The Strange Career of Legal Liberalism.
New Haven and London: Yale University Press, 1996. viii + 375 pp. Notes
and index. $42.50 (cloth), ISBN 0-300-06369-5 .
Gaspare J. Saladino , University of Wisconsin-Madison.
Liberalism in Crisis
Laura Kalman, a professor of history at the University of
California-Santa Barbara and a lawyer, has produced a well-crafted history
of legal liberalism, the belief that courts can promote widespread social
reforms. With insight, erudition, balance, humor, and even drama, Kalman
traces the career of legal liberalism for the last six decades,
chronicling its highs and lows, twists and turns, strengths and
weaknesses, achievements and failures.
Her book tells the following story: Legal liberals, allied
with political liberals, attained their greatest influence during the
1960s, when a liberal-activist Warren Court wrought a constitutional
revolution. The Court relied on their writings, and legal liberals
dominated the law schools. But all was not well. Legal liberals had to
defend the Warren Court against charges that its decisions were counter-majoritarian
and not well-grounded in legal principles, and the encompassing charge
that judicial review, whether practiced for good outcomes or bad, was
anti-democratic. A few years after Earl Warren resigned in 1969, the
Supreme Court, though still activist, became increasingly more
conservative, prompting legal liberals to turn to other disciplines,
especially history, to revive legal and political liberalism. They pursued
these inquiries in attempts to reconcile judicial review with democracy
and to construct paradigms buttressing liberal jurisprudence. Their
excursions into other realms were not always welcomed by scholars intent
on protecting their turf, however.
Kalman's book is divided into two parts. Preceded by a
prologue, the five chapters of the first part offer an "intellectual
history of legal liberalism" (p. 9), identifying and defining several
legal theories and scholarly fashions and describing legal liberalism's
use or abuse of them. With abandon, legal liberals experimented with and
discarded scholarly fads. Some scholars criticized their efforts; others
supported them. The right and left buffeted them. A few "legal liberals"
redefined themselves; others incorporated their critics' reasoning and
methodology. Nor were they immune from internecine disputes.
To tell this story, Kalman has immersed herself in the
literature of law, history, sociology, anthropology, political theory,
political science, literary criticism, and philosophy. She begins tracking
the course of legal liberalism within the intellectual history of American
legal scholarship with the legal realists of the 1920s and 1930s and then
considers the process theorists of the 1940s and 1950s, who reacted
against them. Rejecting classical legal theory, those who called
themselves legal realists--the principal progenitors of legal
liberalism--espoused a humane and enlightened jurisprudence based more on
experience and social reality than what they deemed stale and arbitrary
logic. They borrowed from the social sciences to make law an instrument of
social policy, and they deemed the Constitution to be a living document.
Turning away from what they saw as the excesses of legal realism, scholars
of the legal process school favored a jurisprudence governed by neutral
legal principles and an overarching respect for law, not by a judge's
experiences or social views. Kalman then moves with panache through the
dizzying spectrum of legal liberals' intellectual experiments, which she
sums up by the word "interdisciplinarity" (p. 110)--including the "law
and" movement; pragmatic pluralism ("consensus"); interpretivism; critical
legal studies; post modernism ("theory"); hermeneutics; deconstructionism;
originalism; and neopragmatism.
By 1980 legal liberalism and the law schools were in
turmoil, largely precipitated by the siren call of interdisciplinarity (p.
356). Law as a scholarly discipline lacked a sense of community, a
consensus. This lack of shared values and goals became more acute as they
faced a new intellectual challenge: a conservative jurisprudential
counter-revolution was in the ascendant, with originalism as its core
doctrine. Originalism invoked the Founding Fathers, who were still revered
by judges, lawyers, and most Americans; because it claimed to be
majoritarian, it promised to restrain judges, thereby negating the notion
the Constitution was a living document whose development lay in judges'
hands. The individual ethic of rights, cherished by legal liberals, was
giving ground to the role of community and the vision of the common good.
