Robert W. Gordon the New Right with an “original” Constitution, from which much twentieth century political and legal innovation is seen as an unacceptable departure. The expansion of the powers of government, especially national government, to regulate business property and redistribute incomes through progressive taxation, the large- scale delegation of legislative power to administrative bureaucracies, and the post-1960 judgemade Constitutional limits on the powers of public authorities to control crime and deviance and to promote morality and religious observance - all these are not only unwise but in some sense contrary to fundamental law. History supplies a set of basic private law groundrules - the “traditional principles of the common law” of tort, property, contract, labor and unfair competition — for the proper constitution of free markets, from which much modern law, both judge-made and statutory law, is seen as having improperly deviated. History supplies a set of”traditional values” (such as values condemning abortion and homosexuality) protected by legislatures through morals legislation backed by the criminal sanction, and also enforced by the granting of discretion to various authorities to regulate the lives of schoolchildren, juvenile delinquents, persons suspected of crimes, prisoners, and the dependent poor: both those values and the authority of those who would enforce themare seen as having been fatally undermined by the “Rights Revolution” - the wave of decisions, pioneered by the highly activist Supreme Court of the 1960s and 70s, which awarded members of such groups newlegal “rights” to be protected against arbitrary treatment. History supplies a basic Grundnorm of liberal society, the norm of “color-blind equal opportunity”, which requires for its realization a legal system structured to preserve a competitive capitalism, with formally-equal rights for each and special privileges or special disabilities for none, which will operate so as to reward every individual precisely in proportion to his or her merit — which is seen as violated by many modern programs of special subsidies and exemptions, especially “affirmative action” systems of employment preferences for women and for blacks and other minorities. As the NewRight ideology has spread among elite decision-makers and intellectuals, it has posed a serious challenge to the “Progressive-liberal” consensus about the legal meanings of history, a consensus that had previously dominated American legal thought for a very long time — from the 1930s through the 1970s, approximately. The historical claims of NewRight ideology in particular have touched off a fierce Historikerstreit among Old Liberal, New Right, and radical legal intellectuals. This essay will be largely devoted to giving an account of the uses made of historical argument in these legal-political controversies. I do not however wish to leave the impression that all legal history in the United States is produced in order to serve immediate political or ideological purposes, that is, to provide footnotes for polemics or legal briefs. On the contrary: scholarly legal 182
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