Justice Brennan, the Constitution, and Modern American Liberalism
![handle is hein.journals/cdozo10 and id is 181 raw text is: JUSTICE BRENNAN, THE CONSTITUTION, AND
MODERN AMERICAN LIBERALISM
David Rudenstine *
Societies experience periods of relative consensus and periods of
disunity. Years of consensus are marked by broad agreement on so-
cial, economic, and political means and ends. During these times ide-
ological debates are minimal; political discourse is primarily limited
to strategies and narrowly defined subjects. Periods of disunity are
characterized by substantial disagreements over political, social, and
economic means and ends. These periods are marked by ideological
conflicts; political, economic, and social disputes are fundamental.
Compared to the 1950's, ours is a time of relative disunity. We
disagree over fundamental matters such as the class and race divisions
in our society, economic policy, and our role in world affairs. Our
disunity over basic political, social, and economic structures has
spilled over into the legal academy, and has stimulated a fresh and
intense interest among legal academics in legal theory.' As do their
counterparts in other disciplines, these contemporary legal theorists
disagree over basic issues.
Justice Brennan's Reason, Passion, and The Progress of the
Law,2 is related to two current debates on legal theory, which are
themselves intertwined. The first concerns the dispute over constitu-
tional meaning and method. The meaning of the Constitution is
fiercely contested and includes such fundamental matters as: whether
the fourteenth amendment incorporates the Bill of Rights and makes
it applicable to the states; whether the free speech clause of the first
amendment protects only political speech; whether the Constitution
protects individual privacy, and if it does, what interests are protected
by this concept; whether church and state can be meaningfully entan-
gled without violating the establishment clause of the first amend-
ment; how much process the Constitution requires each state to afford
a defendant in a criminal proceeding; and where the boundaries are
* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. I wish to
thank David Carlson and Chuck Yablon for their helpful comments, and Gary Holtzer, a
Cardozo student, for his outstanding assistance in preparing the text and notes for publication.
I The most obvious and important evidence of this revival in theory in the last twenty
years is the law and society, law and economics, and critical legal studies movements. In
addition to these currents of thought, there have been recent theoretical developments in con-
stitutional law, and in law and the feminist perspective.
2 10 Cardozo L. Rev. 3 (1988) [hereinafter Brennan].](ViewImageLocal?handle=hein.journals/cdozo10&div=20&collection=&method=preview&ext=.png&size=3)
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Justice Brennan, the Constitution, and Modern American Liberalism
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