The Historical Argument in American Legal Culture Neo-Progressive and Radical Responses: Counterhistories The New Right initiative to reclaim the interpretation of Constitutional and legal history touched off a minor cultural war, an American Kulturkampf for the soul of the American legal system. Having re-established original Constitutional meanings as the prized territory of public law, the New Right originalists saw this territory invaded by hosts of historically-minded lawyers with entirely different aims. The contest opened up our legal history to a fresh wave of revisionists, each trying to establish against competitors the authoritative reading of these Constitutional moments. These debates, it has become clear, are not just about law. Americans tend to sacralize their historical experience. Like Christian history, American history has to have a meaning, preferably a single meaning, a Platonic essence. The Constitution - at the time of its adoption only a set of momentary political compromises over a structure of government — has come over time to be a central symbol of our civilization. By appealing to history, American public intellectuals hope to find the answers to such questions as: “Is the essence of our legalConstitutional order the use of lawto protect free markets and ‘traditional’ values? Or is it to promote equality, civic inclusion, and free expression in personal life?” The first impulse of Progressive Liberals in responding to the New Right, was to to re-establish continuity with the Progressive story of liberal society - a story in which the modern state and its social policies could be vindicated and the Reagan Era put in its proper place as an unfortunate interruption. To retake Constitutional ground fromthe conservatives, many lawyers of the center-left - rather unfortunately in my view- abandoned the prevailing Progressive theory of the dynamically expanding Constitution and wandered back with the other time-travelers into the 18th century. Once there they made a happy discovery: the “republican” or civic humanist tradition of Atlantic political ideology elaborated by John Pocock and his school. In that tradition deriving from Polybius, Machiavelli, and James Harrington, which clearly greatly influenced the American Revolutionaries, individual personality is only fully realized through the experience of self-government, through participation in a polis or republic; for its maintenance the republic requires independent citizens capable of the civic virtue that causes men to identify their own interest with that of the common good.25 Legal scholars like Cass Sunstein and Frank Michelman have been inspired by the republican revival to a general conception of the constitutional design as something more than a framework for individual self-seeking through the market, a political system designed to promote, through a filter of high-minded disinterested representation, “deliberative” democracy for the common good.2^ The advantage of “reJ. G. A. Pocock, The Machiovellian Moment (Princeton: Princeton Univ. Press, 1975). Cass Sunstein, “Beyond the Republican Revival,” Yale LawJournal 97 (1988): 1539; Frank Michelman, “Foreword: Traces of Self-Government,” HarvardLaw Review 100 (1986):4. 195
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