By 1985, legal liberalism "appeared dead, a historical relic." "Almost
precisely as this point," states Kalman, "history came to the rescue" (p.
To redeem itself, legal liberalism had to develop
alternative interpretations of the Founding era. Therefore, legal liberals
turned to political theory and to history, in particular the
constellations of ideas and doctrines known as communitarianism and civic
republicanism. Having first absorbed communitarianism from political
theorists, they had to locate its historical roots; to discover them, they
had to demonstrate the Founding Fathers' devotion to civic republicanism.
In this quest, they found most attractive the work of the intellectual
historian J.G.A. Pocock. As Kalman notes, Pocock dubbed the Founding
Fathers "the culminating generation of civic humanists and classical
republicans" (p. 151); his republicanism, she declares, "bespoke
commitment to common interest, civic virtue, responsibility, community
values, deliberative democracy, and self-determination" (p. 154). With
Pocock as their muse, legal liberals integrated virtue with jurisprudence
and converted republicanism into "a law-centered paradigm" (p. 154). Since
republicanism did not perceive democracy primarily as majority rule, it
deflected the counter-majoritarian argument against judicial review. The
republican synthesis also promised to create a consensus in the polarized
legal academy, thereby restoring Warren Court liberalism and "provid[ing]
progressives with even more than they had received from the Warren Court"
The second part of Kalman's book, comprising two chapters
and an epilogue, describes the response of historians to the legal
academy's "republican revival" and to lawyers' invasion of their
territory. Conflict was inevitable. As advocates, lawyers use data and
interpretations to resolve modern legal problems; historians use them to
study the past. Most historians reject presentism; to lawyers, it is a
virtue, perhaps even a necessity. Historians "favor context, change, and
explanation"; lawyers "value text, continuity, and prescription" (p. 180).
Lawyers embrace bright-line paradigms; historians delight in discovering
the past's complexity. Lawyers insist on uncovering a true interpretation
of the Constitution; historians are skeptical about finding or even
pursuing a single interpretation. In short, lawyers and historians have
engaged in a "dialogue of the deaf" (p. 171).
The dialogue between the two disciplines would improve,
asserts Kalman, if each better understood and accepted the other's role.
Lawyers must respect and appreciate differing historical interpretations
and their complexities. Historians must understand that as advocates
lawyers might be hamstrung advancing subtle and intricate arguments.
Lawyers can use history for public purposes and still retain its accuracy
and integrity. Historians can align themselves with lawyers in good public
causes, but, upon entering the legal arena, they should play by lawyers'
Kalman encourages academic lawyers to venture beyond the
legal academy--expressly into the realm of history--to uncover non-legal
sources of authority that can enrich legal discourse and neutralize
conservative originalism and the counter-majoritarian argument, neither of
which will disappear. She does not, however, want lawyers to abandon their
quest for original meanings in the Constitution because historians have
recognized the inevitability of originalism in constitutional
interpretation and are trying to develop a more nuanced, palatable
originalism. Kalman cautions legal scholars to use moderation when
exploiting the tools of other disciplines. She recommends several spheres
of activity and analysis--for example, doing public history and devising
such new traditions of constitutional thought as neo-republcanism and
neo-Federalism--in which lawyers can cooperate with historians, bridging
the gap between historians' and lawyers' history. The failure of lawyers
to practice interdisciplinarity now would be unfortunate, she notes,
because historians and others are showing "signs of appreciating what
legal scholars are doing, and wanting to help" (p. 246).
Kalman has much to teach lawyers and historians about
themselves, one another, and the relationship between their professions.
