I. Introduction

The relationship between political ideology and the law represents one of the most valuable (and contentious) areas of inquiry within modern US legal scholarship, for ideology has been shown to affect not only formal law—or “law on the books”—but also legal discourse, legal theory, legal practice, and the construction of a variety of legal institutions. One of the most fruitful topics within this area of inquiry concerns how the relationship between ideology and law fits into accounts of American legal development. A full-fledged conception of American legal development must be sensitive to the ideological contexts that supply American law with its missions and shape doctrinal outcomes (Brandwein Reference Brandwein2011). But which ideologies have given meaning to the different areas of American law? Have these ideologies changed over time? And how exactly do these abstract political theories connect to the concrete, legal events in American history?

Accounts of ideological competition and institutionalization are commonly used to depict and legitimate US legal development. These accounts regularly see legal development in terms of embodied political ideologies jostling for institutional expression. Although a variety of political ideologies have been posited over the years, it is difficult to ignore American legal scholars' obsession with liberalism. One of the most influential accounts of this kind can be found in Louis Hartz's The Liberal Tradition in America. According to Hartz, the United States has always been strongly connected to liberalism, “in the classic Lockian sense” (Hartz Reference Hartz1955, 4). This ideology, with its emphasis on individualism, negative liberty, natural rights, and proceduralism, has exhibited a sizable and continuous influence on law and politics throughout American history, Hartz argues. This is largely because our nation does not have a revolutionary tradition; we were never forced to revolt against feudalism, like many European nations. America was birthed into liberalism and has never acquired the dialectical materials essential for a more radical push in American law.

Although Hartz's unidirectional ideological narrative frustrated legal and political scholars for decades (see, e.g., Smith Reference Smith1993), liberal developmental accounts did not fall away. Writing almost thirty years later, historian Robert W. Gordon viewed such liberal, evolutionary functionalist accounts to be the “dominant vision” of legal history and the relationship between law and society (Gordon Reference Gordon1984, 59). For generations, “enlightened American legal opinion has adhered with remarkable fidelity to what, in broad conception, looks like a single set of notions about historical change and the relation of law to such change” (59). Embedded in these notions is an “optimistic liberal” trajectory, wherein “there is an objective, determined, progressive social evolutionary path” for the country (61, 96).

Attempts to link a liberal political ideology so cleanly to US legal development have their perks, of course. There are good and practical reasons for constructing such tidy and fluid stories—ease of interpretation, clear conveyance of desirable themes and ideas, logicalness of one event neatly following a separate event. For many, American legal history appears to follow this “Whig” pattern of simple causes, chain reactions, and canonic landmarks unleashing tides of positive change upon our national community (Kersch Reference Kersch2004, 2–3). This is a particularly common trend in American constitutional historiography. For example, in We the People: Foundations, Bruce Ackerman argues that the United States has been subjected to three different constitutional regimes since our nation's founding. Each of these regimes is characterized by distinct constitutional arrangements, logics, and principles. These constitutional regimes do not coexist, but have followed each other in succession: first came the early republic, then the middle republic, and finally the modern republic. New regimes are generated when a sustained, popular movement attempts to replace the existing constitutional regime with newer and better arrangements, logics, and principles. The generally “preservationist” Supreme Court will defer to the people's demands and reshape the Constitution if the “higher lawmaking” is successful (Ackerman Reference Ackerman1991, 9–10). According to Ackerman, the courts represent the final bastion of entrenched understandings and past values (13). But this preservationist institution also presents significant opportunities because its institutional conservatism can be at odds with the contemporary zeitgeist, thus opening itself up to popular disagreement and the “spark of a new forward-looking movement” (139, 264). Notably, the popular, “forward-looking” movements that Ackerman views as having recast American constitutional law have all generated liberal outcomes. Each constitutional moment has been a harbinger for a more liberal, enlightened, free, and just regime than the previous regime.

Ronald Dworkin is another major figure who seeks to connect liberalism to US legal development. Interested particularly in constitutional law, Dworkin argues that the principles that judges excavate from the Constitution must be embedded in the Constitution and be consistent with American history, political practice, and past jurisprudence. This is what Dworkin means by “constitutional integrity”; judges' moral judgments must be “consistent in principle with the structural design of the Constitution as a whole, and also with the dominant lines of past constitutional interpretation” in order to “elaborate a coherent constitutional morality” (Dworkin Reference Dworkin1996, 10). For Dworkin, Judge Hercules—the ideal legal arbiter—engages in ground-up theorizing about his legal system by unearthing the political morality of his society and discovering the principles enshrined within the law. Moral considerations—or, political morality drawn from settled legal and historical materials in a particular society, complemented by broader considerations of justice—are essential to the project of constitutional interpretation. For Dworkin, it is apparent that the moral principles enshrined in our nation's Constitution were liberal principles, namely, individual freedom and equality. Although there is no guarantee that real-world judges will follow Dworkin's interpretive model, he believes that liberalism is the political ideology embedded in our constitutional materials and the correct guide for all constitutional actors.

