Conservatives' Idea of Classical Legal Liberalism Mistaken, Gordon Says
Conservatives' conception of classical legal liberalism of the late 19th and early 20th centuries is based on an idealized past that doesn't exist, said Robert W. Gordon, Yale Law School's Chancellor Kent Professor of Law and Legal History, at an event sponsored by the American Constitution Society Oct. 14 in Caplin Pavilion. Furthermore, any contemporary attempt to follow the era's model of social regulation and free market libertarianism can only lead to the same dire consequences, he added.
"I want to argue that indeed we have already tried out one version of the conservative experiment," he said. "We have seen the past and it didn't work."
Gordon offered his talk as "preventative medication … against certain forms of conservative nostalgia."
"Do we really want to revive the law of the classical era?" he asked. He claimed most modern American conservatives today are in fact radicals who want to overthrow long-established legal practices. "For the most part conservative ideology is backward-looking," he said. "It is an overwhelming politics of nostalgia."
Conservatives' belief in originalism-that the Constitution should be interpreted strictly according to what they believe its framers meant — "is not really a practical program."
Even during the 18th and 19th centuries, there were "conflicting and ambiguous views" about how the laws set forth by the Constitution should be carried out. Its protection of freedom of speech didn't prevent the federal government from prosecuting some who practiced it throughout American history, for example. The framers could not have predicted or planned for the types of cases American courts handle today, either.
"We could not restore that world of 18th-century conservatism if we wanted to… and no one — even conservatives — really wants to."
Gordon outlined two modern strains of conservatism that don't jibe well: economic libertarians, who idealize the Lochner era of supposed laissez faire attitudes, and cultural conservatives, who idealize the era for its attempts at social control of immorality and deviant behavior. Yet both are hostile to welfare-economic libertarians because they don't like redistributing income, and cultural conservatives because they believe it leads to immoral behavior like promiscuity.
"These two wings are very different parties, of course … their major programs seem incompatible," Gordon said. For example, television leads to immorality, according to the cultural conservatives, but it also sells products and keeps the economy moving, which libertarians appreciate.
Unlike the left, which has struggled to unite its constituency, these two strains of conservatism have been able to ally against their opposing party, despite their differences. "Their solidarity is given ideological comfort … by shared traditionalist nostalgia," he said.
In the 19th century, the country's "moralized political economy" connected prosperity with goodness. "They believed that the market was a tester, or a theater, of virtue," Gordon said. Financial success in the market was seen as a sign of moral success, and vice versa. Courts were supposed to step back and clear the way for natural laws that would better govern men's actions in the free-market society. Americans viewed their country as progressing towards a liberalized, ideal society, and once that society had been achieved, the free, natural market would only need occasional servicing and maintenance.
But "by and large they didn't really act as if they believed in this," he said. In the social realm, the natural state was viewed as fallen, weak, and sinful, and "the glue of society was in the bonds of community and authority.
"The order of competition rested on spheres of social life like the family," he said. "The order of equal rights rested in hierarchical subordination" — a wife was subordinate to her husband, an employee to his employer.
Gordon challenged the conservative conception of the era's hands-off society, citing the federal government's actions toward the Mormons during 1860-90, when an arsenal was deployed against Mormon economic and social institutions. The result? Women's suffrage was repealed in Utah, polygamy was banned, and the government limited Mormons' holdings of real property. "These were massive interventions," he said, during the supposed height of laissez faire.
Liberty was an important interest when it served the family structure of separate spheres, but dangerous when it threatened that social order. Reformers grew obsessed with suppressing vice because of the new threats to the moral economy, Gordon said. The increase in immigration from Europe and Asia threatened this social order as well, causing the emergence of residency tests and laws criminalizing anarchist speech.
"The problem, however, was the market seemed to be wreaking havoc with the moral economy," he said, thus the need for courts to regulate the former realm of natural law. Cast in this light, it was easy for judges to see labor strikes as interference with freedom for consumers and other workers' rights, and the strikes' potential violence was a threat to public order. While juries still sided with laborers, civil rights protests didn't receive the same protection.
"Legal authorities were disposed to respond with repression … even if doing so repressed the market," he added. Courts upheld vagrancy laws and saw the dangers of women's expanded contractual opportunities with prostitution (once seen as an effective safeguard for respectable wives with randy husbands), and outlawed abortion and contraception. In one Supreme Court case, justices upheld the indecent exposure conviction of the author of "The Nudes and Prudes."
The South was especially patriarchal, with excessive laws against rape by black men; the region also tightened anti-incest laws and strengthened enforcement of sexual codes. The preservation of racial and sexual order easily trumped the economic order, Gordon said.
Free markets were disturbing the moral economy, commercializing sexual vice, attracting immigrants, and creating unemployment. White males' prior claim to equality faded fast with increasing class conflict. "To regulate morals was to regulate the economy, big-time," Gordon said. "The courts … remade themselves into powerful regulatory agencies." Despite what conservatives think today, there was no harmonious synchronization of economic and moral order.
"As a social experiment, the classic legal liberalism was a huge failure," he said. The current conservative vogue that finds it alluring only arises from misapprehensions of its consequences — class conflict, squalor, and racial oppression. "Yet there is something to be learned from the classical legal liberalism, and that is that it doesn't work."
Gordon added that the Progressive programs that followed the era "were not invariably better by any means." Some of the old-time conservatives turned out to be champions against the Progressives' eugenics movement and opposed prohibiting people from learning their native language in school.
Conservatives may have the nostalgia bug now, but "all movements, liberal and conservative, appeal to something that we've lost," Gordon said. People in the 19th century thought they were evolving toward the ideal society, but were troubled by clouds on the horizon, spurring the spate of social regulation. "We seem to be living, in my mind, in a very similar age," he said. "This is the language of a powerful, very insecure empire."
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