidential Library FOLDER LIST Box Contents 1 A General (5 folders) Academy of American Poets, 1934-1959 Academy of Motion Picture Arts & Sciences, Hoover tribute to Ethel Barrymore, 1949 Acheson, Secretary of State Dean - Clippings, 1945-1951 Adams, John – letter to his son, Dec 17, 1800 (reproduction) Advertising Club of New York, 1939-1963 Advertising Council, 1961 Advertising Gold Medal Award of Printers' Ink Publishing Company, 1960-1963 Africa, 1957-1963 African-American Institute, 1958 2 Agricultural Hall of Fame, 1959 Agriculture General, 1934-1953 California Farm Debt Adjustment Committee, 1934-1935 Clippings, 1933-1936 (7 folders) 3 Clippings, 1936-1958, undated (7 folders) Comments and Suggestions, 1933-1935 (3 folders) 4 Comments and Suggestions, 1936-1951, undated (5 folders) Congressional Record, House and Senate Bills, 1917, 1933-1937, 1942-1943 Commodities Cotton, 1934-1943 Wheat, 1933-1943 Farmers' Independence Council of America, 1935-1936 International, 1933-1934 5 Printed Matter, 1934-1953 and undated (2 folders) Statistics, 1940-1944 Agriculture Department Agricultural Adjustment Administration (AAA) Expenditures for 1935 by state, 1936 Printed Material 1933-1941 (2 folders) Bureau of Agricultural Economics Agricultural Finance Review, 1942-1944 6 Agricultural Prices, 1943-1945 (3 folders) Agricultural Situation, 1943-1946 Cotton Situation, 1943 Crop Production, 1942-1946 (4
    [Show full text]
  • Congressional Overspeech
    ARTICLES CONGRESSIONAL OVERSPEECH Josh Chafetz* Political theater. Spectacle. Circus. Reality show. We are constantly told that, whatever good congressional oversight is, it certainly is not those things. Observers and participants across the ideological and partisan spectrums use those descriptions as pejorative attempts to delegitimize oversight conducted by their political opponents or as cautions to their own allies of what is to be avoided. Real oversight, on this consensus view, is about fact-finding, not about performing for an audience. As a result, when oversight is done right, it is both civil and consensus-building. While plenty of oversight activity does indeed involve bipartisan attempts to collect information and use that information to craft policy, this Article seeks to excavate and theorize a different way of using oversight tools, a way that focuses primarily on their use as a mechanism of public communication. I refer to such uses as congressional overspeech. After briefly describing the authority, tools and methods, and consensus understanding of oversight in Part I, this Article turns to an analysis of overspeech in Part II. The three central features of overspeech are its communicativity, its performativity, and its divisiveness, and each of these is analyzed in some detail. Finally, Part III offers two detailed case studies of overspeech: the Senate Munitions Inquiry of the mid-1930s and the McCarthy and Army-McCarthy Hearings of the early 1950s. These case studies not only demonstrate the dynamics of overspeech in action but also illustrate that overspeech is both continuous across and adaptive to different media environments. Moreover, the case studies illustrate that overspeech can be used in the service of normatively good, normatively bad, and * Professor of Law, Georgetown University Law Center.
    [Show full text]
  • Locked Down: the Hidden History of the Prisoners' Rights Movement
    Locked Down: The Hidden History of the Prisoners’ Rights Movement Tiana Alexandria Williams* Mentor: Dr. Jesse Drew Department of Cinema and Digital Media, UC Davis Abstract In recent years, there has been an increasing discourse centered on the prison-industrial complex, addressing issues that range from ending the school-to-prison pipeline to calls for the abolition of prisons entirely. However, this movement is far from a novelty, rather, it is the resurgence of a forgotten moment in history that is being revitalized by a new generation. In order to understand the recent development of the anti- incarceration movement, it is important to provide context to these current conversations and ensure that the contributions of the prisoner’s rights movement are properly understood. Through the uncovering and analysis of archival materials, collections of recorded oral histories and published prison letters, this paper illustrates how prisoner activism of the 1970s brought the plight of prisoners into the limelight, while also leading to increased systemic repression and a debilitating historical declension narrative. By highlighting this history of prisoner activism, this paper challenges the declension hypothesis approach to the prisoners’ rights movement and investigates the movement’s effects on the current day structure of the criminal justice system. Introduction The prisoners’ rights movement is an undermentioned and understudied movement that grew for decades in the United States, finally reaching maximum visibility in the early 1970s. The dominant narrative surrounding the movement can be traced as: The American prison system was cruel, inhumane and unjust. Prisoners fought for better conditions and rights, using similar rhetoric to that of the Civil Rights Movement.