But there also are important reasons to be skeptical of such liberal hermeneutics. Within political science, American political development (APD) scholars have long criticized the idea that the stories of our evolving American identities, communities, rules, and ideas fit within a simple liberal arc. These scholars claim, for instance, that the United States has been the battleground for multiple ideological forces, which have competed and conflicted in the legal arena for centuries. As such, American law and politics have not been beholden to a single ideological tradition, but have been the product of multiple conflicting ideologies. In Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law, APD scholar Ken Kersch decries the persistent overemphasis on America's liberal tradition and offers prominent counterexamples to refute these Whig histories. Kersch highlights the cardinal sins inherent in Whiggish attempts to project a doctrinaire, linear, Enlightenment narrative of American political development: “In its unidimensional developmental structure, however, this narrative has worked systematically to erase the choices that were made in the ongoing process of constructing that state between contentious, agonistic creedal commitments and multiple institutional orders” (Kersch Reference Kersch2004, 134). Moreover, such simplistic liberal determinisms regularly contain a “bias in favor of existing orders,” for they achieve a clear ideological narrative only by over-the-shoulder glances to the past, glances that remarkably produce patterns of justification and legitimation for a particular evolutionary telling (Gordon Reference Gordon1984, 114).

Nevertheless, this tendency to link some variant of liberalism to accounts of US legal development has not ceased. A particularly ambitious recent work of American history—Gary Gerstle's Liberty and Coercion: The Paradox of American Government from the Founding to the Present—illustrates the continuing allure of legal liberal accounts. But what is surprising is the intellectual tradition that is called to mind as Gary Gerstle pieces together his liberal account: the critical legal studies movement (CLS) and the idea of the fundamental contradiction.

II. Critical Legal Studies

Begun in the late 1970s, the critical legal studies movement was viewed by some legal commentators in the 1980s as “booming” and most at risk “not that it will be overlooked or ignored, but that it will become too successful” (White Reference White1984, 649). Today, more than two decades removed from these bold projections, almost every aspect of CLS remains an academic enigma. When spoken of, or—more rarely—written of, the movement generates wild differences of interpretation. For some legal and political scholars, CLS represented “radicalism for yuppies”—a loud and insignificant, quasi-Marxist flash in the pan that disappeared from the US legal community almost as quickly as it sprouted (Menand Reference Menand1986, 20–21). A good example of this view appears in Judge Richard Posner's most recent book on the American legal academy, where he describes critical legal studies as “a laughing-stock” that “imploded, and vanished with few traces” (Posner Reference Posner2016, 264). For others, however, CLS is seen as a quite successful legal movement. Legal scholars such as Allan C. Hutchinson seem to view CLS as the best organized and most influential movement of the radical left in American history and, at least in terms of scholarship, the most productive legal movement of the 1980s, much more so than law and economics (Hutchinson Reference Hutchinson and Hutchinson1989, 1). According to this more favorable account, CLS strongly influenced diverse areas of law, legal theory, and the academy. A more moderate perspective is that CLS posed a serious threat to the old guard of legal liberalism that dominated the legal academy from the 1950s to the 1970s, as well as the growing conservative legal movement in the 1980s, but—for one reason or another—the movement disintegrated sometime in the 1980s or 1990s.

The idea of a fundamental contradiction between liberty and coercion, a key theoretical insight of the critical legal studies movement, appeared to have fallen off the scholarly maps of legal theory and US legal development by the end of the 1980s. However, in Liberty and Coercion, Gerstle has resuscitated CLS claims concerning the contradiction. To best evaluate Gerstle's main arguments, we need to take a second look at CLS.

By analyzing a core work of critical legal scholarship alongside Gerstle's new book, I hope to recover the true lessons that the fundamental contradiction holds for US legal development. Not only does the fundamental contradiction represent an entrenched historico-legal structure in the United States, but it is also a structure that helps explain certain aspects of American legal development, including the fuzzy role of liberalism in our legal theory and practice. In this essay, I hope to show that Gerstle has done legal scholars a favor by bringing attention back to CLS. Liberty and Coercion stands as an exemplar of a recurring problem within legal scholarship, and the fundamental contradiction presents a stiff challenge to those, like Gerstle, who chart American legal development through liberalism's lens.

III. The Fundamental Contradiction

To better understand the continuing role of the fundamental contradiction to US legal development, we must begin in 1979, when the term itself was coined. In “The Structure of Blackstone's Commentaries,” Duncan Kennedy engages in a lengthy structuralist explanation (and critique) of the legal histories and theoretical improvisations underlying Sir William Blackstone's magnum opus, Commentaries on the Laws of England (Blackstone 1765). By delving into the recondite details of Blackstone's writings on jurisdiction, absolute rights, relative rights, feudal ownership versus individual ownership, and everything in between, Kennedy sets out to show the fundamental contradiction that lay at the core of Anglo-American law and the part that scholars such as Blackstone play in maintaining and legitimating that contradiction.

So what exactly is the fundamental contradiction? The fundamental contradiction is that individual liberty requires, but is also opposed to, coercion and collective constraints. The conception of individual liberty that Kennedy is working with is a negative conception, in the tradition of Thomas Hobbes, John Locke, and John Stuart Mill. In general, this antipaternalist view of liberty incorporates the sanctity of an autonomous personhood and the inviolability of the human will. Humans require liberty to enable us to manifest our natural characteristics and control the meaningful aspects of our lives. This liberty—a liberty of noninterference and free choice—places a high moral premium on the unadulterated ability to explore and cultivate our talents, capacities, and social environments.

