Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism

ions such as justice, fairness, and equality. Posner argues that “academic philosophy” is “a field that has essentially no audience among judges and lawyers—let alone among politicians—even when philosophy is taken up by law professors . . . who think it should influence law.” Legal pragmatists reject “abstract theorizing of which professors of constitutional 62. See J.M. Balkin, The Declaration and the Promise of a Democratic Culture, 4 WIDENER L. SYMP. J. 167, 180 (1999) (“Constitutional stories constitute us as a people with a purpose and a trajectory: They remind us what we have done in the past and therefore what we should be doing today. They explain to us where we have been and therefore where we should be going.”). 63. POSNER, supra note 28. 64. RICHARD A. POSNER, PUBLIC INTELLECTUALS: A STUDY OF DECLINE (2001). 65. POSNER, supra note 6, at 11. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 698 The Yale Law Journal [Vol. 113: 687 law are enamored, in which decisions are evaluated by reference to abstractions common in law talk such as fairness, justice, autonomy, and equality.” Further, Posner argues, when pragmatists examine a constitutional issue, such as “whether per-pupil expenditures on public school education should be equalized across school districts,” the pragmatist avoids “question-begging vacuities (such as ‘equality’ and ‘fundamental rights’).” “What sensible person,” he asks, “would be guided in such difficult, contentious, and fact-laden matters by a philosopher or his law-professor knock-off?” One can understand Posner’s concerns. Much theoretical academic work participates in a private conversation far removed from the pressing social problems of the day. Philosophical discourse, whether in academic philosophy or in legal theory, can be overly abstract, filled with jargon, and disconnected from current practice. The result is an insular world in an ivory tower, where academics talk mostly among themselves, producing a parade of half-baked ideas and impractical suggestions for reform. In making this criticism, Posner echoes Dewey, who also staunchly criticized the academy for theorizing abstractly without attempting to connect theory to current practice. Dewey attacked theorizing that “becomes arbitrary, aloof—what is called ‘abstract’ when that word is used in a bad sense to designate something which exclusively occupies a realm of its own without contact with the things of ordinary experience.” Dewey criticized philosophy that attempted to treat itself as something more lofty than other forms of knowledge, as “a realm of higher Being” with “air purer than that in which exist the making and doing that relate to livelihood.” Like Dewey, Posner is right to criticize academic theorists who view their theorizing as a higher and purer activity than disciplines that employ empirical methods of analysis. Dewey was very critical of academic departments for creating pseudoproblems—taking problems from general experience and converting them into philosophical puzzles with a life of their own, disconnected from their origins in experience. Philosophy should begin in ordinary life with 66. Id. at 79. 67. Id. at 79-80. 68. Id. at 80. 69. JOHN DEWEY, EXPERIENCE AND NATURE 9 (Open Court Publ’g Co. 2d ed. 1929) (1925), reprinted in 1 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 3, 17. 70. JOHN DEWEY, THE QUEST FOR CERTAINTY 14 (1929), reprinted in 4 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 3, 11-12. 71. See DEWEY, supra note 69, at 27-28, reprinted in 1 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 34 (“Empirical method finds and points to the operation of choice as it does to any other event. Thus it protects us from conversion of eventual functions into antecedent existence: a conversion that may be said to be the philosophic fallacy, whether it be performed in behalf of mathematical subsistences, esthetic essences, the purely physical order of nature, or God.”). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 699 the concerns, pressures, and facts of contemporary existence. For Dewey, “Philosophy recovers itself when it ceases to be a device for dealing with the problems of philosophers and becomes a method, cultivated by philosophers, for dealing with the problems of men.” Accordingly, Dewey believed a “first-rate test” of the value of any philosophy consists in its answer to this question: “Does it end in conclusions which, when they are referred back to ordinary life-experiences and their predicaments, render them more significant, more luminous to us, and make our dealings with them more fruitful?” If a philosophy is to meet this challenge, it must take as its starting point the problems generated by our everyday practices. Likewise, a philosophy of law, as Dewey observes, “cannot be set up as if it were a separate entity, but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.” Thus, as a pragmatist, Posner is right to suggest that those interested in improving