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I.INTRODUCTION: A
QUESTION OF DRIFT
PROFESSOR
SCHAUER's essay on constitutional positivism(1)
purports to clarify the terms of debate between positivism and
natural law. By its end, however, it has become clear that he has
been concerned all along with quite different matters. He wonders
whether debates between positivism and natural law, formalism and
antiformalism, or judicial activism and judicial restraint can ever
be settled in the abstract because the political and moral
consequences of these stances, programs, and theories change
radically over time. Some applaud the "natural law"
innovations of the Warren Court while criticizing those of the
Lochner Court; others celebrate Justice Holmes' positivism while
simultaneously denouncing that of Chief Justice Rehnquist. Formalism
sometimes looks good to us, yet at other points in history the
rejection of formalism looks even better. Chief Justice Marshall's
judicial activism of the 1820s is revered by liberals, while Justice
Peckham's deformations of the 1900s are condemned; Justice Brennan's
judicial creativity in the 1960s is extolled, while that of Justice
Scalia in the 1980s is disparaged.
Professor Schauer
is sensitive to these historical changes in political approbation and
blame. He does not attempt, as others have, to reconcile the many
transformations in intellectual fashion within a larger view that
justifies them all. Instead, he argues that "the alleged evils
of formalism, positivism, and a host of other widely castigated -isms
are evils, if evils they be, not acontextually, but because of
relatively time-specific, place-specific, and role-specific patterns
of social and political behavior imposed on the moral landscape."(2)
Yet this raises a
more difficult problem. Are there any legal theories or legal ideas
that escape this historical play? Is there any set of political or
constitutional principles that might remain as fixed standards for
all the others, and against which all others might be judged? This is
the question that lurks beneath Professor Schauer's dogged analysis
of positivism and natural law. Professor Schauer, after all, is a
scholar who, in an era in which antiformalism has become an academic
religion, has dared to note the many virtues of a formalist approach.(3)
He has regularly seen the value in what others consider valueless,
the pearl in the discarded oyster. And this naturally leads him to a
more general inquiry. Ultimately, Professor Schauer wants to know
"whether styles of legal argument, and forms of legal structure,
have some necessary and temporally indifferent normative political incidence."(4)
If they do not, Professor Schauer believes, the notion of theoretical
discussion based on abstract concepts must be reevaluated, for
"as social and political behavior changes, then perhaps so
should our view of the theoretical constructs within which we manage it."(5)
As I see it,
Professor Schauer's question is whether the ideas, theories, and
symbols we use to explain and justify the legal and social world have
a fixed political incidence, which escapes the vagaries of a changing
social context, and which can in turn be used to describe, evaluate,
and judge that context. I think this is an important question; in one
way or another it has been central to my own work on legal rhetoric,
semiotics and deconstruction. Indeed, I believe I can offer an answer
to Professor Schauer's question. The answer is no.
Styles of legal
argument, theories of jurisprudence, and theories of constitutional
interpretation do not have a fixed normative or political valence.
Their valence varies over time as they are applied and understood
repeatedly in new contexts and situations. I call this phenomenon
"ideological drift."(6)
Professor Schauer offers us an example of ideological drift at work.
The use of "natural law" (as opposed to positivist)
approaches to judicial review can, in different contexts, or at
different points in history, lead to quite different results, whether
this difference is defined in terms of progressive versus
conservative, or in Schauer's terms of results we like versus results
we do not like.(7)
A second example is the libertarian conception of free speech. Since
the 1920s leftliberals in the United States have tended to take
relatively libertarian views on free speech, while conservatives have
been more likely to balance the interest in free speech against the
interest in social order, the preservation of important social
values, and so on. In the last several years we have seen a gradual
and partial reversal of these positions in debates over regulation of
sexual and racial harassment, campaign finance, and pornography.(8)
A third example arises from the notion of racial equality. The
concept of the "colorblind" Constitution, offered by the
first Justice Harlan in 1896 as a progressive (and even radical)
argument against Jim Crow, has by 1992 become the rallying cry of
conservatives who seek to protect white males from racial oppression.
Ideological drift
in law means that legal ideas and symbols will change their political
valence as they are used over and over again in new contexts. This
description envisions an idea or symbol changing its political
significance over time while its content is held constant.
Nevertheless, we know that meaning is equally dependent on context.
Hence one might question whether it is really "the same
idea" whose political meaning has changed over time--for
example, whether the conception of free speech or racial equality
championed by liberals in 1960 is really the same as that defended by
conservatives in 1990. The possibility of such a dispute is equally
central to the phenomenon of ideological drift. Thus, there are
really two ways to think about the phenomenon of drift. The first is
to imagine the content of the idea as held constant and consider the
changing political consequences of the idea in changing contexts.
This formulation is implicit in Professor Schauer's approach. A
second and equally important way is to imagine the content of the
idea or symbol changing as the context surrounding it changes. It is
to see the content and meaning of the idea as inextricably
intertwined with the context in which it appears. This second
conception envisions drift as the product of a struggle over the
meaning and legacy of political and legal ideas. It sees all of the
key concepts of political discourse as potentially contested over
time, including the very ideas of liberalism and conservatism we have
just used to describe our previous examples of ideological drift.
Consider, for
example, the concept of racial equality. A contemporary liberal might
claim that conservatives who emphasize colorblindness have perverted
the notion of racial equality championed by Justice Harlan in his
dissent in Plessy v. Ferguson(9)
and vindicated in Brown v. Board of Education.(10)
They might argue that the test of colorblindness is merely a proxy
for the goal of true racial equality, and that over time fetishistic
emphasis on this proxy has formalized the concept of racial equality
and stripped it of its animating rationale. Conversely, modern
conservative opponents of affirmative action might claim that they
have preserved the true meaning of Brown while liberals have
perverted its meaning by demanding special treatment for minority
groups. Although the original conception of racial equality in Brown
was and remains worthy, they might argue, the idea has been carried
too far by zealous liberals, who have so transformed its meaning that
they now hold views closer in spirit to the opponents of Brown and
the defenders of Plessy.