The fundamental contradiction lies in the legal reality that although civil and governmental institutions may safeguard elements of this liberty, these institutions also threaten individual liberty with “hierarchical structures of power, welfare, and access to enlightenment” (Kennedy Reference Kennedy1979, 212). Individual liberty is opposed to, but also requires, collectively coercive apparatuses. Persons and collectivities “provide us the stuff of our selves and protect us in crucial ways against destruction,” but also “threaten[s] us with annihilation and urge[s] upon us forms of fusion that are quite plainly bad” (212). According to Kennedy, this contradiction between individual liberty and “communal coercive action … has ‘always' existed, in its present degree of intensity and pervasiveness” (211, 213). In fact, the “history of legal thought is the history of the fundamental contradiction” (216). For Kennedy, the fundamental contradiction is central to the development of Anglo-American legal history because a chief function of legal theory and history has been to track and recast the fundamental contradiction amid a protean legal environment. Because the “very essence of every problem” in Anglo-American law addresses the “problem of the legitimate content of collective coercion … all issues within a doctrinal field reduce to a single dilemma of the degree of collective as opposed to individual self-determination that is appropriate” (213). Legal theory and history have been charged both with explaining and justifying the unstable compromises and structural instabilities that have occurred in the law.

But if the fundamental contradiction was at the core of English common law theorizing during the time of Blackstone and also pervades contemporary US legal theory, why did no one before Kennedy pay attention to this omnipotent and omnipresent legal phenomenon? A central objective of “The Structure of Blackstone's Commentaries” is to demonstrate how, for centuries, legal practitioners, historians, and theorists—such as Blackstone—have entrenched “liberalism” and averted our attention from the fundamental contradiction. Liberalism is both a political and legal theoretical project that has had the effect of hiding the political intentions, contradictions, and messiness undergirding the law.Footnote ¹ Legal professionals-cum-warriors of liberalism have been able to “mediate and legitimate” the English and American legal systems, to “naturalize purely social phenomena” and “to legitimate institutions that seem at first blush inconsistent with” a liberal political order (211, 218, 234). As such, liberalism has been able to “deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world … to mystify both dominators and dominated by convincing them of the naturalness, the freedom, and the rationality of a condition of bondage” (210–11).

It is important to note that the historians and theorists who have participated in this unceasing liberalization project have not been entirely self-conscious of their participation or of the fundamental contradiction that they have concealed (216). Duncan Kennedy's philosophical precision is at its finest when outlining both the role of agency and consciousness in historical development. Kennedy holds that legal theory operates both as the property and the surrounding of us all. Liberal processes of denying the existence of the fundamental contradiction, mediating and flattening the inconsistencies and inadequacies beneath the purported liberal order, and legitimating that ascendant order do require the work of legal historians and theorists. These actors understand themselves either as neutral information disseminators—altruistic and impartial conveyors of knowledge who illuminate the diverse modes of legal reasoning, forms of legal institutions, and relevant doctrine—or as helpful theorists who work to clarify and improve the foundations of the law. On the receiving end is the rest of society, which has accepted theorists' work as sufficient justification and explanation of the legal environment. The fundamental contradiction has been safely camouflaged in the law for centuries because everyday citizens have consumed the liberal fruits of legal history and theory and also have been complicit in decisions regarding which collective actions are legitimate and why certain political, legal, and social orders ought to be privileged over alternatives (213–14).

But although Kennedy conceptualizes liberalism as a powerful, transhistorical force that has successfully hidden, naturalized, and legitimated the fundamental contradiction in law, “The Structure of Blackstone's Commentaries” is more than just a work of critical legal history; it is connected to a specific long-term program for leftists. Kennedy views contemporary legal theorists and historians as being charged with a particular role in the unveiling of the fundamental contradiction. As liberalism has charged forward, it has unintentionally been undoing itself. A larger historical process has been in effect—the unveiling of the fundamental contradiction—and this process both requires liberalism and promises to dissolve liberalism. According to Kennedy, legal scholars possess a critical and deconstructive responsibility to unearth the apologetic motives that “lie behind the forms of legal reasoning and categorization” (220). For those scholars up to the task, a keen attention to legal history is crucial, for “the motives that underlie the structure as a whole are … likely to be buried deep, if not altogether inaccessible” (216). This deconstructive method holds out the postliberal promise of “understanding the political significance of legal thinking” and “discovering hidden political intentions beneath the surface of legal exposition” (209, 211). By uncovering the fundamental contradiction and its relationship to diverse areas of law, legal theorists and historians can highlight the irrational, unnatural, and completely political nature of legal reasoning, legal institutions, and legal doctrine.

