Wednesday, May 10, 2017

Independence, Accountability, the Rule of Law, and American Political Development

Mark Tushnet

This is a non-snarky follow-up to my previous post. I take it to be accurate to say that in contemporary U.S. political discourse there's a preference for Republican investigators of alleged high-level wrong-doing. I think the reason is that over the past several decades Republican publicists have successfully propagated the idea that Democrats (scholars for sure, but judges and lawyers as well) hold a theory of law that is simultaneously overtly and deeply political, whereas Republicans (scholars, judges, and lawyers) adhere to a disinterested "rule of law" ideal. (For an example of the latter, see former judge Michael Luttig's commencement speech, and for a comment on a recent talk by Justice Alito, see this astute comment.)

There's now a fair amount of good scholarship on the Republican side of this discourse, including Stephen Teles's book, The Rise of the Conservative Movement, and more recently Ideas with Consequences by Amanda Hollis-Brusky. What we need (as scholars), I think, is something explaining the failure of Democrats to effectively counter the Republican narrative. Part of the explanation may be simple: The Republican narrative, insofar as it deals with Democrats is accurate. But, Democratic leaning scholars have certainly challenged the Republican narrative about themselves (see for example this and this.) Why hasn't the Democratic challenge had the same kind of legs as the Republican narrative? (I'm interested in institutional-type answers, like foundation support and NGO activity.)

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