At this moment of inception, of course, the potential menace of individual rapacity and anarchy – alien concepts, other than theoretically -- were hardly considered. “[R]emove irrelevant political restraints from economic activity,” it was assumed, “and … the ‘natural system of liberty’ will become effective…. [with] the self-interest of each individual checked and balanced by that of every other individual, and, should that fail, an ‘enlightened’ self-interest which knows how to find the point of concurrence between the interests of self and those of the community will … supply the deficiency.” Bourgeois liberalism’s “serene confidence in the possibilities of social harmony” was derived both from the genuine achievements of a commercial culture -- that men could be brought most effectively into the vast system of mutual services in a complex society by engaging their ‘self-interest’ rather than their ‘benevolence’” -- and from the illusions natural to that culture. This new liberalism, however, “assume[d] a natural equilibrium of economic power in the community which historic facts refute.” Over time, “social realities would develop which were not anticipated by the creed. The strong would and did take advantage of the weak.” Given the liberal order’s ideological underpinnings, they would “make demands upon the community which seemed reasonable to the claimant and inordinate from the standpoint of the community.” “Free Market” Industrial Capitalism in the Nineteenth Century U.S. Like feudalism before it, bourgeois liberalism lent itself to unique aggrandizements of power. In nineteenth century England and the U.S., the commercial classes converted the precepts of an anti-hierarchical (liberating) liberalism into a set of
“the equalitarian ideal …[at least in the liberal U.S.] does not [typically] spring from pure ethical imagination” – from abstracted utopianism or Leftist dogmas -- but from the particular circumstances of actual life. In fronting the world politically and legally, the relative attentiveness to the claims of individuals and those of the community will vary. “Both individual and collective centers of human vitality may be endlessly elaborated. “ “Any premature definition of what the limits of these elaborations ought to be,” moreover, “inevitably destroys and suppresses legitimate forms of life and culture.” “Every definition of the restraints which must be placed upon these vitalities must be tentative; because all such definitions, which are themselves the products of specific historical insights, may prematurely arrest or suppress a legitimate vitality, if they are made absolute and fixed.” The community must consistently re-examine the presuppositions upon which it orders its life, because no age can fully anticipate or predict the legitimate and creative vitalities which may arise in subsequent ages.” This was one of the key grounds upon which Niebuhr defended democracy – with a full accounting of its perils – as the most effective means for people to live together in time morally, ethically, and politically. “[D]emocratic freedom is right …, Niebuhr affirmed, because “there is no historical reality, whether it be church or government, whether it be the reason of wise men or specialists, which is not involved in the flux and relativity of human existence; which is not subject to error and sin, and which is not tempted to exaggerate its errors and sins when they are made immune to criticism.” To be genuinely moral, “Democracy … requires something more than a religious devotion to moral ideals.” “It requires religious humility.” When it comes to equality, the eruption of dissent and the preoccupation at a
inflamed passion and interest in politics – faction, threats to rights (especially property rights), etc.). But the entire Reagan administration push for (Old/Reactive) Originalism, as noted in passing above, was itself anti-Foundationalist and positivist, since it simply took the old, early twentieth century progressive theories of judicial review and judicial role in a democracy and hurled them at later Warren Court liberals, charging hypocrisy (the charge against the Warren Court of “judicial activism” were a recycling of the Progressive theories hurled earlier at the “Lochner Court”). If liberal is a profound threat to American freedom and the American way of life, in ways that amount to a betrayal of all we value as a country, then the conviction must apply equally to the constitutional theories of Robert Bork, Edwin Meese, Antonin Scalia, and Ronald Reagan. This paper is aimed at what I see as the irrelevance of much of constitutional theory that is currently being advanced on the progressive/liberal side, leaving the field, in law, probably, but certainly in constitutional politics, to the Right – making “Originalism” the only game in town, even amongst liberals. A large part of the problem as I see it is that liberals have not be listening to conservatives. They are still focused on the Old/Reactive originalism that predominated a generation ago. The charge they lodge is hypocrisy: ‘you say you believe in judicial restraint – but you are the judicial activists! (Lopez, Morrison, Heller, McDonald, Snyder v. Phelps, Hobby-Lobby, Citizens United, Kelo dissents, etc. – the whole new conservative rights revolution)). But “originalism” is not the same today as it once was, simply because it is using the same name. The originalism at the heart of the contemporary Right is new wine in an old bottle.