legal methods and procedures should not look to academic philosophy or law departments for ready-made answers. He is also right to insist that constructive solutions usually require in-depth investigations of the facts. Posner also astutely argues that work should be done in what he calls the “empirical lowlands.” As Posner observes, “The theoretical uplands, where democratic and judicial ideals are debated, tend to be arid and overgrazed; the empirical lowlands are fertile but rarely cultivated.” The uplands are thus theoretical discourses that ask questions about the nature of justice, equality, and the good. The lowlands are efforts to explore empirically the results of our social practices. It is one thing to argue about the justification for policies such as affirmative action by sparring over competing conceptions of fairness, but more important to the pragmatist is understanding the consequences of such rhetoric in practice. What results are produced by affirmative action policies? Posner, like Dewey, thinks that theoretically minded individuals concerned with questions of justice and the 72. See JOHN DEWEY, RECONSTRUCTION IN PHILOSOPHY 25-27 (1920), reprinted in 12 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, at 77, 94 (Jo Ann Boydston ed., 1976). 73. John Dewey, The Need for a Recovery of Philosophy, in CREATIVE INTELLIGENCE: ESSAYS IN THE PRAGMATIC ATTITUDE 3, 65 (1917), reprinted in 10 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 3, 46. 74. DEWEY, supra note 69, at 9-10, reprinted in 1 JOHN DEWEY: THE LATER WORKS, 19251953, supra note 11, at 18. 75. John Dewey, My Philosophy of Law, in MY PHILOSOPHY OF LAW: CREDOS OF SIXTEEN AMERICAN SCHOLARS 73, 77 (Julius Rosenthal Found., Northwestern Univ. ed., 1941), reprinted in 14 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 115, 117. 76. POSNER, supra note 6, at 3. 77. Id. at 3-4. Despite this observation, Posner continues to produce work in the “theoretical uplands” that calls for more work in the lowlands. 78. See, e.g., IAN AYRES, PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION 315-87 (2001) (discussing the empirical effects of affirmative action at FCC auctions). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 700 The Yale Law Journal [Vol. 113: 687 like could accomplish much more by investigating these conceptions in the context of particular practices. Not only would they help to ameliorate present problems, but they would also be submitting their ideals to the test of experience. Indeed, law is an excellent field for the pragmatist since it provides a forum to investigate concretely the meaning of our ideals. But Posner then takes a wrong turn. He equates philosophy exclusively to the work of academic departments in universities, and then he rejects philosophy wholesale. The practice of philosophy, however, is much broader than the practice of professors in academic institutions, and even the philosophy of the academy is far from monochromatic. Whether someone is a philosopher is a function of the questions she asks and the writing she does, not whether she is employed by a philosophy department. Philosophy is not the exclusive domain of academic philosophers; rather, it is the development of intelligent, critical, and reconstructive methods for approaching the problems of lived experience. Philosophy is something that everyone does or at least can do, not an insular club that only those in the ivory tower can join. Therefore, although the academic practice of philosophy often can be overly technical and disengaged from the problems of society, this does not imply that philosophy should be abandoned. Posner’s account of pragmatism, as rejecting a role for philosophical theory, stems in part from a misunderstanding of the pragmatic 79. Pragmatists like John Lachs have taken a different approach, based in part on a different understanding of the reasons for academic insularity. Lachs believes that the insularity is less a function of the subject matter that academics discuss, and more a function of institutional structures that reward and punish their behavior. Instead of concluding, as Posner does, that academic discussions are insular and therefore unimportant, he concludes that they are important but insulated. Accordingly, his recommendation is not to have the public ignore the academy, but rather to have the academy stop ignoring the public: If encouraging intellectuals to engage in public debate does not work, we may have to make it mandatory. . . . In the long run, intellectuals have to understand that they are on the payroll of the community in order, among other things, to warn us about our ways, to help us see our practices in perspective, to present arguments against what we are bent on doing, and, again and again, to present interesting alternatives. Their job is to shake up state and institutional orthodoxies, instead of working to preserve them. JOHN LACHS, A COMMUNITY OF INDIVIDUALS 8-9 (2003). In fact, even in the academy there have been considerable reconstructive