Law has flourished on the corpse of philosophy in America

Reading the liberal gushing over Scalia, the insistence that we give him his due, the kvelling over his friendship with Ginsburg, the somnambulant acceptance of the Republicans’ fuckery and the Court’s place in our elections, our politics, our lives—I’ve never felt more that Louis Hartz got it basically right:

Surely, then, it is a remarkable force: this fixed, dogmatic liberalism of a liberal way of life. It is the secret root from which have sprung many of the most puzzling of American cultural phenomena. Take the unusual power of the Supreme Court and the cult of constitution worship on which it rests. Federal factors apart, judicial review as it has worked in America would be inconceivable without the national acceptance of the Lockian creed, ultimately enshrined in the Constitution, since the removal of high policy to the realm of adjudication implies a prior recognition of the principles to be legally interpreted…If in England a marvelous organic cohesion had held together the feudal, liberal, and socialist ideas, it would still be unthinkable there that the largest issues of public policy should be put before nine Talmudic judges examining a single text. But this is merely another way of saying that law has flourished on the corpse of philosophy in America, for the settlement of the ultimate moral question is the end of speculation upon it.


  1. ron bruno February 14, 2016 at 5:07 pm | #

    Thus, SCOTUS justices have the same function as Talmudic rabbis? That’s very plausible.

    Though I have disagreed with Scalia on the issue of gay marriage, I would still argue that his dissent in Obergefell was brilliant. His lament of the fact that six Catholic and three Jewish justices, who all graduated from Harvard or Yale, dominate the Supreme Court, is classic. The status given jurisprudence in both Catholic and Jewish culture, illuminates this apparent lack of diversity. The Talmudic reference is highly germane.

  2. Robb Forman Dew February 14, 2016 at 5:12 pm | #

    I have spent my day this Sunday in defense mode on FB insisting that it is not true that “any man’s death diminishes me.” I’ve been met with scandalized responses of embarrassment on my behalf as well as lectures about Antonin Scalia’s valuable contribution to the country and loyalty to the constitution. I am so glad to find your opinion so sell put! It is if I’ve been searching all day but only just now found the mind-bracing cup of coffee I’ve been seeking. Thank you!

  3. Rogers Smith February 14, 2016 at 5:27 pm | #

    And was Hartz also right that that this fixed, dogmatic liberalism meant that socialism could never succeed in America, so that a vote for a self-identified democratic socialist should be regarded as wasted? Hope not.

    • Corey Robin February 14, 2016 at 5:36 pm | #

      As I was writing this post, I thought to myself, God, I hope Rogers is taking a day off the interwebs!

      • LFC February 18, 2016 at 1:52 pm | #

        I just glanced at (and I do mean “glanced at,” not “studied”) the intro to R. Smith, Liberalism and American Constitutional Law, which opens with, and appears to criticize, the Hartz quote in the OP. However, since you and he are evidently friends, I guess you can argue about that among yourselves. (I admit to being mostly not competent to participate in such a discussion myself.)

  4. graccibros February 14, 2016 at 6:36 pm | #

    I was also disturbed by the gushing over the career of Scalia. And was stunned by Cass Sunstein’s tribute, although upon further reflection, I shouldn’t have been surprised.

    I wrote a comment that the New York Times didn’t publish, or at least didn’t notify me that they had. I had written that I would shed no tears over his death, that I felt that “Equal Justice Under the Law” had turned to hypocrisy, a cruel joke over the past 30 years, “died” under his “reign,” years which have witnessed the rise of Deferred Prosecutions for corporate crime, which appeared formally in 2003 under Bush’s Justice Department but which a 2011 article by Bill Greider in The Nation (How Wall Street Crooks Get Out of Jail Free) quoting Russell Mokhiber as saying it had been developing for 25 years, back to the mid-1980’s (the time of Scalia’s rise); this sense that the high economic crimes had to be handled differently, because we are all dependent on their economic genius and the shock waves from their convicted persons would hurt us all. One must add in the revolving door between Justice, the SEC and the law firms which defend high corporate and Wall Street crime to flesh out the fact we’re dealing with a “system,” a dual system.

    Put that trend alongside “The Great Incarceration” and you have two large currents one on top of the social ocean, the other on the bottom…I tried Googling to see if Scalia had ever commented on this great and ugly trend, but found nothing.

    But I have come across this, a closer look at what has been going on in places like Ferguson Missouri besides the headline deaths of young black men, bad as that is…it’s worse. If you haven’t read the Harvard Law Review article you are missing something very powerful, here at

    It’s less than a year old, and what it unmasks is a system of privatized parole and policing for profit where the charge to police under the local regimes of “no new taxes” and mandatory austerity – that is – neoliberalism – is to raise revenue. I’ve never read anything so devastating in destroying any trace of justice or fairness about our legal system for those who run afoul of the law and can’t pay the fines. Once in that predicament, one’s incarceration and multiple invented tack-on- fees are added to the original debts, creating a modern system with all the reinforcing cycles and cruelties to match tenant farming and share-cropping in the South of Reconstruction. It’s that bad. Where racism merges with neoliberalism’s local austerity. I don’t know how what is described in this article could develop in a land with so many lawyers and public pieties about that old “equal justice.”

    Add in the work of legal crusader Bryan Stevenson and his Equal Justice Initiative…and you have to temper if not overturn everything you’re reading about Justice Scalia.

    And one last question for his defenders; doesn’t his rather bizarre and convoluted legal theory imply that had he been a justice in the 1850’s he would have had to embrace Justice Taney’s Dred Scott reasoning, for didn’t the founders implicitly but clearly enshrine slavery in our founding and its Constitution? Subsequent little events like the Civil War and Reconstruction and powerful amendments changed that reality, but I’m afraid his philosophy will leave a nation enthralled with the changes brought by our worshedl economy’s “creative destruction” with some very poor tools to face what we “invent” every 25-50 years.

