1 The literature is vast; but one can begin with the overviews provided by Mark Kelman in A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987) (“Kelman, Guide”), and Allan C. Hutchinson, ed., Critical Legal Studies, (Totowa, N. J.: Rowman & Littlefield, 1989). In the introduction to a section on “Confronting Contradiction” in his Critical Legal Studies, at 137, Hutchinson wrote that “liberal theory has lent an appearance of smooth rationality to legal doctrine and has managed to paper over the cracks in social life.”Google Scholar

I should note right up front that in my judgment the exposure of these contradictions or tensions does not undermine liberalism as a political project. John Dewey's credentials as a liberal are fairly well established, but whatever else one might say about him, it is not possible to claim that he lacked a social democratic vision or a commitment to reconfiguring inherited conceptions of property and individual liberty in light of developing (postindustrial) conceptions of the public good. See Westbrook, Robert, John Dewey and American Democracy (Ithaca, N. Y.: Cornell University Press, 1991), and Alan Ryan, John Dewery and the High Tide of American Liberalism (New York: W. W. Norton, 1995). For an example of how an exposure of law's disguised contradictions can lead one to admire “the amazing trick” by which law confidently asserts its contingent coherence rather than to decry law's fraudulent nature, see Stanley Fish, “The Law Wishes to Have a Formal Existence,”in Fish, There's No Such Thing as Free Speech and It's a Good Thing, Too 141–79, 169 (New York: Oxford University Press, 1994) (arguing that “doctrinal inconsistency undoes conventional argument only when the arguments are removed from the local occasion of their emergence and then put to the test of fitting with one another independently of any particular circumstance,” at which point the contradiction “is embarrassing only if the context is not law and its workings, but philosophy and its requirements”; but since law is inevitably pragmatic rather than philosophical, “the inconsistency of doctrine is what enables law to work”). As I hope to show, there has never been a time in American constitutional history when the values of property and individual liberty were unencumbered by considerations of the public good, although obviously there have been plenty of times when the prevailing understandings of the public good have been problematic if not despicable.Google Scholar

2 See Betty Mensch, “Contract as Ideology,” 33 Stan. L. Rev. 753 (1981). She wrote that given the contradictions built into classical contract law: “Even a judge determined to decide a case according to free contract principles… could find himself pulled in two quite opposite directions.”Google Scholar

3 See Mark Kelman, “Interpretive Construction in the Substantive Criminal Law,” 33 Stan. L. Rev. 591 (1981).Google Scholar

4 See Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986); Duncan Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685 (1976).Google Scholar

5 Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 205, 210–13 (1979). While for some this “contradiction” represents a fatal blow to liberalism's philosophical coherence, it is possible for readers more sympathetic to liberalism to safely reinterpret this alleged flaw so that it stands for the relatively banal proposition that there are times when government should leave people alone and times when it should not, and it is hard to say in the abstract precisely when either option is the more appropriate. This is not so much a distinctive dilemma of liberalism as a practical problem with which many different political traditions must cope. For other discussions of the dilemmas or contradictions in liberal legalism, see Mark Tushnet, “The Dilemmas of Liberal Constitutionalism,” 42 Ohio St. L. J. 411 (1981); Mark G. Kelman, “Trashing,” 36 Stan. L. Rev. 293 (1984), and id., Guide.Google Scholar

6 Oliver Wendell Holmes, The Common Law, ed. Mark DeWolfe Howe, at 5 (Boston: Little, Brown, 1963; originally pub. in 1881).Google Scholar

7 David Abraham, “Liberty without Equality: The Property-Rights Connection in a ‘Negative Citizenship’ Regime,” 21 Law & Soc. Inquiry 1 (1996). Page and note references in the text refer to this article.Google Scholar

