Discussant: Vincent Blasi
Rough periodization of US democratic culture: Civic republican democracy gave way in the New Deal to pluralist interest group democracy; less focus on the common good but also more participation of people who were excluded from the earlier concept of republican democracy and defined out of the common good. After WWII, gave way to consumer democracy—pluralism became more economic and pursuit of one’s self interest was further legitimated and elevated. Now: Democracy, Inc. characterized by political dominance of large, often multinational, corporations.
Interest in understanding modern conservative jurisprudence. Claim is that democratic culture developments impact conservative thought, which then affects conservative jurisprudence. Thumbnail: these developments led to a reaction. New Deal/inclusiveness was a defeat for conservative thought; reaction took two different forms that Feldman says are in tension. Traditionalism: call for moral clarity, but also libertarianism: an unsteady coalition.
If you think of the bad tendency test as about harm control, it wouldn’t necessarily follow from civic republicanism, but if you think of it as a deliberately nonempirical test allowing you to bring in claims about harms such as moral harms or diminished patriotism, it’s not too much of a stretch to ID bad tendency test with the claim that gov’t should have the authority to regulate speech to advance moral values or police for heresy/regulate ideas as such. It’s a huge move to go from that notion to saying that you can only regulate ideas when properly linked to harm; something we take for granted today. Feldman identifies this with the move from civic republicanism to pluralist interest group democracy, which has no fixed limits to the size or scope of gov’t; politics is about deciding and remaking the role of gov’t.
What does consumer democracy add? Feldman’s claim is that it takes the idea of legitimating self-interested political behavior and gives it more an economic spin—not just competing visions of the good society, but me first. This evolves into Democracy, Inc. where small business no longer plays a significant role, nor does individual consumer choice from a wide range of truly different options. Much greater dominance from large economic units, and more attention made feasible by their size to entering the political marketplace.
Kennedy campaign was qualitatively different in use of modern PR techniques to win an election; never been the same since. Democratic microtargeting for Obama was a reason (the reason?) he won. Whether you’re happy with that or not, it’s part of Democracy, Inc.
Feldman is troubled by the effect on conservative thought. Strong reaction to the New Deal. If your focus is the SCt, the immediate period of New Deal dominance doesn’t involve conservative Justices. Would like to see more evidence of conservatives being interested in civil rights, as Feldman suggests. Cold War: traditionalists sought moral clarity and viewed it as a war of ideas; libertarians hated communism as big government. Tensions weren’t exposed during this period.
Consumer democracy: Feldman misses opportunity in that consumer democracy poses a real challenge to aspects of conservative thought; ancient values are threatened. Maybe the answer was that conservative thought was still fighting the Cold War and didn’t turn to these kinds of issues. In the 1970s, you get conservatives on the SCt. Harlan as voice of conservatism? When Harlan writes Cohen v. California and Bork excoriates him, is that a clash of traditionalists and libertarians? Are they having an argument about how good citizens are made?
In Democracy, Inc., conservative thought has to realign around the values of new multinational corporatist economy, legitimating acquisitive liberty (aka license?). Many conservatives no longer fear bigness, comfortable with dramatic inequalities of wealth and of political power as part of the free enterprise system. Holmes too was like that, not afraid of bigness.
Criticism: where is social Darwinism in this story in the late 19th century? Beginning of most powerful 1A metaphor: competition, red in tooth and claw, now for ideas too.
Not confident on the chronology. Feldman identifies pluralist interest group democracy with the New Deal; perhaps New Deal was culmination, but important developments occurred in WWI, long before New Deal—that’s where the opinions we start our 1A courses with come from. Open-ended embrace of possible goals of/size of gov’t as an important move leading to Brandeis/Holmes concepts of free speech.
Change of size matters: many of the earlier concepts aren’t feasible with a big country. Various efforts to get people to listen to you/attract attention—whether it’s flagburning, or spending zillions, or taking to the streets—all of that is because it’s harder to attract attention now than in a classic New England town meeting.
Conservatives wouldn’t agree that they were trying to strengthen democratic processes, so it’s not problematic to strengthen the power of bigness. So they wouldn’t agree that there was any irony in Democracy, Inc. Another irony that Feldman identifies: conservatives found moral clarity in profit-seeking. No version of serious conservative thought is about monism. But acquisitive liberty is a recent development; hard to embrace that as a matter of moral clarity, but conservative thought has evolved to genuinely admire those whose liberty is in acquiring wealth. Also limited gov’t is raised to the stature of a moral principle, not an instrumental one. That’s also something new in conservative thought. Third, disdain for compromise. Pluralism is all about compromise. Theoreticians of interest group politics like Dahl, Boorstin, Dewey are about accommodating and getting along. Modern conservative thought in quest for moral clarity has disdained compromise. Formalism/textualism has the same quest for certitude.
Where this all leads: the tension the paper begins with between the call for moral clarity and the call for liberty is not as acute. If you find moral clarity not with religion or ancient ethics, but in legitimating/leveraging wealth and limited gov’t, moral clarity and libertarianism coexist, so there’s less reason to expect implosion in conservative thought.
Feldman: doesn’t think of eras as completely separate—pluralist democracy is the major transition, which then evolves in reaction to cultural/economic changes, just as civic republican democracy had evolved before as the conception of the common good changed. Social Darwinism was another way to think about virtue and the common good—more racial thinking in late 19th/early 20th century where races were associated with virtue.
Q: distinguish between a history and some other form of argument. The conservative Justices now don’t all have the same beliefs. Alito seems to vote against speech he finds outrageous.
Tamara Piety: would like to see more exploration of why Rehnquist was such an exception not just on commercial speech but corporate speech in Belotti.
Q: another strain here, not conservative per se but Hobbesian that celebrates acquisitiveness. Hobbes isn’t pro-democratic. So the Hobbesian turn in conservative free speech doctrine (e.g., Kennedy) doesn’t recognize its own tensions with democracy.
Q: moral clarity: US v. Stevens; Alvarez; Snyder v. Phelps; Brown v. Entertainment Associates—fervent conservative splits on issues associated with moral clarity. Golan v. Holder as striking counterexample of minimal speech protection; similar to strong federal preemption holdings—not small government when it protects big corporate power.
Q: discuss the Chicago School more—important to the transition in conservative thought, but not a single one makes it onto the Supreme Court, probably because of the influence of moral conservatives. Kennedy v. Posner: a completely different type of conservatism; a particular kind of conservative libertarianism never made it to the SCt.
Q: different irony: acquisitive liberty is inconsistent with much conservative Christian thought. Tension between social conservative cause lawyers and economic liberty cause lawyers. Irony of Citizens United: promotes liberty but diminishes moral clarity of the morality that this group supports.