The final feature of the fundamental contradiction that warrants discussion is the ambiguous future of legal history and theory after the fundamental contradiction has been successfully revealed. We might wonder what a regnant postliberal legal history and theory is supposed to yield. Will the revelation somehow lead to the contradiction's resolution? Is the fundamental contradiction in Anglo-American law a historical artifact and therefore revisable? Or is it a truly fundamental feature of our legal system that will always be part of it? This is one of the most complex and nebulous aspects of Kennedy's description of the contradiction. On the one hand, it is clear that Kennedy believes that deconstructive, critical analysis has the power to unmask “the general (but biased) ground rules of class struggle,” to lead to transformative legal practices, and to rejuvenate legal education and egalitarian politics (220). However, it is hard to square this with his descriptions of the contradiction. For one thing, deconstruction represents more than a strictly external enterprise because “the very structures against which we rebel are necessarily within us as well as outside of us. We are implicated in what we would transform and it in us” (212). Put simply, the fundamental contradiction is not going away.

The fundamental contradiction, and its relation to all past, present, and future modes of legal history and theory, appears to be an unavoidable and indomitable force, not a historically contingent and impermanent feature. Nevertheless, Kennedy also asserts that “[t]he task of criticism is to demystify our thinking by confronting us with the fact that the contradiction is a historical artifact. It is no more immortal than is the society that created and sustains it” (221). What modes of legal history and theory will outlive the fundamental contradiction, and what concrete results these changes will yield, are left unresolved in “The Structure of Blackstone's Commentaries.”

IV. Falling Out of Focus

The fundamental contradiction became one of the most significant theoretical contributions to the young critical legal studies movement, which grew in size from the late 1970s to the early 1980s. One Crit, Mark G. Kelman, observed that “the ‘Fundamental Contradiction’ has come to be treated by commentators on the CLS as one of its central tenets—its Pledge of Allegiance, the most basic belief about the Nature of Man” (Kelman Reference Kelman1984, 296). Referenced regularly by Crit legal scholars, the contradiction became a common backdrop for critical examinations of the conflict, variance, and incoherence that existed in different areas of US law (see, e.g., Frug Reference Frug1980; Klare Reference Klare1981; Gordon Reference Gordon and Kairys1982; Feinman Reference Feinman1983). However, by the end of 1984, the fundamental contradiction appeared to have lost much of its traction among legal scholars, and even within CLS the idea emerged less frequently.

A major reason behind the fundamental contradiction's falling out of focus was Duncan Kennedy's disavowal of it. In 1984, the Stanford Law Review published a highly influential symposium on critical legal studies. For many US legal academics, this journal issue provided both an introduction to contemporary critical scholarship and a serious opening interaction with elements of the decentralized CLS movement. Before this time, many academics either had not heard of CLS, had not engaged with Crits' scholarly work, or simply viewed the movement as an insignificant motley crew of neo-Marxist rabble-rousers in the legal academy.

The first article within the widely read Stanford symposium is “Roll Over Beethoven.” In this dialogue, Duncan Kennedy and another pivotal figure of the CLS movement, Peter Gabel, converse about topics ranging from critical theory to the US legal environment to the future of critical legal studies. During the conversation, Gabel presses Kennedy about the fundamental contradiction. Gabel remarks: “Now we have to have a discussion about the fundamental contradiction—all because you tied this tin can around our neck. The entire Critical Legal Studies movement has been dragging around that can” (Gabel and Kennedy Reference Gabel and Kennedy1984, 14). Surprisingly, Kennedy responds, “I renounce the fundamental contradiction. I recant it” (15). Kennedy explains:

As the conversation continues, it is apparent that Kennedy is disappointed by the overuse and resultant theoretical hollowness of the concept. To pigeonhole CLS and also leverage the weight of the movement into “interesting” insights, scholars have coopted and corrupted the term, profiting from the heuristic while simultaneously decimating its “genuinely radical contribution” (17). But Kennedy does not disavow the fundamental contradiction full stop. “The reason why it worked, briefly,” Kennedy claims, “had to do with the substantive truth of what it's referring to” (17). The contradictory legal status of requiring liberty but also requiring an antithetical system of coercion in order to furnish and protect that liberty remains at the heart of our modern legal order. Once revealed, this contradiction is epiphanic and terrifying, not just legally but also psychologically. The fundamental contradiction represents an entrenched historico-legal structure, a structure that both balances and also paralyzes a supposedly clear and logical legal order. The contradiction also forces us to deal with the disorienting fact that “[p]eople are what they are in the mode of not being what they are, so that if you want to understand what it is to be a person, you have to be open to experience the negation that's at the very core of your own being, and of the being of everyone else” (17).

So, although the fundamental contradiction term may have overstayed its welcome, insofar as the term had been celebrated and adulterated over the previous five years, focus on the fact of a fundamental contradiction functioning at the core of US legal development had not changed. Nevertheless, by the end of 1984, the fundamental contradiction faded from critical legal scholarship and no significant work of American legal theory or history seriously engaged with the fundamental contradiction or advanced this liberty/coercion paradox into new legal horizons.Footnote ²

V. Liberty and Coercion—A Modern Telling

More than three decades after the Stanford symposium, Gary Gerstle's Liberty and Coercion: The Paradox of American Government from the Founding to the Present was published. Ostensibly, this recent work fits squarely in the genre of political history. However, Gerstle's history is a messy one, “full of contestation and contradiction, paradox and unintended consequence,” implicating different levels of government and a full range of actors (Gerstle Reference Gerstle2015, 1). State governments, national governments, courts, parties, liberals, and conservatives compete in “the great American dialectic” over the location and distribution of governing power (King Reference King2015). Moving from our nation's founding to the present, Gerstle traces the development of American governing powers, which has entailed a clash of diverse political principles and institutional logics.