    • ron bruno February 14, 2016 at 8:55 pm | #

      Thank you for that link to the HLR article. The criminal justice system and especially vehicle code enforcement is about collection, rather than correction, in many American cities besides Ferguson. Cities often include fines and fees in their annual budgets and enforcement is certainly selective. Cops rarely pull over a Mercedes Benz to verify that the driver’s insurance and registration are up to date.

      There are indeed many pitfalls to Scalia’s originalism, and he occasionally applied it with prejudice, as was the case in Bush v. Gore. There are too many cases where the rule of law, with its emphasis on equality before the law, has been enforced selectively. Despite Scalia’s protestations to the contrary, the rule of law was killed off long ago in America, replaced with an arbitrary and capricious administrative state, with acute conflicts of interest in the financial sector masquerading as justice. “Creative destruction” has rarely benefited the little people. At this juncture, it appears the little people are fighting mad.

  5. fosforos17 February 14, 2016 at 6:38 pm | #

    “judicial review as it is practiced in America” is the key phrase. One man, John Marshall, is to blame. The Constitution does not sanction judicial review. Marshall rightly overturned the lower court in Marbury, because the law it enforced explicitly violated the constitution. But he did not do so on the simple constitutional ground that a law violating the constitution because its adoption was not “pursuant thereof [to the constitution]” and therefore had no standing as the “Law of the Land.” (Article VI) Instead of that explicit mandate on all judges, Marshall claimed the power to overturn was implicit and went on to claim that “interpreting the constitution is emphatically the province of the Supreme Court.” And that word–province–is the most revealing of all. Because the word “province” means *pro vincia*, CONQUERED TERRITORY. Judicial Review is constitutional territory conquered by John Marshall on behalf of the most reactionary of American institutions, the SCOTUS.

    • LFC February 18, 2016 at 1:18 am | #

      There is nothing *inherently* reactionary about SCOTUS. The Warren Court shows that.

      Re the Hartz quote about “the corpse of philosophy”: possibly this is b/c it’s late here, but taken out of context (as it has to be in the post), I don’t think it makes a huge amt of sense. At least it didn’t to me. But I shd prob actually read the Hartz bk one of these days. (It wd be time better spent than reading some of the long, ranting, almost sometimes incoherent comments on this site, that’s for damn sure.)

      • LFC March 7, 2016 at 1:45 pm | #

        p.s. on further reflection, I think the quote probably exaggerates the ‘death’ of philosophy in the U.S. and the degree to which the “ultimate moral question” has been “settled.”

  6. Carolyn Porter February 14, 2016 at 7:15 pm | #

    I thought to write only to express gladness that Louis Hartz is still regarded as salient. But having
    read the last reply’s cited HLR article, I am speechless. Even Hartz might have been stunned at
    what’s followed. But his brief on the Liberal Tradition was, as I recall, insufficiently attentive to
    its economic fuel. Or am I wrong about that? In any case, the HLR article should be broadcast
    at large. It brought me to tears.

  7. graccibros February 14, 2016 at 7:51 pm | #


    I’m grateful that you followed the link and it had the same impact on you that it did on me. I hope to be writing more formally about it very soon in some other forums. So please pardon my very rough draft outline above.

    The HLR article is powerful because it lays out the basic debt matrix’s ensnarement mechanisms – with some very straightforward case studies and then marshals the statistics…all that was missing were the connections to the complementary logic of the past 30 years’ political economy. And the racism of course, but poor whites get caught up too.

    How has that article and its clear implications stayed entirely out of the political debate in this election year? Remarkable and disturbing.

    • ron bruno February 14, 2016 at 9:01 pm | #

      You are making an excellent case, graccibros. Good luck with your writing project.

      • graccibros February 14, 2016 at 9:25 pm | #


        Thank you very much for the encouragement. You were right to caution us all in your earlier comment about getting too carried away with the degree to which “Equal Justice Under the Law” has ever been the norm, has been rather an often distant ideal, for the poor, for immigrants. The simple obstacle of paying for adequate legal counsel to fight within the system tempers the proclamation. And then there’s the racism…

        Yet what has happened “at the top” in the corporate realm, “at the bottom” in the streets for black people is dramatizing the deterioration of the ideal to the point of mockery, of citizen contempt. Reflect too on what happened to the lower ranks in the military in the Abu Ghraib prison-torture scandal in Iraq. Who served time in the brigs? No high officers, although a woman was transferred and demote, a general. A military version of “deferred prosecution,” albeit within their own justice system.

        I didn’t mention it, but the Harvard Law Review article cites three major constitutional violations that are ripe for challenges because of the abuses cited: Due Process (5th and 14th Amendments), Equal Protection (14th), and the rarely cited “Excessive Fines Clause” in the 8th.

        All the more reason to temper the beatification process under way for Justice Scalia.

  8. zenner41 February 15, 2016 at 10:10 am | #

    In some ways, I think this supreme role that is given the Supreme Court by the American political culture is a kind of secular Voice of God. Most societies need some sort of source of ultimate authority to give everyone in the society who cares about its cohesiveness a foundation to stand on when tossing heretics out into the cold. The Supreme Court gives the broad middle of our political culture that sort of Rock of Ages. Or at least it used to. By now, I think, every segment of the population has gotten used to assailing any decision of the court that it dislikes, and it would probably be difficult to find anyone who would assert without qualification that “once the Supremes have spoken, that’s that.” But the upcoming battle over whether and when a Scalia successor is put in place, and its intertwining with the Presidential campaign, will be a fascinating spectacle to watch.

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