B004E3WO62 EBOK

by Morton J. Horwitz

  As Edward Purcell has shown,22 much of post-war American thought was obsessed with identifying the "lessons" to be learned from the the spread of totalitarianism. While one school of thought, mainly Catholic, sought to blame moral relativism for the spread of a "might makes right" philosophy, others wished to show instead that an absolutist mindset was actually more conducive to the growth of totalitarianism.23 Similarly, while some thinkers wished to insist that an emphasis on "ideology" produced a fanatical frame of mind '21 others devoted themselves to warning that it was rather the absence of an ideology that encouraged nihilism, which, in turn, could easily degenerate into totalitarianism. The question as to whether moral certainty enhanced or retarded the rise of totalitarianism was thus at the center of many debates over the lessons to be learned.

  The emphasis on morality highlighted a crisis of authority that classical positivism encountered in the post-war environment. Could the devotees of ethical positivism continue to maintain a sharp distinction between objective facts and subjective values21 in a world in which political morality was said to require commitment to a "fighting faith"?26 Could the philosophical cousins of the ethical positivists, the legal and logical positivists, likewise continue to expound their versions of the fact-value distinction? For the logical positivists,27 the question was whether there was anything left for philosophy beyond reducing all expressions to clear, scientific, value-free statements that could be tested like propositions in the natural sciences. For the legal positivists,28 the claim of a separation between law and morality, or between positive law and natural law, was dramatically called into question not only by the decision in Brown v. Board of Education but also by the Nuremberg and Tokyo trials of Nazi and Japanese leaders for crimes against humanity. The desire to distinguish between justice and the vengeance of the victors led to many arguments over whether it was fair to impose criminal punishments without a pre-existing statutory prohibition.29

  There were two schools of thought on the reasons why the free world had not succumbed to totalitarianism. For one group of thinkers, the explanation derived from one or another version of consensus theory, which sought to portray the existence of a basic societal consensus on fundamental values.30 Another group of thinkers emphasized not consensus but rather some version of an equilibrium theory that posited that agreement would emerge after trading among different and competing groups. These interest group pluralist theorists thus sought to create a conception of a political market analogous to economic markets.

  Each of these theories aspired to accommodate the powerful claim of positivism that values were incapable of being objectively determined. Both consensus and equilibrium theories were efforts to escape from the dilemma that the factvalue distinction had imposed on social thought.

  Consensus thinkers followed the same intellectual strategy pursued by customary law theorists from Oliver Wendell Holmes, Jr., and James Coolidge Carter31 to Karl Llewellyn 32 and Benjamin Cardozo.33 By attempting to locate norms in widely shared customs and conventions, they sought to impute value to social facts.34 They always tended, therefore, to suppose that the way things are is the way they were meant to be. Indeed, in its earliest incarnations, nineteenthcentury positivism had sought to attack precisely this conservative merger of fact and value.

  The equilibrium theorists, by contrast, tended to see a multiplicity of interests and values in society, not some homogeneous system of social consensus. While the interest group pluralists tended to regard the search for consensus as perhaps encouraging a coerced uniformity,3S consensus thinkers often denounced the pluralists for proposing an amoral, market-oriented vision of politics. Yet, both theories shared a picture of public policy as benevolently reflecting the outcome either of homogeneous customs or of market-oriented political trading among competing interest groups. In some formulations, in fact, both consensus and equilibrium theories might converge, as the interest group pluralists conceded that what underlay the substantive conflict over ends was a more fundamental agreement about processes. If, for example, the consensus theorists sought to find the basic difference between democracy and totalitarianism in whether there was an agreement on democratic values among members of the society, the pluralists located their consensus in a "morality of process."36 If the advocates of consensus insisted that widespread agreement on procedure actually reflected a deeply substantive consensus-for otherwise nobody would acquiesce in an unfavorable outcome-the equilibrium theorists tended to emphasize value-free "neutral princi pies" that could legitimate decisions independent of results. For them, the legal Realists represented a result-oriented jurisprudence that needed to be combatted in the name of neutral principles.

  Constitutional Politics: 1937-1962

  The story of the split within the New Deal majority on the Supreme Court has been told many times.37 Just one year after a New Deal majority was finally consolidated in 1937, justice Harlan Fiske Stone set the stage for future divisions with his famous Carolene Products footnote,38 which sought to legitimate judicial activism in the area of civil liberties while reiterating the Progressive commitment to judicial restraint in review of economic regulation. The Court first divided along these lines in its dramatic 1943 reversal of a three-year-old decision upholding a compulsory flag salute. Written in the midst of a wartime atmosphere in which the the justices of the Supreme Court were clearly conscious of the need to articulate the fundamental differences between democratic and totalitarian values, the second Flag Salute Case i9 became the focal point for post-war debates about whether there was a "preferred position" for civil liberties in the American constitutional scheme and whether there was a principled basis for distinguishing between judicial protection of personal and property interests.40 At just the moment that McCarthyism was emerging as a major domestic reaction to the deepening cold war, the New Deal justices split over protection of civil liberties, with a solid majority, led by justice Felix Frankfurter, denying that there was any basis in the Constitution for special protection of civil liberties.