If we look closely, Gerstle's story truly is a legal story, rooted in “two contradictory principles of governance” wedded together in the US Constitution and in the legal traditions of the country (Gerstle Reference Gerstle2015, 1). For Gerstle, the development of governmental powers in the United States has been grounded in a unique legal framework. This legal framework—which is constituted by two opposing yet legitimating forces, and that struggles to protect liberal ends—is key to understanding the American founding, as well as the shifting power relations and institutional evolutions since the eighteenth century. Remarkably, the two opposing forces that lie at the center of American legal and political development are liberty and coercion.

The first principle, liberty, is almost identical to the form of negative liberty at issue in the fundamental contradiction. Drawing on Locke, Gerstle describes this principle of liberty as an American commitment to noninterference, personal autonomy, and limited government (1–2, 18–20). The second principle, coercion, also strongly resembles the form of collective constraint that is central to the fundamental contradiction. This principle looks beyond the self-interest of negative liberty and instead seeks to promote the public good. Coercion both bolsters liberty and tempers its excesses. For a political community to function, members need to be able to relate to others and to arrange their affairs in coordination with each other. If anyone hopes to align his life with his interests, some form of coercion is needed. For Americans, the state has always been viewed as an effective way to provide information that allows individuals to situate their plans and desires within a stable institutional framework. Collective constraints on diverse, atomistic aims also serve an educative role, constructing “better” members of society and guiding these members toward preferable ways of living. Both the principle of liberty and the principle of coercion, Gerstle argues, are entrenched in the American experience and have profoundly shaped the evolution of our people, our culture, and our political institutions.

When Gerstle descends from this theoretical realm to explain the concrete persons, experiences, and events that have driven US political development, it becomes clear how fully committed he is to what he terms the “paradox” of liberty and coercion. Gerstle sees the paradox as an effective frame for describing micro-level behavior, with individuals and groups having to wrestle—sometimes wittingly, sometimes unwittingly—with these two clashing principles. Gerstle also understands the liberty principle and the coercion principle as being located within divergent historical and political spheres: each principle is clearly represented in a particular Anglo-American legal tradition and in a corresponding level of American government.

Starting from the 1780s, Gerstle points toward the liberty principle as the foundation for Americans' strong “animus to concentrated federal government power” (2). The nation's recent history with Britain had cemented a fear of tyrannical central power and unnecessary coercion. Our founding fathers wished to safeguard Americans' individual liberties by imposing powerful restrictions on the size and scope of the national government. However, during this founding period, Americans also were deeply committed to the police power tradition. Within the English common law, this royal power authorized the regulation of large swaths of life for the good of the community. The police power tradition was “collectivist and majoritarian” and “liberal notions of individual rights played only a secondary role” (61). This was the coercion principle incarnate.

Gerstle describes the period of US history between the 1780s and the 1860s as one of inchoate liberalism. For one thing, although the Constitution constructed a stronger and more capable central government than the one established under the Articles of Confederation, the laws and institutional arrangements set in place during this broad period demonstrate the prominent influence of the liberty principle (20–22). Those who drafted the US Constitution focused on “limited and fragmented” central government, so as “to make sure that no central political authority in the United States would ever be able to concentrate power to the degree that had made possible the misrule of George III” (18). By incorporating intense antifederalist concerns, the drafters of the Constitution and the Bill of Rights designed our constitutional order so that a substantial degree of governing power would reside with citizens and with the states.

Gerstle is adamant, however, that even these seemingly liberal accomplishments represented an incomplete liberalism, a normatively inferior system of governance that consolidated and perpetuated coercive practices. For instance, the Bill of Rights embodied the principle of liberty, as applied to the central government, and the principle of coercion, as applied (or rather not applied) to the states. Although the Bill of Rights protected certain fundamental rights from the reach of the central government, states came to be exempted from the Bill of Rights. In keeping with the police power tradition, states were permitted to pass laws and sanction behaviors that clearly flouted the rights preserved under the Bill of Rights. Gerstle represents this contradictory legal environment both as one of paradox and one of incomplete liberalism, wherein the normatively superior principle (liberty) had not yet actualized, for it was still mired in a determined dialectical struggle. This theme is especially prominent during the congressional fights over the function and scope of the Bill of Rights. According to Gerstle, “[t]he inability of many of Madison's colleagues to comprehend the fuss Madison was making about imposing a bill of rights on the states points to the piecemeal and incomplete way that the ideology of liberalism emerged in late eighteenth-century America” (24).