8 Kennedy, 89 Harv. L. Rev. at 1737.Google Scholar

9 See Harry N. Scheilber, “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,” 5 Perspectives Am. Hist. 329 (1971); id., “Government and the Economy: Studies in the ‘Commonwealth’ Policy in Nineteenth-Century America,” 3 J. Interdisciplinary Hist. 135 (1972); id., “Law and the Imperatives of Progress: Private Rights and Public Values in American Legal History,” in J. Roland Pennock & John W. Chapman, eds., Ethics, Economics, and the Law 303–20 (New York: New York University Press, 1982); id., “Public Rights and the Rule of Law in American Legal History,” 72 Cal. L. Rev. 217 (1984); id., “Economic Liberty and the Constitution,” in Essays in the History of Liberty: Seaver Institute Lectures at the Huntington Library 75–99 (San Marino, Cal.: Henry E. Huntington Library, 1988). See also Oscar & Mary Flug Handlin, Commonwealth: A Study in the Role of Government in the American Economy: Massachusetts, 1774–1861 (Cambridge: Harvard University Press, 1947; 1969 rev. ed.); Paul Kens, “Liberty and the Public Ingredient of Private Property,” 55 Rev. Politics 85 (1993).Google Scholar

10 Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic 38 (New York: Cambridge University Press, 1993). Tomlins argues that the ascendancy of the liberal vision was not completed until mid-century.Google Scholar

11 Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994).Google Scholar

12 Commonwealth v. Alger, 7 Cush. (61 Mass.) 53, 84–85 (1851).Google Scholar

13 I made this same point in my review of Freyer and Tomlins. See Gillman, Howard, “American Labor versus American Capital before the Civil War,” 18 Legal Stud. F. 369 (1995). In fact, one of the more obvious objections to Abraham's argument is that capitalism itself would not be well served by a hegemonic commitment to protecting negative liberty and property. I thought it was standard history that during the Jacksonian period courts were willing to sacrifice vested rights of property in order to open up new opportunities for investment, all in the name of promoting the good of the community. See Charles River Bridge v. Warren Bridge, 36 U. S. 420 (1837). And until capital became interested in establishing labor peace, courts did-not seem overly accommodating of the negative liberty of workers who attempted to use their freedom of speech to organize boycotts or urge others to join unions. While this is not my interpretation, Abraham would be on safer ground if he argued that our core constitutional value has been about the promotion of capitalism rather than the protection of property and negative liberty.Google Scholar

14 See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N. C.: Duke University Press, 1993).Google Scholar

15 Lawton v. Steele, 152 U. S. 133, 137 (1893).Google Scholar

16 Slaughterhouse Cases, 83 U. S. 76 (1873); Munn v. Illinois, 94 U. S. 113 (1877); Mugler v. Kansas, 123 U. S. 632 (1887); Barbier v. Connolly, 113 U. S. 27 (1884); Holden v. Hardy, 169 U. S. 366 (1898); and Bunting v. Oregon, 243 U. S. 426 (1917).Google Scholar

17 Yick Wo v. Hopkins, 118 U. S. 356 (1885); Lochner v. New York, 198 U. S. 45 (1905); Meyer v. Nebraska, 262 U. S. 390 (1923); Adkins v. Children's Hospital, 261 U. S. 525 (1923).Google Scholar

18 Charles Warren, “The Progressiveness of the United States Supreme Court,” 13 Colum. L. Rev. 294 (1913), and id., “A Bulwark to the State Police Power-The United States Supreme Court,” 13 Colum. L. Rev. 667 (1913). Admittedly, the Court became more willing to strike down laws by the 1920s, but the constitutional jurisprudence did not change. See also Urofsky, Melvin I., “Myth and Reality: The Supreme Court and Protective Legislation during the Progressive Era,”Yearbook of the Supreme Court Historical Society 53–72 (1983).Google Scholar