  It was just at this time that a unanimous Supreme Court, led by its new Chief Justice, Earl Warren, decided Brown v. Board of Education, declaring school segregation unconstitutional and unleashing ever more far-reaching pressures for fundamental social change. 41

  While Brown v. Board of Education is justly regarded as the most important and influential decision of the Warren Court, its significance for post-war legal thought needs to be analyzed more discretely. Until Arthur Goldberg was appointed by President John F. Kennedy in 1962 to replace justice Frankfurter, there was no clear liberal majority on the Supreme Court. Indeed, as justice Hugo Black began increasingly to separate himself from the liberal majority, it was perhaps not until the appointment of Thurgood Marshall in 1967 that a strong Warren Court majority actually was consolidated. Only one year later, after an abortive attempt to elevate Justice Abe Fortas as Earl Warren's successor as Chief Justice, President Lyndon B. Johnson's term ended, enabling President Richard M. Nixon to appoint Warren Burger. Finally, the forced resignation of justice Fortas for conflict-of-interest charges transformed the composition of the Burger Court.

  For about two decades after the end of World War II, the central ideological question before the Supreme Court was whether judicial activism was compatible with earlier Progressive commitments to judicial restraint in the name of democracy. It was only during the 196os that the Supreme Court began a determined effort to dismantle its own post-war judicial acquiescence in McCarthyism, and not until Mapp v. Ohio (1961)42 did it initiate a steady process of incorporating the Bill of Rights into the Fourteenth Amendment as a restriction on the power of the states. Brown v. Board of Education thus became a lightning rod not only for the "massive resistance" of Southern segregationists but also for old Progressives who had become deeply wedded to the view that judicial review violated democratic principles. 43

  Until the consolidation of the Warren Court majority, legal thinkers thus spent a remarkable amount of intellec
tual energy attempting to reconcile Brown v. Board of Education with much earlier Progressive commitments to judicial restraint.

  Legal Process and Neutral Principles

  The single dominant theme in post-war American academic legal thought is the effort to find a "morality of process" independent of results. This theme not only represented a reaction to the Legal Realist subversion of the law-politics, substance-procedure dichotomy, but it also paralleled remarkably similar themes in many other post-war academic disciplines.

  From analytical philosophy to logical positivism and behaviorism in the social sciences' to New Criticism in literature,45 post-war academic thought sought to repress politics by devoting its energies to form instead of substance and to technical accomplishment at the expense of social or political insight. In fields such as sociology and economics, the emphasis on value-free social science subordinated or obscured conflicts over values.

  The historian Carl Schorske has written of the general "intellectual situation" he encountered in America during the 1950s.

  In the fields of greatest importance to my concern-literature, politics, art history, philosophy-scholarship in the 1950's was turning away from history as its basis for self-understanding. At the same time, in a parallel movement, the several academic disciplines redefined their intellectual functions in ways that weakened their social relatedness. Thus, for example, the New Critics in literature, as they came to power in the academy, replaced the practitioners of literary historicism who had prevailed in English departments before World War II with scholars committed to an a-temporal, internalistic, formal analysis. In political science, as the New Deal receded, the normative concerns of traditional political philosophy and the pragmatic preoccupation with questions of public policy began to give way to the ahistorical and politically neutralizing reign of the behaviorists. In economics, mathematically oriented theorists expanded their dominion at the expense alike of the older, socially minded institutionalists and of policy-oriented Keynesians. Even in such a field as music, a new cerebrality inspired by Schoenberg and Schenker began to erode musicology's historical concerns. Above all in philosophy, a discipline previously marked by a high consciousness of its own historical character and continuity, the analytic school challenged the validity of the traditional questions that had concerned philosophers since antiquity. In the interest of a restricted and purer functioning in the areas of language and logic, the new philosophy broke the ties both to history in, general and to the discipline's past.

  "In one professional academic field after another," Schorske concluded, academic specialization subverted "unifying premises" and "principles of coherence" and "reinforced the culture's pluralism. . . ."

  The most influential and widely used text in American law schools during the 1950s was The Legal Process by Henry Hart and Albert M. Sacks. Much has already been written about the legal process school as an expression of a distinctive post-war perspective on law. 47

  The legal process school sought to absorb and temper the insights of Legal Realism after the triumph of the New Deal. Its most important concession to Realism was in its recognition that doctrinal formalism was incapable of eliminating discretion in the law. The task was instead to harness and channel that discretion through institutional arrangements.

