a bad week for the liberal consensus
When I went to law school in the late 70s-early 80s we learned a pretty coherent view of the world. Religion, and values generally, were private matters. The economy was capitalist, but that was OK, because the long-term trend was toward more Government intervention on behalf of the poor and defenseless and likely to stay that way. Individual rights--the right to birth control, abortion, sexual preference, and a virtually unlimited right of free speech--would continue to grow, with the First Amendment, which some of us suspected was the real religion in New Haven, casting its protective light over every person and every idea. Some of us suspected that this worldview was a little thin and (perhaps) hypocritical: for example, the supposedly liberal faculty contained one woman and no minorities, while the vast majority of the supposedly enlightened students seemed to wind up at corporate law firms. The election of Ronald Reagan, which seemed to contradict nearly all of the existing tendencies, was likewise a discordant note. But (with apologies to Harry Chapin) there were planes to catch and bills to pay, along with high-paying jobs awaiting: other than leaving a few petitions lying on the Dean's chair I don't remember complaining much.
This week's events showed just how far that comfortable worldview has deteriorated. It's not just that a populist conservative won Ted Kennedy's Senate seat in Massachusetts and put a temporary if not permanent end to the health care legislation. (Kennedy was so respected in law school that I remember a serious debate over whether we would take the blame if he, or a member of his family, got yet another woman into trouble.) As if to add insult to injury, the Supreme Court--displaying the very interventionist attitude that liberals used to love--put another nail in the coffin of campaign finance reform in the Citizens United case. That a then Yale professor and later Federal judge (Ralph Winter) was the brains behind the original challenge to campaign finance laws, in Buckley v. Valeo, made the irony all the more poignant.
It was strange, and not a little bit pathetic, to watch liberals try to "spin" the Massachusetts election into an argument for more aggressive pursuit of health care reform, followed quickly by an attempt to discredit the Supreme Court for (in their view) an overly expansive interpretation of First Amendment rights. It may be that they are right on a technical level. Citizens United is indeed a somewhat reckless (if also predictable) decision; and there is something odd about a State Senator who supported the Massachusetts health reform getting elected by opposing its Federal equivalent.
And yet it is the liberals' own hypocrisy that is largely responsible for these setbacks. Having tolerated, or even profited from, an economic system that rewards a few people (largely their own graduates) while leaving little for everyone else, they are now surprised to see the public rise up in a fit of entirely understandable, if at times misdirected, anger. Having created and sustained an absurd political system, in which wealthy or famous individuals and families could effectively buy political power but others were restricted by incomprehensible campaign laws, they are now shocked and surprised to see that system collapsed. Having taught their students that what mattered was not the substance of their values, but the freedom to express them, they are now surprised that the society is all freedom and no or very little substance.
The professors that we most respected in law school were the few who either retained their own personal values, like Arthur Leff or Bob Cover, or those (I am thinking of Marvin Chirelstein in particular) with an ability to retain their sense of humor and not take anything too seriously. For some unknown reason the first two of these died much too young. Here's hoping there are others like them out there . . . or at least someone who knows how to keep people laughing.