projects involving the environment, health, art, education, politics, and to a lesser extent, law. E.g., LARRY HICKMAN, JOHN DEWEY’S PRAGMATIC TECHNOLOGY (1992) (developing the basis for a pragmatic criticism of modern approaches to understanding technology); RICHARD SHUSTERMAN, PRAGMATIST AESTHETICS: LIVING BEAUTY, RETHINKING ART (Rowman & Littlefield 2000) (1992) (exploring how pragmatist conceptions of aesthetics provide for richer imaginative and critical relationships to present art forms); BETH J. SINGER, PRAGMATISM, RIGHTS, AND DEMOCRACY (1999) (developing the implications of a theory of rights within a pragmatist tradition); SHANNON SULLIVAN, LIVING ACROSS AND THROUGH SKINS: TRANSACTIONAL BODIES, PRAGMATISM, AND FEMINISM (2001) (developing Dewey’s notion of “transaction” and its consequences for understanding gender); Glenn McGee, Pragmatic Method and Bioethics, in PRAGMATIC BIOETHICS 27 (Glenn McGee ed., 1999) (arguing that reconstructing the classic theory/practice dualism in the context of bioethics will enable recognition of the lack of neutrality of the bioethicist, “a community member who is intractably involved and invested and has particular interests”). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 701 reconstruction of the theory/practice relationship. Under the traditional model of the theory/practice relationship, philosophical theory is seen as offering a foundation for practice. One should learn the theory and then put it into practice. But pragmatists, such as Dewey, never expected theory to guide practice in this way and never pretended that practice was independent of theory. Rather than embrace this dualism, the classical pragmatists sought to make practice more intelligent and more critical, in part by recognizing its theoretical dimension. This does not require theoretical reason capable of determining its goals outside of historical practices; rather it requires a critical and reconstructive approach to social institutions and practices. As Thomas Grey notes, “[T]hought always comes embodied in practices—culturally embedded habits and patterns of expectation, behavior, and response.” Insofar as the language of “justice” has been dominated by Kantian moralists who believe that our regulative ideals are the product of pure reason, then one can understand Posner’s reservations. Terms like “justice” and “freedom” are not backed up by reference to Platonic forms, but are the products of our human experience and contested history. We don’t look to theory to tell us what “democracy,” “justice,” “equality,” and “freedom” mean. We look to our experience of past practices. Under this view, “theory” is a statement of the insights, often generalized, formed as a result of the success and failures of these practices. As Dewey observed, “[W]e institute standards of justice, truth, esthetic quality, etc., in order that different objects and events may be so intelligently compared with one 80. Thomas C. Grey, What Good Is Legal Pragmatism?, in PRAGMATISM IN LAW AND SOCIETY, supra note 3, at 9, 12. 81. Dewey shared this concern: [M]any moral theories, some of them of considerable prestige in philosophy, have interpreted moral subject-matter in terms of norms, standards, ideals, which, according to the authors of these theories, have no possible factual standing. “Reasons” for adopting and following them then involve a “reason” and “rational” in a sense which is expressly asserted to be transcendent, a priori, supernal, “other-worldly.” John Dewey, Ethical Subject-Matter and Language, 42 J. PHIL. 701, 711 (1945), reprinted in 15 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 127, 139. 82. As the person credited for the inception of American pragmatism, Charles S. Peirce, has pointed out, pragmatism has a theory of meaning that insists that to understand a concept is to understand the conceivable sensible effects of that concept. This does not mean one cannot use words such as “justice,” “fairness,” and “equality,” but that one must understand the meaning of the terms not by reference to Platonic forms, but by reference to the practical consequences they entail. CHARLES PEIRCE, How To Make Our Ideas Clear, in 1 THE ESSENTIAL PEIRCE: SELECTED PHILOSOPHICAL WRITINGS, 1867-1893, at 132 (Nathan Houser & Christian Kloesel eds., 1992); see also Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267, 305 (1997) (“[P]ragmatism clearly has nothing against distinctions, definitions, coherence, abstract argument, or theoretical edifices: it is at least an open question whether or not these tools of the intellect are or are not useful for human purposes.”). