So, for example, this lines me up very strongly against the kind of radicalism embedded within critical legal theory, which looks at the law and says, “There’s nothing *but* power there: the law is simply an instrument of social power”. My response is, “If the law is not what it purports to be, let’s make it so”

Nice try, but you have had a lot of time to make it so, and the evidence is that the system is sliding ever more rapidly to a state where your critics’ claim is true without qualification. What I’m puzzled by is why you have so much bile for the left, and none for your compatriots on the right who give lip service to the idea of “liberal procedural” in all of its libertarian and related variations while tacitly supporting the radical authoritarians in power. What you are ignoring is the visceral politics that joins the radical right to the reasonable center, and makes you and yours out to be liberal wimps. You still have nothing to say to Captain Blowtorch and his ilk.

Also, you have profoundly misunderstood the concept of the Multitude from Negri and Hardt. Look around the world a bit, just how many of the 5 or so billion souls do you think get any benefit from those supposed liberal institutions? More likely they are trampled by them. This is the core of the hatred that the neocons have stired up against you and liberalism generally, and you remain blind to how these institutions are felt in the lives of average Americans much less the rest of the world.

Mr. Berube defines “Procedural Liberalism” as the governmental institutions and procedures established by the Founders in the letter and spirit he believes they intended. He includes Constitutional rights of ordinary citizens in the conduct of their everyday lives and he includes NGO’s such as academics lecturing across the country. He says “…no one political faction should control every facet of a society.” He is right of course. He also says that some radicals and conservatives are reasonable and could likely agree with his position.

You point out, with some feeling, that it is frustrating to see some people attack these institutions but then rely on institutional protection when they are under threat. You also say, if I understood you, that using or threatening to use the filibuster is extra-procedural and therefore not worthy of a good citizen. Also you seem to be a little annoyed at those who rally, march and demonstrate when they really have no chance of making a change. Even though those acts may actually be part of our institutional procedures, as is the filibuster. But you warned that you were more conservative in some aspects than many liberals.

As someone once said, “I feel your pain.” But my feeling, while it may be as strong as yours, stems from a different issue. I am a systems analyst who has spent decades watching real people use real procedures and systems to try to achieve real goals. The kinds of disputes that you and Mr. Berube discuss are found in the world of commerce as well as politics. This is not surprising because the same people inhabit both worlds. In commerce there are basically two kinds of leaders: those who make something out of nothing, and those who exploit what others have created. And that exploitation often, perhaps more often now than in years past, includes gross personal enrichment at the expense of others not in power.

The way to handle the same problems brought on by the same people, even though they operate in two different spheres, is to recognize the weaknesses of the systems and procedures being used. In commerce, if a procedure leads to poor performance as measured against the common goal, someone gets fired or the procedure/system is changed, or both.

When the Founders wrote the Declaration they were establishing a common goal. They then wrote the Articles of Confederation to implement, by system and procedure, the common goal. Didn’t work. So, those practical, levelheaded, realistic, idealistic, liberal, conservative heroes changed the system. They wrote the Constitution. They created a beautiful example of early systems engineering.

Since that time, the system and procedures have been working with frequent modification by the exploiters, not the guys who made something out of nothing. The art of exploitation has now progressed to a science and our systems are in the hands of exploiters who accrete power and excrete corruption.

Our national systems need to be overhauled. So long as the debate continues as it is now, with one side arguing about what is “right” and the other side nodding and laughing, then things will definitely get worse.

But politics lacks one critical factor: it does not have a common goal. The Founders had one, but it has long since been accomplished. Commercial entities always have a goal so performance can be measured. So we need a common goal, actually several goals, some long-term and some short-term. Then the systems need to be changed to free us to work toward reaching the common goals.

So the argument should not be about the proper or improper use of the current systems and procedures, but how to change them and what to change them to.

I think it’s a good question. One of my big frustrations with some of the critical responses I’ve met with elsewhere is that the instant, knee-jerk reaction from some on the left to my arguments is to assume that procedural liberalism of the kind I’m talking about it is necessarily party politics, or the endorsement of the Democrats, or that it requires a hostility to changes in society which are radical in their scope and intent. I think none of the above are true. I’d be the first to agree that party politics are largely void now of political possibility, that the Democrats are the most hopeless of all, and that a serious commitment to procedural liberalism in fact carries some really serious, sustained radical implications in terms of the scope of the transformations of practice that commitment points to.

I guess what defines procedural liberalism as I think of it, however, is an assertion that liberal institutions are the source of freedoms and of empancipatory possibilities rather than an impediment to them; that the problem is interference with those institutions. So, for example, this lines me up very strongly against the kind of radicalism embedded within critical legal theory, which looks at the law and says, “There’s nothing *but* power there: the law is simply an instrument of social power”. My response is, “If the law is not what it purports to be, let’s make it so” but also a suspicion that the critical legal theorist is overlooking ways in which the law already embodies at least some of the hopeful premises of its best nature. So this is a two-pronged reply: that things are not so void of accomplishment or existing liberty as some radical critiques suggest; and that the answer is to work institutions towards their promise rather than sweep them away.