19 While the tradition of police powers always operated alongside the tradition of property and negative liberty, it is possible to identify periods where the configurations of these traditions made it more or less possible for the state to regulate as it saw fit. There was a lot of market regulation at the turn of the century but obviously not as much as was permitted after 1937. This means that the Waite and Fuller Courts were less accommodating of the police powers than was the Stone Court, but it does not mean that constitutional jurisprudence at the turn of the century was dominated by a property-negative liberty regime to the exclusion of a sense of the general welfare.Google Scholar

20 See Michael Les Benedict. “Victorian Moralism and Civil Liberty in the Nineteenth-Century United States,”in Donald G. Nieman, ed., The Constitution, Law, and American Life: Critical Aspects of the Nineteenth-Century Experience (Athens: University of Georgia Press, 1992).Google Scholar

21 Reynolds v. United States, 98 U. S. 145 (1879), and Employment Division v. Smith, 494 U. S. 872 (1990).Google Scholar

22 Bradwell v. Illinois, 83 U. S. 130 (1873), and planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). Abraham may want to make more explicit how the issue of women's access to abortion is addressed in his preferred German constitutional tradition.Google Scholar

23 23. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). There are as many casebook examples of the Court relying on community values and interests to suppress speech as there are examples of a free-speech trump of the public good. Abraham recognizes that the history of freedom of speech has been troubled and that many doctrines were forged in dissent “during extended periods of repression and quiescence” (see his nn. 205–7 and accompanying text). He also appropriately cites (at n. 211) Mark Graber's terrific “demystification” of the “worthy tradition” in Transforming Free Speech: The Ambiguous Legacy of Civil Libearianism (Berkeley: University of California Press, 1991). But what is not explained is how he can reconcile this acknowledgment with his parallel claim that free speech jurisprudence has focused on a “negative liberty principle” which “seeks to minimize government.”Google Scholar

24 Buck v. Bell, 274 U. S. 200 (1927), and Bowers v. Hardwick, 478 U. S. 186 (1986).Google Scholar

25 Michigan State Police v. Sitz, 110 S. Ct. 2481 (1990), and National Treasury Employees Union v. Von Raab, 489 U. S. 656 (1989).Google Scholar

26 This 60-year-old practice has recently been called into question by the Court's decision in United States v. Lopez, no. 93–1260 (1995, striking down a congressional ban on the possession of weapons near schools. As I indicated earlier, I do not disagree with Abraham that our constitutional discourse has not been supportive of claims of positive rights, except in areas such as a right to counsel. But since 1937 there have been no discernible constitutional barriers to the development of the modern welfare state. Moreover, as Abraham points out (at 31), it is possible to configure contemporary constitutional discourse so that one can “get from formal-negative to substantive-positive liberty, thereby escaping the property-dependency of rights.” Therefore, if there are constraints on this development, they would appear to be found in the contingencies of the Court's personnel rather than in the essence of the jurisprudence. And on the topic of the Court's personnel: unlike Abraham (at 38), I do not see it as “difficult to imagine” that a Supreme Court nominee such as Thurgood Marshall might have publicly committed himself to the promotion of “equality, social justice, the welfare state, the rule of law, and militant democracy.”Google Scholar

27 United States v. Carolene Products Co., 304 U. S. 144 (1938); Howard Gillman, “Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence,” 47 Political Res. Q. 623 (1994). In light of this history, the only near absolute protection of property of which I am aware is the prohibition against the actual confiscation of property without due process or just compensation. At the same time, until recently, supporters of property rights have claimed that even this bedrock guarantee has been seriously eroded by inappropriate accommodations of the public interest-consider debates about whether it is constitutional for the government to prohibit landowners from using land that represents habitat for endangered species or to require property owners who want to develop their property to set aside parcels for public projects. If property rights have received the sort of protection that Abraham suggests, then how can we understand the desire of conservative legal scholars and judges to revive stronger protections for property?Google Scholar

28 T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” 96 Yale, L. J. 943 (1987).Google Scholar

29 Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 230–32. (Chicago: University of Chicago Press, 1994).Google Scholar

30 Id. at 275, 308.Google Scholar