The ideological
drift of the notion of "colorblindness" is actually the
result of a struggle over the meaning of the underlying concept of
racial equality, and over the legacy of opinions like Brown v. Board
of Education. More generally, ideas or symbols may appear to change
their political valence over time because groups have adopted
competing interpretations of relatively abstract ideas or symbols
used in previous debates--ideas like liberty, equality, and progress,
or symbols like the flag, the family, and so on. From competing
perspectives it appears either that the "true meaning" of
the idea or symbol has been preserved from revisionism, or that the
meaning has been distorted by groups who owe no fealty to its true
principles. Hence, we are likely to see the phenomenon of ideological
drift at work when individuals complain that "a good idea has
been taken too far," or that we must return to the "original
reasons" behind a doctrine or a symbol.
Note that the
ground of struggle can be either the definition of the abstract idea
or the values that underly or accompany it. In this respect the
ideological drift of the concept of "colorblindness"
differs from that involving the concept of "free speech."
In the case of colorblindness, liberals might claim that drift
results from the confusion of a proxy or symbol (colorblindness) with
a more important value that it at one time or in one context
represented (racial equality). They would argue that the proxy or
symbol must be discarded in order to preserve the underlying value it
represents, while their opponents would respond that colorblindness
is more than a proxy--it is what racial equality always requires.
Here the parties are not arguing about whether the meaning of the
term "colorblindness" has changed--they are arguing about
whether the term has become detached from the underlying concept of
racial equality, or whether it is a necessary element of racial
equality. In other words, they are arguing about what racial equality means.
The case of free
speech is slightly different. Contemporary left advocates could be
arguing that free speech, like colorblindness, is just a proxy for a
more valuable thing from which the proxy has become detached. But
they need not do so. They may argue instead that free speech is still
a valuable thing, but that the meaning of the term "free
speech" has been perverted by their political opponents; hence,
we need to return to the original meaning of this idea. In the view
of progressives, the political valence of "free speech"
appears to drift only because the meaning of "free speech"
has subtly shifted over time. Conservatives, they will argue, have
wrongly equated free speech with a formal right to speak, insensitive
to disparities in power and income. However, true free speech is a
substantive liberty that requires a realistic possibility of
communication with an audience, reasonable access to the dominant
forms of communicative technology, and reasonable safeguards to
prevent speakers from being unfairly drowned out by those with
disproportionately unequal economic power. Hence, guaranteeing real
free speech may require what from the standpoint of a purely formal
conception of liberty would look like regulation. Yet this appearance
is illusory, because the goal of such regulation is to vindicate the
substantive liberty of speech, just as labor regulations are
sometimes necessary to vindicate the substantive freedom of contract
of employees. Similarly, only under a cramped and overly formalistic
conception of speech could one confuse regulation of cross burnings
with regulation of speech. The left will argue that true freedom of
speech is the ability to speak free of a hostile working environment,
or free of fears of physical threat. Here, unlike the case of
colorblindness, the dispute is over the meaning of the term that is
said to "drift."
Of course, this is
not the only possible account that the left advocate could give. She
could decide that antipornography laws or racial harassment statutes
really are regulations of the freedom of speech, but that this right
must be balanced against other rights equally precious. At that
point, however, she has conceded that her opponent is the defender of
the freedom of speech while she is the proponent of regulation of
this liberty. She has, in other words, adopted the definition of
"freedom of speech" offered by her opponent, and thus ceded
the moral high ground that comes from being a defender of liberty.
Similarly, she may argue that affirmative action programs involve
unequal treatment based on race that is nevertheless justified by
pressing exigencies. In that case, she has accepted her opponent's
definition of "racial equality," with a concomitant
disadvantage in articulating her views and making them persuasive to
others. Because of these difficulties, it is likely that she will
contest the meaning of the abstract term, hoping that she, and not
her opponent, can gain the moral high ground.
Although my
examples measure changing political valences in terms of a spectrum
between "left" and "right," it is important to
emphasize that the concept of ideological drift does not require
this. Normative and political valences may change with respect to
many different types of evaluative schemas: left versus right,
cosmopolitan versus isolationist, assimilationist versus nationalist,
populist versus elitist, religious versus secular, and so on.
Moreover, the scope and content of all of these benchmark concepts
will be affected by the play of contextual change. The notions of
"left" and "right" or "liberal" and
"conservative" are themselves subject to drift, because
over time the positions taken by those who identify themselves (or
are identified) as conservatives and liberals tend to change. For
example, Alexander Hamilton often is considered a conservative, while
Thomas Jefferson often is viewed as a liberal sympathetic to the
egalitarian ideals of the French Revolution. Yet Hamilton supported a
strong federal government and government investment in the economy,
while Jefferson's party defended states' rights and opposed
government investment in public works. Jefferson's party defended
strict construction of federal powers, while Hamilton's heirs in the
Federalist party (as exemplified by John Marshall) defended an
expansive reading of the federal government's power under the
Constitution. This divergence from contemporary assumptions about
political alliances allowed New Deal liberals to extol the wisdom of
Hamilton and Marshall, while permitting conservatives to claim the
liberal Jefferson as one of their own.
Faced with these
complexities, one could claim that Hamilton was not really a
conservative and Jefferson was not really a liberal, or one can
acknowledge that the meaning and content of these political
orientations have changed over time. The same applies to current
debates about freedom of speech. One could insist that people who are
willing to regulate speech for egalitarian purposes are not really
part of the American left, or else one can acknowledge that
"left" positions (like those of the right) change over
time. Thus, we might say that the principle of relativity applies to
the metaphor of ideological drift. If from one perspective B seems to
be drifting away from A, from B's perspective it is rather A that is
moving away from B.
We can also
describe the metamorphosis of benchmark concepts like "left"
and "right" through our alternative conception of drift.