As she is well aware, the differing approaches of the two disciplines make
it difficult for them to come together. Kalman gives much evidence of the
benefits that academic lawyers have derived from history and other
disciplines, but she is less forthcoming about what historians and others
have learned from lawyers. Furthermore, except for her liberal zeal, she
does not give historians sufficient reasons for joining with lawyers. Her
efforts may be doomed. Historians are a self-assured lot, obsessed with
their territorial rights. Many historians believe that interlopers only
distort or misrepresent their work, or lack the training needed to fathom
the past's mysteries. Kalman recognizes these conceits, but is too gentle
with historians. She is not candid enough in illustrating the intolerance
that some historians direct against interpretations that they deem
disagreeable. These scholars forget that "in [their] Father's house are
The depth of Kalman's interdisciplinary reading and her
command of this diverse, often difficult literature are dazzling. Even
specialists will profit from her formidable bibliographic expertise,
displayed in 114 pages of densely printed endnotes. She has mined several
key manuscript collections, such as the papers of Felix Frankfurther
(process theorist), Alexander Bickel (majoritarian paradigmist), and Raoul
Berger (originalist), and her endnotes are filled with nuggets from them.
In fact, her endnotes are sometimes more engaging and inspiring than her
text. Of special value to academic lawyers are the digressive but relevant
endnotes--models of condensation--that review varying historical
interpretations. Kalman's index does not do justice to the "embarrassment
of riches" flourishing in her endnotes. Even a selected bibliography would
have been manna from heaven.
Kalman also is a skilled guide to the "isms" that pepper
the intellectual history of legal academia and thus litter her pages. She
presents useful definitions of these "isms," usually quoting scholars in
their own disciplines. I wish, however, that Kalman had used her own lucid
voice more often. Her approach is valid; her commendable fair-mindedness
allows specialists to define their own fields, but the end product is a
sometimes intimidating mix of voices. Matters are further complicated
because readers occasionally must refer to her endnotes for clarification.
Although Kalman's study is balanced, she openly exhibits
her mission-driven liberalism and her discomfort with the process
theorists' control of the Court and with conservative successes in the
1994 congressional elections. Because she is attached to rights-based
liberalism, for example, she salutes Zechariah Chafee for following
Plato's example of the "noble lie" (p. 170) in defending freedom of
speech, forgetting even a noble lie damns credibility.
Although some historians and legal liberals excoriate
originalism, the pragmatic Kalman accepts originalism, which she predicts
"may prove [to be] a useful fiction" (p. 8). Such a statement seems
strange coming from an historian. But, then, her faith in American
liberalism, which for her contains "the right amounts of self-interest and
self-sacrifice, idealism and realism" (p. 231), propels her toward a
revival of a liberal jurisprudence. Such zeal will probably take
like-minded academic lawyers down the same path, rendering cooperation
with historians--especially those professing principles of objectivity and
seeking to avoid presentmindedness--problematic.
These minor criticisms, aside, The Strange Career of
Legal Liberalism is a superb guide to the history of American legal
scholarship and liberalism and the attempts to ameliorate them through
interdisciplinarity. Kalman's deft portrayal of the imposing history of
historical scholarship and American ideas, the scholarly fads that have
swept academia, and the adventurous interdisciplinary play of historical
and legal scholarship, are particularly valuable facets of her study. Both
historians and legal scholars will profit from this book, even if they
disregard its eloquent and heartfelt plea for civility, collegiality, and
Library of Congress
Call Number: KF4552 .K35 1996
* United States -- Constitutional law -- Philosophy
* Constitutional law -- United States
* Liberalism -- United States -- History -- 20th century
* Law -- United States -- Methodology -- History
Citation: Gaspare J. Saladino . "Review of Laura Kalman,
The Strange Career of Legal Liberalism," H-Law, H-Net Reviews, July, 1997.
“This is a rewarding and insightful book that seeks to explain where,
intellectually and politically, contemporary liberal legal academics stand
and how they got there… It will be essential reading for anyone interested
in the intellectual history of the contemporary law teaching profession or
the perplexing interplay between law and history that original intent
constitutionalism inspired in the 1980’s.”
Edward A. Purcell, Jr.,
review of The Strange Career of Legal Liberalism, by Laura Kalman,
The American Historical Review 102 (October 1997): 1264-1265.