You’re right, however, that this becomes a much less persuasive reply as the situation of liberal institutions becomes more dire. In all honesty, as that prospect looms, I’m certainly open to hearing a “visioning of the not yet”. What I don’t think I’d ever be open to is something like Negri and Hardt’s sense that one must write a blank check to the Multitude on the grounds that whatever a future shorn of liberal institutionalism brings, it’s bound to be better than the present. I just think at this point, I can’t see past seeing that as either naively stupid or actively conniving: there have been too many such requests from too many people who then cashed the check written in the blood of millions. I’m not asking for an anal-retentive late-19th Century utopian socialist plan of all the details of a future society, but I do want to hear more about what new vision might be besides faith that the contradiction of the present must be better.

Try it the other way around. Neither “pole” or party is actually accomplishing anything. Neither has a strategy. To “embrace” hungry folk is different from embracing, or attaining, what it is they hunger for. The only significant difference between conservative and liberal in this game – a game in which they both understand that they are entirely ineffective – is in how they respond to the demolition. Cons fall back on platitudinous material that compels assent because it sits at the knee of the Great White Father. Rads point up the withered loins of the underpinnings, and talk of what to do to create something new. But the rhetoric of the “new” implies the death of the old, which puts some folks in the procedural lib camp in something of a quandary – they adhere to what is by all accounts on all sides falling apart – the old structural underpinnings, and yet they persist in posititing the possibility of finding a middle path between paternalistic apodicticity on one hand, and the unpromising, untried, uncharted, unstable visioning of the not yet. The problem is the denial of the gaping void where that village, the center used to be. How much more seductive to joyride that bottled heat than to look if anything might be done in the failing light. Paralyzing, and then, in very practical terms: where do you stand – what’s left to stand on?

Adam’s question is easier for me to answer. I think it’s partly because I’ve spent time in Africa, especially Zimbabwe, that it seems clear to me that bad as things seem at the moment, they’re really not nearly as bad as Adam’s description might imply. That even if many conservatives and libertarians are falling into illberalism or rejections of proceduralism, they haven’t fallen all the way as yet, and the structures of American democracy are still fairly intact even if sullied, even if they’re being chipped away. I’m particularly concerned when we fall into the habit of talking about voting fraud. Not because it’s impossible that there was some in the last election; certain there was chicanery in Florida in 2000–but to dwell on that lets us ignore the fact that even if space aliens landed and supervised our next elections with absolute and final impartiality, the voting public in the United States is very nearly divided down the middle. E.g., that even if we squeak out a Presidential victory, or manage to swing some Congressional votes, the political impasse is a real one. That’s what I’m really thinking about when I talk about both liberals and radicals being inauthentic to the present: until we ask what’s changed, what’s in motion out there, about the habitus that both Democratic and Republican voters occupy, in a way that is open, curious, investigatory, and accepting of the possibility of our own transformation, we’re not going to really make any headway.

I think this is why I choose to believe, sometimes against some sobering evidence, that libertarians and some conservatives do have sufficient symbolic commenplaces with procedural liberalism still; that we are all irrational (or inconsistent) Lockeans; that there is a kind of distributed decency and sense of political decorum that will rise slowly but persistently in response to indecent and self-destructive uses of political power. In truth, I think that is precisely one of the reasons that liberal and radical Americans find themselves on the political outs, that for a brief window in the 1970s and 1980s, identarian projects that many associate with the left bullied their way into civil and institutional life and misused their power at the same time that party Democrats at many levels of government became careless and arrogant about fiscal responsibility, issues of corruption (esp. municipal governments), about the alienating character of technocratic policy formation, and about social constituencies who felt excluded from political and social change. It may take a while for such a reaction to build, but the odd thing about it is that the opposition to the Republican machine in the meantime is better off being excluded from power–as long as we’re persistent and organized in criticizing the indecent misuses of power by the current majority.

One instance that gives me that hope would be what happened recently in Dover, much more the election than the judge’s decision. This is where I think the proceduralist response is just so much smarter than a more radical counterattack–where the political line should not be “believe in evolution or you’re a dumb religious ignoramus”, but “don’t force your religious views on other people, especially not through the schools”. There are a lot of hooks that the opposition should steal back from the Republicans, in fact–small government appeals, critiques of fatcat corruption, attacks on “activist judges”, and so on. That should be the content of some kind of popular-front opposition, in my opinion.