We can understand these transformations as the product of
intellectual and political struggle over the meaning of key political
ideas like "left" and "right" or
"liberal" and "conservative." As circumstances
evolve, different groups of conservatives--for example, libertarians,
religious conservatives, social conservatives, judicial
conservatives, and business conservatives--may find themselves
increasingly at odds over important public policy issues. Hence they
may also find themselves debating who are the true conservatives, and
who have departed from the conservative fold. The libertarian who
supports decriminalization of homosexual sodomy may claim that the
social conservative who opposes it is untrue to the conservative
principle of protecting individual choice, while the traditional
conservative may accuse the libertarian conservative of abandoning
principles of gradualism in her quest for rapid deregulation. The
benchmark concepts by which we measure drift--liberal and
conservative, populist and elitist, nationalist and
assimilationist--are no less subject to agonistic development and
alteration than the political and legal ideas they serve to measure.(11)
II.THE STRUGGLE
OVER REASONABLENESS AND THE TOOLS OF UNDERSTANDING
The above examples
suggest that the phenomenon of ideological drift is the result of a
struggle over the meaning of abstract theoretical ideas and symbols
that people use to understand the legal and social world and to
persuade each other about what should be done within that world. The
outcome of these struggles has consequences for theoretical
discussion and for political and legal practice because it frames the
terms of political debate and political thought. One of my favorite
examples is what Clinton Rossiter called the "Great Train
Robbery of American Intellectual History," in which laissez
faire conservatives of the late nineteenth century were able to take
control of the meaning of "liberty," "property,"
"equality," and "progress"--terms used by the
Jacksonians, abolitionists, and free labor advocates before the Civil
War--and define them in terms of a conservative agenda.(12)
Thus liberty became the liberty to contract, equality became the
formal equality of contracting parties, and progress became the
ability to accumulate wealth. Opponents of laissez faire thus could
be framed as paternalistic and opposed to liberty and progress. In
the same way, there is currently a struggle over the meaning of
racial equality in debates over affirmative action, as well as a
struggle over the meaning of freedom of speech in debates concerning
campaign finance, sexual and racial harassment, and access to mass media.
These intellectual
struggles are much more than dictionary disputes. If racial equality
is successfully defined as a formal equality, or if free speech is
defined in terms of a formal liberty, this affects the way that we
think about issues of racial justice and the bounds of expressive
freedom, and frames the sort of arguments that can be plausibly
offered about these issues. The side whose positions do not fit the
victorious conception can be more easily accused of giving short
shrift to racial equality and expressive freedom, of trading these
important values away for other less important goals. Simultaneously,
the victorsin these disputes can style themselves as defenders of
racial equality and expressive liberty; they will gain the rhetorical
high ground that comes from being a defender of the good and the just.
Abstract concepts
used in theoretical discussion are part of the tools of our
understanding of the social world. However, these tools do not exist
simply as givens; they are fought over using the tools of
understanding. The parties fight on a battlefield in which the shape
of the terrain itself is a potential prize. Ideological drift, in
this sense, is the effect of a deeper cause--the struggle over
cultural and political meaning through the practice of politics and
persuasion, whose reward is ideological and rhetorical power. It is
the use of reason to shape the historical contours of reason, a
battle for control over cultural form and intellectual agenda.
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III.POWER IN
REASON AND THE POWER OF REASON
The dominant
metaphors used in this description of ideological drift are those of
battle and struggle. These metaphors are misleading, however, in
several important respects. First, they emphasize the agonistic
element of theoretical discussion when in fact much theoretical
discussion and development of ideas is cooperative. Culture is an
enterprise of collective writing and rewriting, of thinking and
rethinking. The agonistic nature of intellectual dispute may often
mask a deeper unity of purpose. We may find, even in the most
adversarial context, a certain degree of implicit cooperation about
what constitutes an argument, what is an appropriate appeal to
reason, and so forth. An agonistic enterprise is invariably also a
communal enterprise, for without a shared basis of intellectual
dispute, no argument could be convincing, no victory could be gained,
no agenda could be set.
Second, the
metaphors of combat may wrongly suggest that intellectual struggle is
simply a struggle for power as opposed to a search for truth or
reason. It is admittedly tempting to assume that parties who debate
the meaning of racial equality are not really interested in truth,
but are only interested in gaining benefits for themselves or their
allies, and that the ideas and concepts they employ in this endeavor
are merely instruments towards this end. This is an instrumental
conception of reason, in which reason is the mere servant of
political power. This view of reason and power is deeply mistaken. It
is as mistaken in its own way as the assumption it rises to
contest--that reason and power inhabit separate spheres of human
life, and that a reason that has no connection to power can and must
nevertheless act as a necessary check on power.
The instrumental
conception of reason is often tied to the claim that reason is a
historical artifact, but the claim that reason is a mere servant of
power misunderstands the historical basis of reason, and, above all,
the meaning of living and thinking within a culture. The easy
assimilation of reason to an instrument of raw power forgets that
debates over abstract concepts like equality and liberty are always
simultaneously attempts to understand and define what is more and
less reasonable. They are collective exercises in the historical
creation and development of reason. Viewed through a purely
instrumentalist lens we forget the extent to which intellectual
disputes are exactly what they purport to be--attempts by the members
of a culture to discover and name what is true and false, better and
worse, efficacious and inefficacious.
At stake in the
debates over equality and liberty are the tools of understanding we
use to make sense of the social world around us. These tools are not
mere implements that we can take up and put down at will--they are
part of us, as much as the tools we call our arms and legs. To
identify the struggle for meaning as epiphenomenal, as the mere mask
of a deeper and more real struggle for power, forgets that the
ability to determine what is reasonable and unreasonable, what is the
better and the worse argument in a culture, is perhaps the most
important power of all. It is power not over the body but the soul,
not over the material conditions of life but the modes of
understanding those conditions. The struggle over meaning is the
struggle over the forms and contours of thought, the tools of
understanding which we internalize and which constitute us as human
beings who live at a particular historical moment in a particular
culture. These tools of understanding form the grooves in which our
thought travels when we grapple with the social and moral issues of
our times. Those who shape and control these grooves, those who
succeed in fashioning the tools of understanding of a time and place,
have enormous power over human beings. That is because the forms and
contours of our thought, the tools of our understanding, are part of
us; they constitute our historical existence as human beings.
