by Robert Post*
In 1978, the Harvard Journal of Law and Public Policy was created with the “primary aim” of providing “a forum for alternatives to the liberal establishment.”1 The Journal conceived itself as a “Vox clamantis in deserto.”2 Despite “the proliferation of legal publications”—“Harvard now has law reviews devoted to civil rights-civil liberties law, environmental law, international law, legislation, and women’s law”— “virtually all of the new publications, like their older brethren, maintain a basically liberal editorial perspective.”3
At the time, conservatives were a definite and beleaguered minority in the law schools. But their minority status was a source of strength, as well as weakness. It created incentives for conservatives to join together to confront a common and dominant opponent. But this did not mean that conservatives suppressed dissent. To the contrary, if the “distinguishing feature” of the Journal was its “conservative” “editorial perspective,” it was nevertheless determined to provide voice for “a broad range of conservatives, libertarians, and members of both major political parties.”4 The Journal provided a safe space for the many different stripes of conservatives to debate priorities and goals, with the understanding that their ultimate aim was to overturn an overweening “liberal establishment.”
Until the end of the 20th Century, liberals had no analogous incentives to unite. Progressives felt insulated and protected within the largely sympathetic environment of the law schools. Clinton’s presidency offered a false sense of security. Progressives felt free to pursue their distinctive agendas and to splinter into what it has now become fashionable to call “issue silos.” Liberals defined themselves in terms of the particular policy perspectives they wished to advance, rather than in terms of a common opposition to conservative domination.
Bush v. Gore was the wake-up call. Breaking all the rules,5 a conservative Court appointed a conservative President, and suddenly progressives were entirely shut out from the federal government. Liberal domination of law school faculties and publications could no longer hide the left’s extreme vulnerability, as the right moved to impose conservative judicial, legislative and regulatory agendas. It is in this environment that the American Constitution Society, the progressive counterpart to the Federalist Society, was born. The left had finally learned that it had to come together in united opposition to what had become a conservative establishment.
That is why we should welcome the advent of the Harvard Law & Policy Review. The Reviewwill serve two indispensable functions. It will provide a venue in which the left can dismantle its issue silos and begin to conceive itself as a single movement aspiring to a common goal. And it will provide a safe and hospitable forum in which progressives can debate the best strategies and tactics for loosening the strangulating grip of conservative ideology on national policy.
Make no mistake. The left has a great deal of work to do before it can achieve agreement. We are riven with tensions. Debate rages about the proper constitutional role of citizenship, whether it promotes the forms of social solidarity necessary for equitable redistribution or whether it invidiously distinguishes among persons. Debate rages about how to regard international governance, whether it is to be encouraged in the context of human rights or discouraged in the context of organizations like the WTO or NAFTA. Debate rages about the proper role of federalism, whether national uniformity and preemption is a good, as in the context of civil rights legislation, or an evil, as in the context of DOMA or tort reform. Debate rages about innumerable other topics—about the proper role of markets and incentives in regulatory interventions, about the proper role of religion in the modern nation-state, about First Amendment rights and campaign finance reform, about the regulation of racist speech, about the relationship between freedom and equality.
Differences and divisions of this kind are healthy and invigorating, but only if debate is approached on the presupposition that a general progressive movement must be forged whose purpose is to dislodge conservative hegemony. Because HLPR is a venue that carries within it that presupposition, it will provide a constructive framework for progressive debate. It will unite us, even as we discuss our differences, because we will be discussing how we can and should unite. In this way HLPR will move us past the splintered and particularist perspectives of the 20thCentury. We may even begin fundamentally to rethink liberal positions, in ways that are not beholden to the traditional fractured constellation of progressive organizations.
In a forthcoming article, Reva Siegel and I argue that a convincing liberal constitutionalism will not emerge until progressives develop a politics based upon a vision of collective life able to mobilize persons in defense of their understanding of national identity, which is to say in defense of their idea of the Constitution.6 In our view, the ideology of originalism draws its force and authority from a politics of restoration that has aroused and united conservative citizens, government officials, and judges.7 The left needs to develop a politics of similar power and popular attraction, whether it rests on a vision of restoration or redemption. The Harvard Law & Policy Review will be a perfect venue in which to debate how such a politics may be created. I very much look forward to learning from its pages.
* Robert Post is the David Boies Professor of Law at Yale Law School.
1 E. Spencer Abraham & Steven J. Eberhard, Preface, 1 HARV. J. L. & PUB. POL’Y vii (1978).
2 Id. at viii.
3 Id. at vii.
4 Id.
5 See Robert Post, Sustaining the Premise of Legality: Learning to Live with Bush v. Gore, inBUSH V. GORE: THE QUESTION OF LEGITIMACY 96 (Bruce Ackerman, ed., 2002).
6 See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 FORDHAM L. REV. (forthcoming 2006).
7 Id.