As the young American nation transitioned past its founding period, Gerstle observes the installation of the two clashing principles in distinct levels of government. The national government became linked to the liberty principle and represented “a liberal institution in the classical sense of that term” (90). Dominated by Jeffersonian and Jacksonian ideals, this small national government possessed limited powers but proved itself capable and effective in many ways. The national administration was almost nonexistent, with the post office serving as the only real bureaucratic arm that reached from Washington, DC, to the rest of the country. Nevertheless, this “empire of liberty” sought to expand the nation, protect it, populate it, and generate intense emotive connections between citizen and country (25–33). This national vision was largely successful. An effective national military pushed Native Americans further and further west, and the national government oversaw the provision of land, freedom, citizenship, and self-government to citizens and local governments. Gerstle recognizes that the national government's commitment to liberalism during this period was deficient. National programs, policies, and laws were remarkably discriminatory, the result being that white, “virtuous” men monopolized land, freedom, citizenship and political participation throughout the antebellum period (34–35). Nevertheless, Gerstle concludes that the national government was the location of the liberty principle during the period, and he views the apparent illiberalism as resulting from the American people working out the contours of the liberty principle over time.Footnote ³

From the 1780s to the 1860s, the state governments enjoyed robust powers that often outstripped national powers. Equipped with “broad, capacious, and vaguely defined” abilities affixed to the police power tradition, American states “stood in contradiction to the liberal principles that structured the activities of the central government” (56, 61). This level of government also became the site of the coercion principle, for Gerstle. Although there was a radical disparity between the laws and policies of different states, with different conceptions of the public good in place, all states wielded the legal tools necessary to actively intervene in the lives of citizens and noncitizens (68–69). This reflects an understanding of antebellum governance that has become commonplace, both in historical work and in APD scholarship, at least since the publication of William Novak's The People's Welfare: Law and Regulation in Nineteenth-Century America. Gerstle borrows from Novak the example of antebellum Chicago, Illinois, to highlight the broad regulations that seeped into every aspect of local life:

In spite of the fact that states wielded such coercive might, in the form of the police power, they still had to rely on national intervention to support many of their policies. For instance, southern states required the help of the national government to protect the institution of slavery (Gerstle Reference Gerstle2015, 71–74). Federal fugitive slave laws,Footnote ⁴ territorial compromises,Footnote ⁵ and auspicious business codes were all needed in order to safeguard southern slavery. The national government's willingness to offer legal shields for such an illiberal institution appears to hurt Gerstle's claims about the government's liberal character. Do not these historical examples indicate that the national government was not a liberal entity, or at least that the national government and the state governments were not so dissimilar in their foundational principles? Gerstle rejects this idea “that the two levels of government were moving in the same direction” (73). Instead, he points to John C. Calhoun's efforts at championing state sovereignty as evidence of how “conscripting an agency of the federal government—in this case, the Supreme Court—to support the distinctive theory of governance that inhered in the states stayed alive” (74).Footnote ⁶

The next six decades—spanning the period of US history from Reconstruction to the onset of the Great Depression—follow an astonishingly similar pattern. Following the Civil War, the states were weakened, but only temporarily. By the end of Reconstruction, the states had recovered a significant degree of coercive control over daily life. Instead of eliminating the regulatory stranglehold that states maintained over their citizens, the Supreme Court permitted the states to set up a system of rules regulating diverse areas of life, such as “marriage, sexuality, morals, race, free speech, and social welfare” (76). Again, Gerstle points to our nation's inchoate liberalism to explain the federal government's inability (or unwillingness) to undermine the foundation of the states' coercive power (75–80). Even the emancipation of nearly 4 million slaves, and the humbling of eleven southern states, could not quash the regime of state-level coercion that had become historically entrenched in our political system.

According to Gerstle, that all began to change in the next period of US politics, spanning from the 1930s to the end of the 1960s. In this era, we can observe “a revolution in American governance” (186). Moving beyond the classical liberal origins of the national government, this period witnessed a turn toward positive liberty. Gerstle understands this as the creation of a “new liberal state,” wherein a more powerful and bureaucratic national government was required in order to achieve and expand the traditional liberal aims of securing rights, opportunities, and benefits for American citizens (185, 213, 247, 348). Although the New Deal served as the primary source of transformation as the national government expanded, bureaucratized, and professionalized, it was unable to “completely emancipate” itself from the historic federal-state relationship, or—identically, in Gerstle's narrative—the historic liberty-coercion paradox (243–47). Instead, our nation's commitment to federalism continued and states retained a sizable degree of coercive power.

That all changed in the 1960s. Gerstle argues that the Supreme Court updated and applied theories of constitutional incorporation and substantive due process to lead the charge against state governments. To safeguard the individual rights and autonomy of African Americans, adherents of minority religions, criminal defendants, women, and children, the Supreme Court led the “conquest” of liberty over coercion, national authority over state authority (86).Footnote ⁷ Before then, “America was neither liberal nor illiberal. Instead—and paradoxically—it was both. A polity that promised individuals great freedom also encased them in systems of coercion” (86).

It is hard to overstate the centrality of this period to Gerstle's understanding of the relationship between ideology and US legal development. By the end of the 1960s, the police power tradition was delegitimized and states' regulative power over citizens' lives was sharply curtailed. So what, exactly, did this do to the arrangement of political power in the United States? With the help of Congress and President Lyndon B. Johnson, the Supreme Court oversaw a “profound shift of power away from the states and toward individual citizens, on the one hand, and the central government, on the other” (295). This shift also communicates a crucial detail about the fundamental contradiction—or, in Gerstle's terms, the paradox—between liberty and coercion.

