The Historical Argument in American Legal Culture 189 Challenges to Liberal Progress To summarize: American legal argument from the Founding onward consistently relied upon a core narrative of liberal progress: the story of liberal modernization, by which lawboth followed and facilitated the evolution of society away from feudalism, tyranny and superstition and towards increasing freedom. To reconcile this dynamic narrative with the need to assert continuity with fundamental principles, the story was often told in a teleological mode, as the gradual fulfillment of perfection of principles already immanent at the time of the Founding. As Abraham Lincoln said of the Declaration of Independeuce, which had declared all men to be created equal even as it established a polity that legalized slavery, the Declaration’s authors did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them, oeln fact they had no power to confer such a boon. They meant simply to dedare the right, so that the enforcement of it might followas fast as circumstances should permit. Thev meant to set up a standard maximfor free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectlv attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.'^ The core narrative underwent important mutations in its phases as Classicalliberal. Progressive, and Rights-Revolution ideology. Each phase always had its critics - reactionaries claiming that a new mutation was a betrayal of liberal principles, radicals that progress was not moving nearly fast or far enough to effective realize the core principles. By the late 1960s, some critiques became more radical. At first the critiques came from the Left - fromcivil rights lawyers, organizers of poor comrnunities and workers, feminists and anti-Vietnam-War activists, who, embittered by growing conservative resistance and backlash to the insurgent social movements of the 1 960s, began to lose faith in liberal progress; and to diagnose economic, racial, and gender inequality as stemming frompermanent structures of oppression (“capitalism”, “racism”, “patriarchy”) — satructures that might vary over time in particular details, but constantly took on new and virulent mutant forms.Some of these activists kept alive utopiansocialist hopes of “Revolution”; more often they were inclined to settle into a kind of grimhistorical pessimismor - as in the case of black radicals who adopted the rhetoric of Third World anticolonialist nationalism- to pursue a limited political strategy of separation from, rather than reform of, the wider society. " Speech on Dred Scott Decision, June 26, 1857, in Ahntham Lincoln, Speeches & Writings, IS32-185S(NewYork: Library of America, 1989), 390, at 398. '■* See, e.g. Derrick Bell, Race, RacismandAmerican Law (Boston: Little Brown, 1973). See Garv Pellcr, “Race-Consciousness,” Duke LawJournal (1990): 758.
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