Thus, much is at
stake in defining the plausible and the implausible, the persuasive
and the unpersuasive, the rhetorically efficacious and inefficacious.
At stake is the definition of the contours of reason and the
reasonable. Herein lies the poverty of the instrumentalist conception
of reason, with its easy equation of reason and raw political power.
Reason is no mere slave to the power of individuals or groups.
Indeed, we might rather think that individuals and groups are slaves
to reason, that same reason which is shaped and articulated by and
through history. Reason is a mighty power; we are simultaneously its
begetters and its servants.
A final problem
with the description of ideological drift in terms of struggle over
meaning is that it may suggest too simplistic an account of agency.
Imagining debates over affirmative action as merely instrumental to
the achievement of power for particular groups assumes that these
groups have some sort of control over what might count as reasonable
or unreasonable, that they create reasonableness to suit their
preexisting aims and intentions. But it is quite the other way
around. Individuals and groups need the tools of understanding to
understand and articulate their interests and goals. They do not
stand outside of historical reason and decide what it shall be. The
tools of understanding cannot be taken up and put down at will--if
they have power over others they equally have power over the persons
who seek to use them. No one can use reason as a mere instrument
distanced from the power it wields; it has power only because it
already has shaped the available ways in which it can be wielded.
Hence individuals
and groups who struggle over the meaning of abstract ideas cannot
fully control what will be considered a reasonable and unreasonable
interpretation of them. Indeed, the arguments that they make to
persuade others are shaped by what they already believe to be
reasonable and unreasonable because of their participation in a
culture of argument. That is why it is misleading to claim that a
conception becomes dominant because a particular person or group of
people desire it so; rather the reason that they desire it so is
caused by the context in which they make their argument. "Racial
equality" does not acquire a meaning because some group of
individuals decides that it shall signify one thing as opposed to
another; rather it is because the term is already freighted with
meanings that have power over individuals that arguments about its
proper interpretation must be deployed in a certain way. Reason,
rather than located in the desires of a particular group, is the
field of cultural power. It is the terrain in which groups find
themselves and their opponents. Reason determines the shape of the
struggle over the right and the reasonable, and in the course of this
struggle, it is altered. It is the source of struggle, and the result
of struggle, but does not exist merely for the purposes of struggle.
Indeed, it might be more correct to say that struggle exists for the
purposes of developing reason.
IV.THEORETICAL OPPORTUNISM
We now turn to the
most interesting and controversial part of Professor Schauer's
discussion of positivism and natural law. Professor Schauer suggests
that if a "rules committee" or a set of "systems
designers" were asked to design a set of rules for judicial
behavior that would maximize morally optimal results, they might
decide that different sets of rules would apply to different periods.(13)
The committee might conclude that in one era judges should be
instructed to use "natural law" justifications for the
judicial role, while in another they should be told to employ
"positivist" justifications.(14)
The use of
historically variable justifications for legal practice need not be
confined to theories of judicial review. We might extend the theory
further, for example, by applying it to other aspects of Professor
Schauer's work. Professor Schauer has been famous for the claim that
we give extraordinary constitutional protection to speech because we
generally do not trust majorities (or their designated governmental
agents) to make appropriate judgments about what types of speech
should be regulated and under what conditions.(15)
He argues that the dangers of corruption, overreaching, and
self-interested behavior, present in all forms of majoritarian
regulation, are especially great when it comes to the regulation of speech.(16)
Yet what Professor Schauer has said about judicial practice may hold
equally well for legislative practice--there may well be historical
periods in which we think legislatures can be trusted to make
regulatory decisions about expression just as there may be periods in
which we are confident that judges will do the right thing if allowed
to give "natural law" rhetoric fuller play. In those
periods, perhaps, certain types of regulations of speech should
receive correspondingly less constitutional scrutiny. I do not raise
this hypothetical because I believe that Schauer would necessarily
apply his argument to constitutional protections of speech (although
some of his recent writing suggests that he might not be wholly unsympathetic).(17)
I raise it because I wish to point out that the notion of different
principles of decision for different historical periods can arise in
many different settings and contexts. Professor Schauer's argument
for varying rules of judicial practice is merely the tip of a very
large iceberg.
I suspect that
what most people will find troubling about Professor Schauer's
suggestions about judicial review is that they seem theoretically
opportunistic. By "theoretical opportunism," I mean
unashamedly offering different and even inconsistent sets of
standards or principles to justify one's actions in different contexts.(18)
Taken to its logical conclusion, it is a policy of cheerfully
invoking whatever set of standards and principles justify the outcome
one happens to desire. The theoretical opportunist does not feel
bound to any particular set of standards or principles over time. If
they become inconvenient, or lead in directions she does not like,
the theoretical opportunist simply abandons them, like a set of old
clothes that she has outgrown or that she no longer fancies. The
problems of this approach are self-evident: the theoretical
opportunist seems unscrupulous, unprincipled, undisciplined, and unconstrained.
Professor Schauer
might avoid the charge of theoretical opportunism in the following
way: he might say that he is merely describing rules that an
imaginary committee might offer to regulate judicial practice, given
the fact that many different individuals will hold judicial office.
