Robert W. Gordon publicanism” was that it offered a respectable, native-born, Founding-periodbased communitarianism, a viewpoint from which to critique free-market libertarianismthat was an native-grown viewpoint untainted by association with foreign socialisms or the Marxist tradition. Meanwhile more left-of-center historians began working up their own historically-based counter-Constitutional histories, using as their working materials the new social “history-from-the-bottom-up” to recover the political/ legal mentalités of outgroups - outsiders, dissidents, rebels. This is an ancient technique of immanent critique - it makes insurgent outgroups into the bearers of the utopian norms that, it hopes, will eventually triumph as the dominant norms of the system. Of course if the outgroup does eventually triumph, its ideology becomes part of the of ficial legal culture, and its despised radical precursors are retroactively sanctified as visionary prophets. The new sociallegal histories take this method a logical step further, recovering the Constitutional ideas of groups that never won out, or who were briefly successful and then crushed and lost to history - nineteenth century workingmen’s associations, the movements of freed slaves for land redistribution after the Civil War and of the radical Northern political parties who supported them, the agrarian cooperative movements of the 1880’s and 90’s, the industrial unions ofthe 1930’s, the feminist movements of the 1850s, 1930s and 1970s, the civil rights and farmworkers’ movements ofthe 1960s and 70s, as the exponents — and conceivably prophets? - of an alternative, very differently constituted social order. For these historians the master narrative of American legal development is the struggle to realize the ideals of independent “free labor” (freedom from the control of powerful superiors, especially control over work and production) in the conditions of a modern economy; and of equality c'jf legal status, political participation, and economic opportunities for groups previously considered subordinates or outsiders.-^ Anyway, every party (and not just the NewRight) apparently hoped to find in historical Constitutionalisma newbasis for forging consensus on the essential meaning of our national history. What has happened instead, naturally, was that the historical controversies simply re-enact the modern ones. This Babel of contending originalisms has effectively precluded the hardening of a general consensus comparable to the Classical or Progressive narratives of progress in the Constitutional field - though each has achieved a kind of local hegemony by ignoring the existence of the others. But if I am right about the long-run New Right challenge, it is not in the field of Constitutional or public lawat all. Of considerably more importance, I have suggested, are their stealth campaigns in the areas of private law and See the essavs contributed to a Symposiumorganized in 1989 by the Organization of Amcrican Historians, David Thelen (ed.). The Constitution cind American Life (Ithaca: Cornell Univ. Press, 1988). 196
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