By the time that Gerstle has arrived at the 1960s, he has effectively turned the paradox between the principles of liberty and coercion into a proxy for the longstanding struggle between the powers and aims of the national government and the powers and aims of the state governments (275, 310, 347). As a result, the monumental dismantling of state power in the 1960s ends up being interpreted as the death of the fundamental contradiction in US politics. The principle of liberty, and the liberal national government that upholds this principle, has finally carried the day, establishing itself rightfully as the preeminent principle of American governance and the correct guide for the protection and preservation of the American people.

Gerstle understands the overcoming of the fundamental contradiction to be a landmark historical and normative accomplishment for the United States. The paradox between liberty and coercion was a bad arrangement for the country, “a weakness” that generated conflictual institutions and “made it especially difficult for Americans to define the proper boundaries of government and grasp its purposes” (347). The weakness, according to Gerstle, stemmed largely from the fact that the principle of coercion became pesky and problematic when embedded in the laws and practices of state governments. The liberty principle seems to be the more assertive, powerful, and futuristic principle for American law and politics. The coercive principle, on the other hand, is seen as threatening, retrogressive, and inessential, a vestige of our flawed constitutional beginnings.

VI. From the 1970s to Present: Fundamental Contradiction Redux?

The most peculiar aspect of Liberty and Coercion is its description of more recent legal and political developments. After hailing the previous era as a time of conquest, which had witnessed the takedown of illiberal institutions at the state level and the successful implementation of the Bill of Rights “180 years after it had formally become the law of the land,” Gerstle flounders while attempting to explain the past four decades of US history (310). The 1970s was more conservative than the 1960s, especially on the Court, with the end of the Warren Court and the beginning of the Burger Court, but there was no serious legal or political retrenchment in that decade. Gerstle writes: “The Burger Court [1969–1986] allowed much of the work of the Warren Court to stand. The states were dealt a severe blow, while the power of the federal government was vastly augmented” (309). It is the late 1980s and beyond that are difficult for Gerstle to reconcile.

Conservative anger over the size and reach of the national government boiled over in the 1980s, leading to widespread calls for “reducing the American Leviathan to its late-nineteenth century Lilliputian dimensions” (325). Alongside these conservative cries for a reduction in national power has been an equally influential push for a renewal of state power. The Republican Party has been at the vanguard, capitalizing on this conservative animus and gradually “making its antigovernment ideology predominant” (338). Over the past three decades, the victorious, empowered liberal national government of the 1960s and 1970s has been retreating. And although the police power tradition no longer serves as the explicit basis for state power, three decades of the Rehnquist Court and its successor Roberts Court have found additional means “to give state legislators permission to once again imagine their polities as ‘independent sovereigns' over which the federal government had only limited control” (342).

However, amid this reversal, Gerstle still asserts that the old ways are dead. Even though the new liberal state may be under fire, and the Warren Court has long passed, the states will not return to their previous muscular station. They will not rival or surpass the national government in strength, nor will they reacquire their formerly robust powers to actively mold subjects in accordance with the “public good.” Moreover, the powers and aims of the state governments no longer are beholden to the principle of coercion.

Instead, Gerstle abruptly concludes that there has been a momentous transformation at the national level. Reversing course after centuries, the central government now has appropriated the principle of coercion. In effect, the United States has arrived at a point where the fundamental contradiction has matured into a totalizing structuration both of the citizen's condition and the national government's condition. Gerstle admits that “attitudes toward liberty and coercion still cohabit in the minds of single individuals” and these contrasting principles have also established a Janus-faced national government: a collectively coercive state apparatus existing alongside an apparatus bent on protecting liberal, individualist claims from coercion (4, 349).

This inconsistent and unexpected conclusion makes the larger historical narrative quite difficult to interpret. The most generous reinterpretation of Gerstle's view of recent US history is that the fundamental contradiction between the principle of liberty (as instantiated in the national government) and the principle of coercion (as instantiated in the various state governments) reached a crescendo in the 1960s. The national government and the liberty principle won out then, and promised to continue winning out in American law and politics. However, although liberalism finally conquered the weaker forces of illiberalism, the paradox did not truly perish. Instead, the paradox still exists, both in individuals and in our national political and legal institutions. But does not this conclusion contradict the rest of the picture Gerstle paints? How can the liberty/coercion paradox have an endpoint but also a reinstantiation? Moreover, does not the rise of the national security state, with its elaborate, collectively coercive apparatus, prove the relative illiberalism of American law and politics?