    [Show full text]
  • Defending China's Right to Self-Determination: Confronting
    Date: Thursday, May 25, 2000 1:01 :37 PM From: GOv1AR Subj: Fwd: FW: Defending China's Right to Self-Determination - Eric Mann To: pamelachiang@ hotmail.com, wendallchin@ hotmail.com, lchow@ seiu250.org, rfong @ccsf.cc.ca.us, say he @yahoo.com, clemlai@ socrates.berkeley.edu, julialau@ hotmail.com, edlee@ surfree.com, sun lee@ sirius.com, 0211 mliu@ umbsky.cc.umb.edu, Lydialowe, ericmar@ worldnet.att.net, Warrmar, rebeccapeng@ earthlink.net, mjsmith@ igc.apc.org, ptlee@ uclink4.berkeley.edu, davidtse @wco.com, o_tse@ hotmail.com, edwong @fdic.gov Forwarded Message: Forwarded Message: Date: Wednesday, May 24, 2000 10:07:50 PM From: adiaz@ igc.org Subj: FW: Defending China's Right to Self-Determination - Eric Mann From: adiaz@ igc.org (Antonio Dlaz) Antonio Dfaz Project Director People Organizing to Demand Environmental & Economic Rights (iPODER!) 474 Valencia Street #155 San Francisco, CA 94103 415-431-4210 (phone) 415-431-8525 (fax) [email protected] (email) From: Sid Shniad <[email protected]> To: [email protected] Subject: Defending China's Right to Self-Determination - Eric Mann Date: Wed, May 24, 2000, 12:26 PM Defending China's Right to Self-Determination: Confronting Imperialism, Racism, Chauvinism, and Anti-Communism in the United States by Eric Mann The current struggle over the People's Republic of China - granting or denying that nation "permanent normal" trade status with the U.S. and granting or denying it admission into the World Trade Organization - requires a strong intervention by those of us who see our work as building an anti-racist, anti-imperialist U.S. Left against U.S.
    [Show full text]
  • Enough Being Reasonable: Students for a Democratic Society (SDS)
    Enough Being Reasonable: Students for a Democratic Society (SDS) and Moral Absolutism’s Contribution to Democracy i A Thesis Presented By: Nicholas Haas To: The Department of Political Science at the University of Michigan in partial fulfillment of the requirements for the degree of Bachelor of Arts (Honors) April 2012 Abstract Political theory that addresses morality’s role in politics most often emphasizes the need for political actors who are moral compromisers. Politicians have a responsibility to serve the people, and they will sometimes be faced with a dilemma: either stick to their personal morals or violate those morals because the political office requires it; many political theorists insist that these politicians should do the latter. These theorists value consensus as a fundamental cornerstone of democracy, and they associate a willingness to sacrifice one’s personal morality for the greater good with a democratic ideology and mindset. They typically dismiss the potentially positive influence that moral absolutists, especially ones who are able to build public support and therefore power behind their causes, might have on a democracy. This thesis challenges theorists to consider potential democratic benefits of oppositional moral absolutists who ground their arguments in democratic rhetoric and principles. It pushes these theorists, then, to consider both how oppositional moral absolutists and how confrontation and conflict might serve democratic interests and society. The Students for a Democratic Society (SDS) movement of
    [Show full text]
  • Murray N. Rothbard: Mr. Libertarian
    Murray N. Rothbard: Mr. Libertarian di Wendy McElroy Murray N. Rothbard (1926-1995) – the greatest libertarian theorist of the 20th century – expressed what he considered to be the central political issue confronting mankind. He wrote, “My own basic perspective on the history of man...is to place central importance on the great conflict which is eternally waged between Liberty and Power.”1 Liberty v. Power. In its most blatant form, the struggle manifests itself as war between the peaceful, productive individual and the intrusive State that usurps those products. The tension between freedom and authority is hardly a new subject for political commentary. But Rothbard managed to bring a newness to everything he touched intellectually. Rothbard was a system builder. Unsatisfied with past attempts to present a “philosophy of freedom,” Rothbard sought to create an interdisciplinary system of thought that used the struggle between Liberty and Power as its integrating theme. He explained, “Strands and remnants of libertarian doctrines are, indeed, all around us. ... But only libertarianism takes these strands and remnants and integrates them into a mighty, logical, and consistent system.”2 Without such a systematic world view, he believed Liberty could not succeed. In forty-five years of scholarship and activism, Rothbard produced over two dozen books and thousands of articles that made sense of the world from a radical individualist perspective. In doing so, it is no exaggeration to say that Rothbard created the modern libertarian movement.3 Specifically, he refined and fused together: • natural law theory, using a basic Aristotelian or Randian approach; • the radical civil libertarianism of 19th century individualist-anarchists, especially Lysander Spooner and Benjamin Tucker; • the free market philosophy of Austrian economists, in particular Ludwig von Mises, into which he incorporated sweeping economic histories; and, • the foreign policy of the American Old Right – that is, isolationism.
    [Show full text]
  • Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching
    Review Essay Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching Mark A. Graber n 1983 Martin Shapiro worried that the “new juris- Recent developments in the public law subfield have prudence of values” being promoted by the new gener- confirmed some of these fears, while alleviating others. Iation of public law scholars in political science would Prominent scholars continue paying disproportionate atten- “serve as a cover for slipping back into playing ‘little law tion to American constitutional law as handed down by professor’ for undergraduates.”1 Proponents of the “juris- the Supreme Court of the United States. Twenty-nine of prudence of values” in political science, who engaged in the forty-two awards for scholarship given out since 1990 constitutional theorizing about individual rights and the by the Law and Courts section of the American Political structure of governing institutions, would “writ[e] con- Science Association have gone to works on the Supreme ventional case law doctrine” that “contain[ed] no distinc- Court or American constitutional law. This public law tive political analysis.” Worse, the fruits of the behavioral scholarship, however, speaks with political science voices. revolution might rot should normative concerns take cen- Both behavioral and humanistic scholars are developing ter stage in public law inquiry. Rather than further inte- distinctive empirical and normative insights into Ameri- grate the study of courts into mainstream political science, can constitutional law, theory, and politics. Their work public law scholars would spend their time telling Supreme makes connections between ongoing constitutionalist Court justices how to do their jobs. Shapiro predicted, themes and such traditional concerns of political science “[P]olitical scientists trained in the empirically oriented as political development, rational agency, comparative analy- ‘American politics’ field will be shoved to the edges of sis, political institutions, and political philosophy.
    [Show full text]