The rules committee members themselves are not being opportunistic
about what they believe is right and wrong--they know what they want
and they are merely offering differing standards instrumentally in
order to obtain a particular effect from the myriad of persons who
will hold judicial office over time, and who may lack sufficient
foresight, circumspection, judgment or ability. The results judges
will reach under a set of historically changing directives will
conform to a single atemporal standard of morally optimal results
better than any constant set of directives given to a changing
federal judiciary.(19)
In this way
Schauer might contend that his is merely an institutional solution to
an institutional difficulty. His rules committee is not claiming that
there is no atemporal set of standards of judicial practice that
might be properly applied over time. He is not suggesting that the
committee is not faithful to some set of timeless principles of
justice and right. He is claiming merely that, given the vagaries of
judicial appointments, a changing set of directives to different
judges in different eras is more likely to produce the greatest
number of morally optimal results. So Schauer's suggestion for
changing criteria of judicial practice is not really theoretical
opportunism, but is merely a set of prophylactic measures designed to
produce the results that would be reached if a single correct and
principled theory of judicial practice were applied correctly by
judges over time.(20)
Yet a critic might
press further. Professor Schauer has created his imaginary committee
because he believes that ideological drift is a serious problem for
constitutional argument. He warns us that "styles of legal
argument, and forms of legal structure," may lack a
"necessary and temporally indifferent normative political incidence,"(21)
so that "as social and political behavior changes, then . . . so
should our view of the theoretical constructs within which we manage it."(22)
Yet shouldn't this admonition also apply to judgments about the
"morally optimal results" that the rules committee employs
to plan its long-term strategy for judicial practice? Won't the
concepts and standards the committee uses to determine and measure
what are the morally optimal results--and hence the best judicial
philosophy for an era--also be subject to ideological drift? Suppose,
for example, that the committee formulated its rules of judicial
practice in 1954, and thought an important moral goal was to preserve
colorblindness in governmental decisionmaking, on the grounds that
this preserved racial equality. Couldn't the ideological drift of the
idea of colorblindness affect our views about how well the committee
has drafted the changing rules of judicial practice? Perhaps the
shifting standards envisioned by the committee will lead to more
colorblind decisionmaking by government officials, but is this
necessarily the morally optimal result?
Indeed, if none of
the committee's principles and standards of measurement of what is
morally optimal escape the possibility of ideological drift, should
we not take this into account in giving the committee the power to
draft rules for others? If so, do we need a metacommittee overseeing
the committee that would take into account how changing contexts
affect the political valence of the principles and standards the
rules committee thinks are morally optimal at any given point in
time? And what of the ideological drift that will befall the
principles and standards employed by this metacommittee? An infinite
regress quickly looms before us.
Professor Schauer,
the critic will argue, cannot have it both ways. He cannot claim that
ideological drift affects the practice of judges but not the practice
of his imaginary judicial rules committee. There is no group of
persons whose judgments of political morality escape the play of
drift, so that they confidently can be left in charge of arranging
sequences of rules for others whose views suffer from this infirmity.
Drift happens. It happens to all of us and to all of our abstract
principles and policies. To vary the metaphor further, normative
argument is a boat we all are in together, and that boat is always
drifting. Schauer's imaginary committee hopes to plant itself outside
the flow of historical forces so that it might direct and control
them. The very assumption that it can stand outside of a history that
affects all other mortals reflects either colossal naivete or
colossal hubris on the part of the committee. We do not control
historical reason; it controls us. Like all examples of hubris, this
one is sure to lead to unexpected results and perhaps even to tragedy.
Perhaps, then,
Schauer's theory runs deeper and farther than even he has expected.
Is he willing to accept the full consequences of his suggestion that
styles of legal argument do not have a fixed normative political
significance over time? If so, then his rules committee might feel
the need to explain and justify which outcomes are morally optimal
differently at different times. It might be forced to offer varying
justifications and principles of decision not as a prophylactic set
of directives given to others who lack sufficient ability and
circumspection to know the one unchanging way, but as a faithful
description of its own changing moral and political commitments. It
would have to accept that it could not escape the play of ideological
drift, that it also might have to change its mind every now and then
on its guiding principles.
Herein lies the
charge of theoretical opportunism, which Schauer cannot avoid by
interposing institutional considerations and prophylactic rules. If
all of our theoretical conceptions may run out of steam, stagnate, or
drift, should we not be prepared to modify or even discard them in
order to hold fast to what we think is right--recognizing all the
while that what we think is "right" is in part determined
by our more abstract theoretical commitments which are subject in
turn to ideological drift?
This, the critic
says, will not do. It too easily tempts us to change our theoretical
commitments whenever we find them uncomfortable or inconvenient.
Schauer's suggestion really does lead us down the road to theoretical
opportunism and unprincipled behavior. We cannot be lulled by the
siren call of expediency to do whatever seems right at the time.
Principle must and should constrain us; without its constraint, great
evils as well as great goods may ensue.
It is interesting
to note how the positions of the so-called theoretical opportunist
and his imaginary critic have inexplicably and ironically reversed
themselves (or perhaps drifted). Now it is the critic who demands
that we adhere to an unchanging principle as a prophylactic measure,
for if we do not do so, there will be no logical stopping point on
the way to immoral expediency. Now it is the defender of principle
who demands that we cannot always do whatever seems "right"
in an unreflective sense of that word. To act out of unchanging
principle is sometimes to accept results that we do not like, just
because they are demanded by the application of principle. To act
according to unchanging principle is sometimes to adopt the wrong
decision because it is right to do so. The paradox is complete: if
principles did not sometimes cause us to do things we did not think
best, we would not know that we were guided by principle rather than
our own fiat or passions.
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V.OPPORTUNISM AND
IDEOLOGICAL DRIFT
Does ideological
drift necessarily lead to some form of theoretical opportunism?
Obviously, it is always possible for people to use moral and
political arguments opportunistically--to make arguments regardless
of their consistency with previous positions and regardless of
whether one believes in them. However, the question before us is
whether the forces of ideological drift must make opportunists of us
all, because no articulable set of principles can continue to capture
our moral judgments adequately as historical contexts change. In
answering this question we must not be unduly influenced by Professor
Schauer's example of a constitutional rules committee. This committee
is no more than a fictional device to dramatize the problem of
ideological drift. It cannot be taken as a realistic account of how
people might actually experience or respond to this drift. Schauer's
committee appears to stand outside the forces of history in order to
control and direct them. But, as argued above, to exist in a culture
of reason is also to be affected by the historical changes that
produce drift. Thus, in order to deal with the problem of
opportunism, we have to consider how morally sincere individuals
experience conflicts of principle that are created by a changing
cultural and political context. We must consider the internal as well
as the external aspects of the phenomenon of drift.
