History supplies a set of basic ground rules; the "traditional principles of the common law," from which much modem law, both judge-made and statutory law, is seen as having improperly deviated. As the New Right ideology spreads among elite decision-makers and intellectuals, it poses a serious challenge to the Progressive-liberal consensus about the legal meanings of history that had previously dominated American legal thought for a very long time. The historical claims of New Right ideology in particular have touched off a number of fierce debates among Old (Progressive) Liberal, New Right, and radical legal intellectuals. In Section II, the article places the current debate in terms of standard modes in which lawyers make use of history in legal argument. Section III describes how American lawyers have generally combined these basic modes of argument. Section IV discusses the New Right’s challenges to the Liberal Progress that existed between the 1940s and 1970s. Section V then presents the cultural war that arose between the New Rights and Old Liberals in America. The article concludes in Section VI with a critique of the revival of 19th Century liberalism.
44 Clev. St. L. Rev. 123 (1996)
The Sixty-First Cleveland-Marshall Fund Lecture