  The focus on "institutional competence" as the basis for the distribution of legal tasks among various legal actors was one of the most distinctive reflections of the New Deal sympathies of its authors. Hart and Sacks sought to move academic legal thought away from its almost exclusive pre-New Deal focus on the common law and instead to emphasize the major roles that statutory and administrative law had come to play in the regulatory state. Indeed, the explosion of law as a result of regulation meant that it was first necessary to have "a better understanding of law generally rather than of any particular field of law."48

  "[T]he most fundamental of the conditions of human society," Hart and Sacks asserted, was that "people are continuously and inescapably dependent upon one another." Interdependence required "affirmative and knowledgeable cooperation," not forms of competition deriving from atomistic individualism. Because of "interdependence with other human beings and the community of interest which grows out of it," groups are formed "for the protection and advancement of their common interests . . . which, because of that interdependence, transcend necessarily their points of difference." "[I]nterdependent living is collaborative, cooperative living," and "[p]eople need understandings . . . about the kinds of affirmative conduct which is required if each member of the community is to make his due contribution to the common interest."49

  But any consensus about what constitutes the common interest fails because "[a]bstract understandings . . . will necessarily be indeterminate in many respects." Indeed, "substantive understandings . . . about how the members of an interdependent community are to conduct themselves in relation to each other and to the community" derive from "the existence of what may be called constitutive or procedural understandings . . . about how questions . . . are to be settled."

  These institutionalized procedures and the constitutive arrangements establishing . . . them are obviously more fundamental than the substantive arrangements in the structure of a society. . . . The principle of institutional settlement expresses the judgment that decisions which are the duly arrived at result of duly established procedures of this kind ought to be accepted as binding upon the whole society unless and until they are duly changed.5°

  The Legal Process materials symbolize the moment in post-war history at which the New Deal lawyers' conception of the "common interest" came to be thoroughly transformed from one of substance to one of procedure. Whether due to fear of conservative attacks on the ideal of "collaborative, cooperative living" or anxiety that any substantive conception of the common interest might degenerate into totalitarianism, S1 The Legal Process expresses the belief of a dominant postwar generation of elite legal thinkers that "procedures . . . are obviously more fundamental than . . . substantive arrangements. . ."52

  After the collapse of European democracies, it was to be expected that Americans would focus upon questions dealing with the nature of democracy. During the post-war period, in fact, writings on democratic theory played a central role in shaping the legal and political culture of the period. Among the most significant contributions were efforts to elaborate a process-oriented theory of democracy free of any substantive commitments to particular values such as equality.

  The book that provided the intellectual foundation for post-war democratic theorizing was originally written in 1942 by Viennese-born Joseph A. Schumpeter, who became professor of economics at Harvard. In Capitalism, Socialism and Democracy, 53 Schumpeter offered a minimalist theory of democracy that created the framework for process-oriented theories of law and politics that would come to dominate American intellectual life in the 1950s. His book was in effect a dialogue between a post-war Europe, most of whose prominent intellectuals believed not only that socialism was inevitable in post-war democracies but that it was also the logical fulfillment of democratic values, and an American society, where cold war rhetoric emphasized the fundamental incompatibility between democracy and socialism. Critical of socialism for what he thought were inherent bureaucratic tendencies that dampened innovation, Schumpeter nevertheless offered a theory of democracy that was compatible with either capitalism or socialism.

  Democracy entailed no substantive commitments, particularly to equality, Schumpeter argued. It was simply a set of rules of the game for preserving political competition, so that the "outs" could throw out the "ins." In a period in which one-party Eastern European states under Soviet domination were producing grim repressive regimes, this minimalist definition of democracy was not without value. Moreover, the conclusion that democracy and socialism were compatible was, coming from someone basically hostile to socialism, an important statement in post-war America, where, increasingly, democratic socialism and Stalinist Communism were purpos
efully confused. But equally-and perhaps more importantly for Schumpeter-he wished to inform his social democratic European friends that there was no necessary relationship between political and social equality. He began with an attack on what he called the "classical doctrine of democracy."

  In Schumpeter's famous definition, democracy was an "institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote." Democracy thus only entailed "competition for political leadership."S4 "The principle of democracy . . . merely means that the reins of government should be handed to those who command more support than any of the competing individuals or teams." 55 Schumpeter offered a definition of democracy that sought to eliminate all notions that democratic governments express either some abstract "will of the people" or any particular commitment to equality.

  Indeed, political theorists during the 1950s followed Schumpeter's lead with enthusiasm. "[D]emocracy has sometimes been defended," Henry B. Mayo wrote, "by reference to its extra-political egalitarian tendencies-social equality, for instance-but it need not be: the political equality and the free participation make up the proper logic of the system."56 "[M]ixing the notion of political and legal freedoms with that of possession of the economic means to exercise these liberties" produced "confusion," Mayo concluded.57

  Absolute equality "leads straight to the concentration camp, where it is most fully realized," the political theorist J. Rolland Pennock wrote in Liberal Democracy (195o). Even the prime value of relative equality "will end up by putting people where they belong for their own good or for the good of society. . . ."58

  Schumpeter's analysis was followed by perhaps the most influential book on democratic theory during the post-war period, Robert Dahl's A Preface to Democratic Theory (1956).59 Like Schumpeter, Dahl wished to discredit the classical theory of democracy, or what Dahl called "populist democracy." At the same time, American historians were discovering various sinister strands in the history of populism.60