To make sense of Gerstle's liberal history of the United States, we ought to understand its place in the larger literature on ideology and American legal development. In many ways, Liberty and Coercion stands as an exemplar of a recurring problem within legal liberal scholarship and, I argue, this problem requires us to take a second look at CLS and the fundamental contradiction. From this critical perspective, Gerstle represents a modern, American version of Blackstone. Recall that Duncan Kennedy tells us that Blackstone's work is representative of the means by which legal historians and theorists have strengthened and perpetuated the Anglo-American liberal project. These foot soldiers of liberalism have served to hide the political intentions, contradictions, and messiness undergirding the legal order, demonstrating to the rest of the community the naturalness and rationality of the order's liberal progression. Kennedy writes that “the development of the liberal mode of mediating the fundamental contradiction” includes the ability to provide a legal history and theory sufficient to make “it plausible to view the whole legal system as a derivation from the fundamental principles enunciated by liberal political theory” (Kennedy Reference Kennedy1979, 351). Gerstle does just this. He illustrates the developmental processes, legal and political phenomena, and historical cast that embody the principle of liberty in the United States and lie behind the ultimate triumph of liberalism in our contemporary legal and political institutions.

However, Gerstle's account of this landmark historical and normative accomplishment does not take the rationalized, naturalized, and neutralized form that the Crits so vehemently condemned. This, I think, may stand as the principal reward for working through Gerstle's tortuous history. The attentive reader can glimpse the ways in which Gerstle inches toward a break with the generic liberal developmental narrative, instead including critical legal elements that wind up highlighting the glaring weaknesses of the legal liberal tradition more than repairing them. In fact, Liberty and Coercion stands as an answer to Kennedy's call to arms for legal leftists, albeit incompletely. Kennedy views contemporary legal theorists and historians as being charged with a particular role in the unveiling of the fundamental contradiction. The book takes a step toward unveiling the contradiction, with Gerstle conceptualizing the liberty/coercion paradox as the motivating force in US legal development. Far from being an absent cause in American history, the fundamental contradiction is depicted as an entrenched historico-legal structure, wedded together in the US Constitution and in the legal traditions of the country.

Nonetheless, Liberty and Coercion answers Kennedy's call incompletely, for Gerstle is still handicapped by a set of legal liberal assumptions. The book's final resting place seems to be that unveiling the history of the fundamental contradiction in America buttresses his liberal account. The ongoing battle between such “contradictory principles of governance” is meant to demonstrate how unwelcome and problematic the principle of coercion is, and how America's legal and political history has struggled, institutionally and individually, to conquer this principle (1).

This hybrid liberal account of US legal developments cannot be salvaged. Liberty and Coercion attempts to bridge the divide between the fundamental contradiction and liberal triumphalism, and we can observe the limitations linked to this endeavor. For one thing, Gerstle morphs into the type of scholar that Kennedy rails against in “Roll Over Beethoven.” Although Gerstle relies on the fundamental contradiction to ground his ambitious history of American law and politics, he dilutes and distorts the nature of the contradiction in order to construct a heuristic that might provide a passably liberal narrative. Gerstle's more anodyne conception of the fundamental contradiction is redolent of the prosaic eschatology featuring the ongoing tug-of-war between the forces of good and evil. In this account, the virtuous principle of liberty has fought in a great 200-year dialectic to spread autonomy, self-determination, rights, and goodness to the American people. It is the principle of the future, a gift held dearly by political liberals and Democratic Party proselytizers in recent decades. The principle of coercion is cast as the darker side of America's great dialectic. Seen as threatening and provincial, fed by fear and prejudice, this antiquated principle needs to be minimized or banished entirely as a threat to America's legal liberal order.

Although more creditable than the generic liberal developmental narrative, Gerstle's heuristic badly mischaracterizes the true nature of the fundamental contradiction and poorly reflects the contours of US legal development. The liberty/coercion contradiction is not contradictory in the sense of one principle being essential yet constrained by the other, inimical principle. The radical verity of the contradiction is that both principles represent legal realities that are necessary, beneficial, and ineradicable. The construction, protection, and preservation of liberty require meaningful coercion, and coercive apparatuses only exist and maintain their legitimacy insofar as they are able to prove of service to the cause of liberty. The contradiction cannot be conquered by a series of liberal Supreme Court rulings or an ambitious set of presidential initiatives. This agonistic relation can only be reconstituted, transformed into different legal arrangements and various institutional structures over time. Put bluntly, although the powers and capacities of state governments no longer rival those of the national government after the police power tradition was demolished in the 1960s, the principle of coercion remains a constant in American political and legal life.

VII. Conclusion

The descriptive hoops and normative hurdles that Liberty and Coercion struggles to overcome display the enduring importance of CLS scholarship to US legal theory and history. In the early years of the critical legal studies movement, many Crits expounded the fundamental contradiction as an entrenched historico-legal structure in American law and politics, a universal feature of our legal order but also a malleable and mobile feature. Since the heyday of CLS, the principle of coercion has become more visible within the national government. For instance, the military and surveillance apparatuses in place today did not exist a century ago, but represent a distinctive feature of our contemporary national government. This feature is unapologetically illiberal, and presents an insurmountable obstacle to liberal accounts of American legal development, such as Gerstle's account in Liberty and Coercion.

Moving beyond the legal liberal tradition of Blackstone, Hartz, Dworkin, and Gerstle is necessary if we want to explain these blatantly illiberal features of our legal order. I hope that this essay will serve as the opening gambit in a larger scholarly pivoting toward a textured and dialectical framework such as Duncan Kennedy's fundamental contradiction, which furnishes a more intelligible story of legal development and presents a superior conceptualization of the relationship between political ideology and American law.