In addition,
Schauer's hypothetical relies on a very limited conception of reason.
The members of his rules committee offer public principles for others
to follow and believe in, but they themselves do not believe in the
principles they espouse. The positions of "natural law" and
"positivism" are just arguments employed at a given time to
persuade others of their proper role; they are strategically
alternated to produce what the committee regards as appropriate
results. This conception of reason is purely instrumental--reasons
are tools used by some to persuade or control others, but they are
tools which do not affect or persuade the persons who wield them.
Indeed, this characterization leads directly to the charge of
opportunism. Nevertheless, this view of reason is defective and
incomplete; it is inconsistent with the theory of historically
created and constituitive reason that underlies the phenomenon of
drift. Discussions of opportunism that presuppose this view of reason
are therefore likely to be misguided.
If we wish to
understand the consequences of ideological drift for the possibility
of principled political discourse--by which I mean discourse
according to principles that we use to persuade others and that we
also believe in--we must try to grasp the internal experience of
making political and legal arguments within a historical experience
of drift. We must conceive of how people who live beneath its reign
might or could respond to it. To do this, we must recognize the power
that a historically developed culture of reason has over people who
live within that culture.
I argued above
that the theory of ideological drift is not simply a theory about the
changing valence of political and legal ideas. It is also a theory of
cultural meaning and cultural power. Individuals and groups struggle
over the meaning and content of abstract symbols and ideas, and
through this process, they re-create the tools of understanding that
they use to make sense of the social world and that constitute them
as members of a culture. The creation and re-creation of the tools of
understanding, the meanings of words, and the boundaries of the
reasonable and the unreasonable, are the ultimate sources of
ideological drift. Ideas do not drift by themselves. Drift is always
the result of human activity. It is the result of continuous attempts
to understand and describe the world, and to persuade others about
the right and the reasonable, the just and the efficacious, in a
changing historical context.
Thus, the theory
of drift is more than a theory about the changing content of
political and moral ideas. It is a theory about the constitution of
selves in a shared yet changing political culture. It is a theory
about the changing tools of understanding which constitute and have
power over the self in a culture. It is a theory about the nature of
reason--a historical activity of human beings engaged in articulation
and evaluation, persuasion and argument. Finally, it is a theory of
power--the power that the tools of understanding have over people who
engage in acts of understanding, the power that historically
articulated reason has over those who reason in history.
Schauer's proposal
contemplates none of this. His rules committee chooses principles for
others to follow that the members of the committee do not believe in.
His hypothetical rests on a view of individuals who can stand outside
of the force of culturally created reason, who can wield this force
on others but remain utterly unaffected by it themselves.
This conception of
reason and subjectivity--and not the fact of ideological drift--is
the real basis of the charge of opportunism. And this instrumental
conception of reason is deeply flawed. We are not in control of what
we find convincing and unconvincing. We are constituted by the
culture that we collectively make through our acts of reason and
persuasion. Reason has force only because it has a common power over
all the members of a culture. Rhetoric can have its effects on others
only because it already has effects on us. The masters of argument
are also the servants of rhetoric; the kings of persuasion are also
the pawns of reason.
It is no doubt
tempting for lawyers to view reason primarily instrumentally--as an
instrument used to persuade and control. This conception of reason is
implicit in the notion of the lawyer as a "hired gun," who
seeks to convince and control others without owing fealty to the
principles she espouses. Thus, it is probably not accidental that the
problem of opportunism, and the instrumental conception of reason
that gives rise to it, appears in a discussion among persons
professionally trained as lawyers. After all, it is the job of
lawyers to make arguments they do not believe in, and to defend
interests that are not their own. It is the job of the lawyer to
argue in one way for client A on Monday, and in the opposite way for
client B on Tuesday.(23)
The problem of opportunism cannot be very far from the mind of the
lawyer, hard as she tries to avoid thinking about it.(24)
Perhaps there is
no professional difficulty in lawyers arguing for different
institutional roles for courts at different periods in American
history, because there is no professional difficulty in their doing
so on successive days for different clients.(25)
Nevertheless, the lawyer's conception of reason is colored by her
special and limited social role as advocate. The position of the
"systems designer" or the political theorist is not the
same as the lawyer, nor can it proceed on the same conception of
reason. The political theorist's use of reason is not an
opportunistic use of the available means of persuasion to further the
interests of clients whose values she may privately deride or
disdain. Rather, it is the articulation of her own beliefs about the
good society and the best means to achieve it. Unless we are
deliberately trying to deceive others, or are representing clients in
a socially sanctioned role as their advocate, we believe in the
arguments we make. We believe in their plausibility and
reasonableness, not merely to others, but to ourselves.(26)
We are not distanced from our principles; indeed we are constituted
by them. They are the means by which we reason. So the experience of
drift does not simply cause us to change our rhetorical strategy.
Drift also creates a moral tension within us, a tension that does not
arise in the hypothetical person who uses arguments without being
affected by them. The internal experience of drift is the recognition
that principles we believe in are leading us to concrete judgments we
feel are inequitable, are taking us in directions we sense are wrong.
How we respond to that tension is always shaped by the fact that we
believe in the principles we use to make moral and legal arguments,
and, more importantly, that we will judge our previous beliefs in
light of our present ones.
Consider, for
example, a person who has previously supported a libertarian theory
of free speech, and now finds herself increasingly drawn to campaign
finance reform and regulation of racial and sexual harassment. She
can report her experience in many ways, but each differs greatly from
a purely instrumental conception of reason. First, she may conclude
that she has changed her mind, and that her earlier principles were
incorrect. Unlike the members of the imaginary rules committee, she
acknowledges that earlier decisions using those principles were
wrong, and that she should have decided them differently.
Second, she might
see her experience as the gradual clarification of her true beliefs.
