The Historical Argument in American Legal Culture By Robert W. Gordon This essay explores some of the principal ways in which historical arguments are deployed in the legal culture of the United States. In the last twenty years there has been a remarkable revival of historical modes of argument and justification in American legal practices. In a country often accused of lacking any consciousness of the past, lawyers, legislators, judges and legal scholars have been engaged in a series of epic struggles to dominate the interpretation of history in order to make it serve their conflicting present agendas. The past is alive, armed and dangerous. In part these legal debates simply echo general political controversies - controversies between left- and center-liberals (“Progressive Liberals”, let us call them) who would like to expand or at least preserve the 20th-century regulatory welfare state and the “Rights Revolution”, and, on the other, neo-liberals and cultural conservatives (the “New Right”, for short) who believe that precisely those policies have been the main cause of economic and cultural decline and must therefore be rescinded. The “left” parties, broadly speaking, believe that the nation has been following a path of progress, which, if continued, will lead tc^ fulfillment of the nation’s traditional ideals of equality and civic inclusion. The “right” parties believe that the Progressive policies and cultural trends of the 20th century, and the legal and administrative instruments through which they have been expressed, represent a betrayal of the ideals of free markets supported by traditional morality, and that to be true to its origins and traditions the society must restore the principles it foolishly abandoned and return to an earlier and uncorrupted state. Tocqueville famously remarked that in America political controversies tend to be transformed into legal controversies. One could add that legal controversies tend in turn to be transformed into arguments over history. The New Right parties who are now seeking political ascendancy have developed an elaborate and quite sophisticated legal ideology. Much of this ideology relies upon relatively abstract (libertarian) natural-law thinking and (utilitarian-political-economic) reason. But history also plays a central role. History supplies ’ This essay draws upon work-in-progress on a book about the uses of history in legal argument. Earlier versions of the ideas expressed here have been delivered as lectures at the University of Michigan, University of Kyoto, and Cleveland-Marshall Schools of Law. 13
RkJQdWJsaXNoZXIy MjYyNDk=