This is another reason I get annoyed with various left fractions–is that they come into some kind of coalition effort of this sort and immediately demand that the oppositional effort expand to include their own dedicated concerns. The Republicans had the discipline to shove a lot of that off to the side during the 1980s. They couldn’t do so indefinitely–eventually the religious right in particular pulled off a putsch within the party. Various left fractions are welcome to try the same in the really longer-term, that’s democracy for you, but I wish they could learn to put aside their dearest projects in the short-term.

Democrats are in a hard position, but it isn’t that hard of a position. 2000 was pretty much a tie. Whoever won 2000 would have won 2004 because of 9/11. If things were slightly different, the republicans would be the ones who are whining. Plus, no Iraq war.

I agree with Mary: in an otherwise excellent post, Tim, you lose me here. Contentious politics, i.e., non-routine political activity, is a far cry from elected representatives attempting to use a traditional procedural rule to block a (very probably) significant change in American jurisprudence. Indeed, the extension of debate is not a rupture in normative deliberation under any reasonable interpretation of that phrase. The Republican threat to re-write the rules to disallow the procedural motion — under transparently bogus appeals to Constitutional doctrine — sounds more like a “power-play” than the attempted filibuster war.

This strikes me as the heart of the matter — appealing to what you call “procedural liberalism” in discussions with libertarians and conservatives only makes sense in a world of sufficient symbolic commonplaces. If Hartz was correct that we Americans are all just irrational Lockeans, then you’ve got hope. But my faith in Hartz’s thesis is being eroded by the ascendency of illiberal elements, many of whom hold the reigns of institutional power.

Regardless, you’re right about campus radicalism and campus speech codes.

(I’m not saying I know what to do.)

As always, your open-mindedness–your commitment to living out the classical liberal creed in all its proceduralness–is profound. I’m a lot more willing to embrace the possibility of transformative, communal, radical politics than you, but on a prudential level your warning is pure wisdom. A great post.

I read today a post by Ed Kilgore (here) that vaguely touches on a similar mental habit, one that conspires to allow the thinker to believe they know longer need to engage in liberal discourse and can go straight to radical critique: the discovery of secret agenda that “unlocks” (as you put it) one’s opponents, the I’m on to you trope. “Why, he’s just a Straussian–that explains everything! No more need to talk to that fascist!” And so on and so forth. Good stuff.

I believe this critique is shared by a type that you don’t mention, a type that I’ll call, for want of a better term, the “radicalized liberal.” Though maybe partisan (or just seriously p.o.’ed) liberal would be a more apt term, I’m not sure. Anyway, as I see it, this type is radicalized not in terms of substance (i.e., this liberal type does not say, The system is so hopelessly corrupt/compromised/etc that the only response is to stand outside the system, with maybe the ocassional attempt to disrupt it as means of protest or bearing witness or what have you) but rather in terms of methods/tactics (given the success of “conservatives,” who have sacrificed the institutions and practices of liberal democracy in their pursuit of power, we need to adopt some of their tactics in order to reclaim/recapture the institutions and practices that have been abandoned).

To take the failed filibuster as an example. The line that I heard and read most often went something like this: “We need to stand up and fight on principle.” This is not necessarily a radical position; and the attempt to use a filibuster in order to take a stand on principle strikes me as well within the bounds of the procedural liberalism of which you speak. After all, while it is obviously an obstructionist tactic, a filibuster is not really a disruption of the system. It is carried out from within the system, in accordance with a clearly defined set of rules and procedures. Nobody (or almost nobody, I guess) who supported a filibuster said, And if the other side gets the 60 votes, we’ll walk out en masse, or storm the Chamber, or bring out the puppets. To attempt a filibuster in accordance with the rules and procedures which govern a filibuster is to accept, and to at least tacitly endorse, those very rules and procedures. And as I understand it, one reason why the “gang of 14” arrived at a deal (where Dems agreed to filibuster judicial nominees only under “extraordinary circumstances”) was that even some Republicans felt uneasy/queasy about a “nuclear option” which would throw out a set of rules that had been developed/refined over the course of two centuries or so of liberal democratic procedure. You can say that a filibuster that is bound to fail is an empty gesture, nothing more than a piece of theatre. But I don’t see how you can equate a lawful, procedurally bound protest (i.e., a filibuster attempt) with, say, an unlawful smashing of a Seattle Starbucks window.

So the problem (or one problem) that these “radicalized” or partisan or
I’m-mad-as-hell-and-I’m-not-going-to-take-it-anymore liberals face is that even when (or I should say, even though) they use liberal proceduralist means, the game is now rigged such that procedural liberalism in the service of substantive liberalism is now equated with window-smashing, if not bomb-throwing. Which I think goes some way toward explaining the “ew hippie” trope (No, no. I’m not like *those* people. I’m all about Thomas Paine and Thomas Jefferson and the Declaration and the Constitution, and so on). But which doesn’t really offer a way out/forward, given the erosion of liberal proceduralist practices and institutions.