"My use of libertarian principles," she might argue,
"was specific to a particular context; these arguments were
merely a proxy for a deeper, more accurate set of principles that
better account for what I now see as the proper solution to these
questions." Perhaps a few of her earlier positions will turn out
to have been wrong, but most were not.(27)
She experiences herself as refining her principles and discarding
proxies for the true principles of decision, which are gradually
revealed through experience.
Third, she may
view herself as having been misunderstood by her audience. Perhaps
she has always seen herself as one who balances between competing
principles. "In explaining my position," she notes, "I
have simply articulated whichever principle was the stronger, so it
may have appeared that I was being inconsistent. In fact, I was not;
my statements were taken out of context."
Finally, she may
experience herself as not having changed her views at all. She may
argue that she has always believed that free speech required a
substantive rather than a formal liberty of expression. It is rather
the audience's view of freedom of speech that has changed and not her
own. They have distorted the true meaning of free speech and imposed
this meaning upon her, claiming that she has changed her views. But
they are wrong; she has been consistent all along.
In each case, the
subject embedded in a culture of reasoned argument does not
experience her response to drift as the deliberate and instrumental
adoption and rejection of principles and policies in order to
persuade whatever audience she may need to convince or control. The
person who does imagine her response to drift in this way may well be
called an opportunist, and deserves the name.(28)
But the sincere individual who lives, as we all do, in the currents
of ideological drift, does not perceive her beliefs in this way. She
does not see them as clothes that may be put on or discarded as
fashion dictates, as disguises to be adopted and abandoned like a con
artist who would defraud an unsuspecting victim. Her beliefs are
neither weapon nor hoax, neither stratagem nor subterfuge. They are
her commitments, and as commitments they are not external to her but
reside within her. This individual has many possible responses to the
tension produced by ideological drift: she may believe that she has
changed her mind, that she gradually has come to understand more
clearly what she always has believed, or that her principles and
commitments have remained constant, however much they may have been
misunderstood by others in changing contexts. But in no case is she
an opportunist. In each case she believes in her reasons, because she
reasons through her beliefs.
Nevertheless, one
might object, what about the person who claims that she has remained
constant in her beliefs when all around her claim that she has
changed her principles? Is this person not simply deluding herself?
Is she not simply an opportunist who is unwilling to acknowledge her
opportunism? In fact the matter is much more complicated, for, as I
shall now argue, the concept of opportunism is not free from the
forces of drift that give rise to the charge.
What appears to be
theoretical opportunism may turn out to be so only from a perspective
hostile to that of the accused. One reason why people appear to
change their theories of justification is that they have been on the
losing side of a struggle for control of the meaning of a key
political idea. Having lost control of the meaning of racial equality
to the proponents of colorblindness, liberals endorse what from the
perspective of the victors looks like invidious discrimination
against whites. Having failed to convince the public that real
freedom of participation in the political process is best protected
by campaign finance regulation, liberals appear to have shifted away
from liberty and towards statist social control of individual rights.
To call this
theoretical opportunism, one must accept a number of claims. First,
one must accept that the winners of the struggle over the meaning of
racial equality are right that racial equality means colorblindness,
and that the losers were wrong in thinking that colorblindness was
only a proxy that became separated from the true meaning of racial
equality because of changing historical circumstances. Second, one
must agree that because the winners carried the day, their concept of
racial equality as colorblindness really is the original concept that
they and the losers fought over, and that to accept the losers'
conception of racial equality would be to pervert or alter the
concept. Third, one must acknowledge that the winners prevailed
because they had the better argument and not because they were more
powerful in any other sense of that word.
If one does not
accept these three assumptions, if one believes that the concept of
"racial equality" has been altered, stripped of its
original context, divorced from the set of assumptions that made it a
force for good--in short, if one believes that its current meaning
has more to do with reasons of power than the powers of reason--then
it will not be clear which side is being opportunistic. Perhaps it is
the winners who are the real opportunists and the losers who are the
true exponents of principle. The uncertainty and difficulty of these
issues renders the question of opportunism definitively indefinite
and the question of unprincipledness decidedly undecidable.
It should be clear
by now that the concept of opportunism itself does not stand above
the forces of drift, dispassionately distinguishing between
principled and unprincipled rhetorical combatants. It can also be a
weapon wielded by the combatants, who seek to gain rhetorical control
and the high ground it offers and then use that victory to label
their opponents as not only mistaken but devious, not only wrong but
unprincipled. What is called "opportunism," then, may not
be the subversive stratagem of the rhetorically victorious but a
public brand placed on the rhetorically vanquished.
As I have tried to
argue in this essay, the concept of ideological drift carries with it
a distinctive conception of reason--an agonistic yet communal
evolution of shared tools of understanding, a historical project of
developing and naming the better and the worse argument, the
boundaries of the plausible, and the realm of the reasonable. If we
acknowledge that the tools we use to understand the legal and social
world are just that--tools useful for the purpose at hand, but which
may prove to have quite unexpected consequences as contexts
change--ideological drift and the apparent changes in principled
commitments it engenders need hold no terrors for us. To recognize
the effects of drift is no more than to engage in a pragmatic and
sober assessment of the limited powers of human reason. It is to
accept the tool-like character of our understanding, the agonistic
nature of our culture, and the frailty of human moral conceptions
clothed as timeless principles. Surely the phenomenon of drift must
humble all those who claim to be the champions of reason, but surely
there is some advantage to that intellectual humility.
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Notes
Charles Tilford
McCormick Professor of Law, University of Texas at Austin. My thanks
to Sanford Levinson for his comments on a previous draft.
1.
Frederick Schauer, Constitutional Positivism, 25 CONN. L. REV. 797 (1993).
2.
Id. at 827.
3.
Frederick Schauer, Formalism, 97 YALE L.J. 509 (1988).
4.
Schauer, supra note 1, at 828.
5.
Id at 827.
6.
Various discussions of ideological drift appear in J.M. Balkin,
Ideological Drift, in ACTION AND AGENCY 13 (Roberta Kevelson ed.,
1990); J.M. Balkin, The Promise of Legal Semiotics, 69 TEX. L. REV.
1831 (1991); J.M. Balkin, Some Realism about Pluralism: Legal Realist
Approaches to the First Amendment, 1990 DUKE L.J. 375 (hereinafter
Balkin, Some Realism ). Recently, Professor Kathleen Sullivan has
offered some useful discussions and examples of drift in Kathleen M.
Sullivan, The Supreme Court 1991 Term: Foreword: The Justices of
Rules and Standards, 106 HARV. L. REV. 22, 103-04 (1992); and
Kathleen M. Sullivan, The First Amendment Wars, THE NEW REPUBLIC,
Sept. 28, 1992, at 35-40.
7.
It should go without saying that these are not identical distinctions.
8.
See Balkin, Some Realism, supra note 6. This statement must itself
be subject to numerous qualifications that merely demonstrate the
pervasiveness of ideological drift. As Mark Graber and David Rabban
have recently noted, before the 1920s the American left (however that
curious concept is defined) was decidedly cool and even occasionally
hostile to what we would today regard as free speech ideology;
conversely some late 19th century laissez faire libertarians (whom
today we would regard as conservatives) were much more supportive.
See MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF
CIVIL LIBERTARIANISM (1991); David M. Rabban, The Free Speech League,
the ACLU, and Changing Conceptions of Free Speech in American
History, 45 STAN. L. REV. 47 (1992).
9.
163 U.S. 537 (1896).
10.
347 U.S. 483 (1954).
11.
We can also describe the concept of drift in terms of fragmentation
of positions that at one point in history were thought to be
naturally allied. Suppose one believed that there was a coherent
conservative position that combined (1) preference for free markets
and hostility to economic regulation, (2)coolness towards
redistributive social programs, (3) opposition to greater liability
in tort, (4) comparatively statist views on non-economic civil
rights, (5) support for state enforcement of traditional conceptions
of morality and the family, (6) preference for states' rights over
federal power, (7) a limited conception of judicial power, and (8)
support for federal executive power over
congressional
power. At one point these positions might seem to be naturally allied
with each other--together one might think they offered a portrait of
a stereotypical conservative. But this portrait is evanescent. As
time passes, new issues arise in which these positions seem to
conflict with each other. Different groups of conservatives go their
separate ways on these issues, and this leads to disputes over who
the real conservatives are. We can describe this either as a
fragmentation of an alliance of ideas or a particular group of
persons who hold these ideas. The theory of ideological drift
contends that these alliances are not natural but artificial, not
permanent but contingent. It concerns itself with how the alliances
of both ideas and persons will fragment, separate, and reconstitute
themselves over time.
12.
CLINTON ROSSITER, CONSERVATISM IN AMERICA 128 (1962).
13.
Schauer, supra note 1, at 819-20.
14.
Id.
15.
See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 81-86 (1982).
16.
Id.
17.
See Frederick Schauer, The First Amendment as Ideology, 33 WM. &
MARY L. REV. 853 (1992); Frederick Schauer, Uncoupling Free Speech,
92 COLUM. L. REV. 1321 (1992).
18.
See Schauer, supra note 1, at 820 (asking rhetorically whether it is
"opportunistically dishonest" to "create one set of
rules for those judges whose decisions we think likely to be morally
misguided, and another for judges whose decisions we think likely to
be morally correct.").
19.
Id. at 820-21.
20.
To be sure, this institutional judgment might be flawed, but the
terms of that debate would be about efficacy, not opportunism. For
example, Professor Schauer the First Amendment theorist might counter
that the best prophylactic rule is a general predisposition to strike
down content-based regulation of speech, regardless of the civic
virtue of the legislature that passes it; attempts to vary the rules
of constitutional scrutiny over time will be too difficult to manage
in practice. In a similar fashion, one might argue that a rule of
judicial practice that did not vary with the times was the best
approximation to morally optimal results, and that attempts to
"fine tune" the practice of judicial review would be
unlikely to succeed. The analogy is to the debate between monetarists
and Keynesians on fiscal policy. The monetarist might reject a
Keynesian approach that varied government taxing and spending to
bolster the economy, arguing that one should instead adopt a uniform
policy of keeping deficits low and the money supply constant.
21.
Schauer, supra note 1, at 828.
22.
Id at 827.
23.
I am indebted to Sanford Levinson for this point.
24.
And, of course, the problem of the lawyer as hired gun demonstrates
in another form the poverty of the instrumentalist conception of
reason. Lawyers do not ultimately succeed in being hired guns
unaffected by their task. First, they cannot fully shape the contours
of what is reasonable and persuasive. They must tailor their
arguments within an existing culture of reason. Second, and more
important, they cannot fully distance themselves from the act of
persuasion; the practice of making arguments affects them in ways
they cannot fully control. Advocacy has power over the advocate as
well as the audience. One way that lawyers deal with the problem of
opportunism is to come to believe in the arguments they make on
behalf of their clients. For example, defenders of tobacco companies
may come to believe that the hazards of smoking really have not been
demonstrated sufficiently. Of course, this is a solution to the
problem of opportunism only if one believes that reduction of
cognitive dissonance by itself counts as a solution. Moreover, it
cannot serve as a solution for the lawyer who continually represents
clients with contradictory interests. Such a lawyer is more likely to
come to believe in the process rather than the client--that zealous
representation of whatever client is before her is adequate
justification for her actions. The repeated experience of being a
hired gun causes her to believe in the propriety of being a hired gun.
25.
But see John S. Dzienkowski, Positional Conflicts of Interest, 71
TEX. L. REV. 457 (1993) (noting possible difficulties under existing
doctrines of professional ethics).
26.
And as noted above, even the advocate often comes to believe in what
she advocates.
27.
Implicit in this view is the assumption that most of her previous
decisions will have been correct; if too many are proved wrong, then
she must admit that she has not refined her principles but changed them.
28.
Perhaps this is one source of the unsavory reputation of lawyers
among the general public.
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