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 702 The Yale Law Journal [Vol. 113: 687 another as to give direction to activities dealing with concrete objects and affairs . . . .” The risk with Posner’s antiabstraction strategy is that it silences meaningful community discussion. Terms such as “justice” and “equality” are not only used in the academy, but also are part of popular social discourse. Many people talk about intrinsic goods and understand freedom as the ability to fulfill their desires. Whereas Dewey offers us tools to reconstruct the meaning of these terms by giving priority to experience, Posner advises us to avoid the terms. The result may be that they remain to do mischief having been insulated from critical attention. By eliminating philosophical theorizing, Posner discards pragmatic tools for transforming existing institutions, customs, and social norms. Without a role for philosophical theorizing, Posner’s pragmatism looks less to opportunities for criticism and reconstruction of unsatisfactory practices, the two hallmarks of the Deweyan pragmatic approach, and more to opportunities for affirmation and acquiescence to the status quo. Such an account of pragmatism leads critics such as David Luban to conclude that “[p]ragmatism represents in the arena of conceptual change what Burke represents in that of political change: a cautionary voice protesting those who seek to overthrow the amassed wisdom of generations on no better basis than the trifling speculations of philosophers.” Because it rejects any way to discuss the selection of ends, Posnerian pragmatism has little choice but to accept uncritically the dominant ends of society. This result is rather ironic considering Posner’s claim that pragmatism has no political valence. Since Posner’s pragmatism lacks the tools to engage in more radical social reform, it becomes a rather conservative philosophy in the Burkean sense. It ends up inhibiting the kinds of philosophical inquiries necessary to question the status quo. Therefore, the effects of Posnerian pragmatism are anything but neutral. 83. JOHN DEWEY, LOGIC: THE THEORY OF INQUIRY 216 (1938), reprinted in 12 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 1, 216-17. As Margaret Radin correctly argues, “[I]deal theory is also necessary, because we need to know what we are trying to achieve. In other words, our visions and nonideal decisions, our theory and practice, paradoxically constitute each other.” Radin, supra note 50, at 129. 84. See, e.g., Daniel A. Farber, Shocking the Conscience: Pragmatism, Moral Reasoning, and the Judiciary, 16 CONST. COMMENT. 675, 690 (1999) (reviewing POSNER, supra note 28) (“[M]oral conceptualism is an intellectual tumor that Posner would like to remove. But as with certain tumors, it is doubtful that we can excise every trace of these moral conceptions from the legal mind without fatally impairing vital functions.”). 85. See John J. Stuhr, Democracy as a Way of Life, in PHILOSOPHY AND THE RECONSTRUCTION OF CULTURE: PRAGMATIC ESSAYS AFTER DEWEY 37, 40 (John J. Stuhr ed., 1993) (observing that for Dewey, “philosophy is inherently criticism and reconstruction” (citations omitted)). 86. DAVID LUBAN, LEGAL MODERNISM 138 (1994). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 703 2. Philosophical Theory and Ends Posner’s pragmatism fails to point us toward productive inquiries for resolving legal and policy issues, for these issues involve the choice of ends. In contrast to Posner’s account, Deweyan pragmatism provides for a more fruitful inquiry into our selection of ends. Under this account of pragmatism, unlike Posner’s, philosophy plays an essential role. Dewey sees philosophy as critical inquiry, which aims to unsettle status quo assumptions and then provide guidance for projects of social reconstruction. Dewey observed that we often act out of habit, which is “an ability . . . formed through past experience.” While we need habit in order to function, habit can restrict the “reach” of our intellect, and can “fix its boundaries.” Social customs are aggregations of habits; they “persist because individuals form their personal habits under conditions set by prior customs.” The problem with customs is that they can be “inert” and can readily lead “into conformity, constriction, surrender of scepticism and experiment.” Maintaining institutions without change can lead to social stagnation. The goal of philosophical inquiry is thus to make habits “more intelligent,” by which Dewey means “more sensitively percipient, more informed with foresight, more aware of what they are about, more direct and sincere, more flexibly responsive than those now current.” Rather than be controlled by habit and custom, we must strive toward the intelligent control of habit. This involves criticizing current institutions and finding ways to reconstruct them. Of course, Dewey observed, we cannot abandon our institutions, as this would lead to “chaos and anarchy”; rather, we must “make over these institutions so that they serve under changing conditions.” As a pragmatist, Posner is wrong to shrug off the hard work of justifying the ends our legal system pursues. The pragmatist does have something to say about our ends. The pragmatist justifies her value commitments, in part, by analyzing their historical genesis. Guiding ideals 87. JOHN DEWEY, HUMAN NATURE AND CONDUCT 66 (1922), reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 4, 48. 88. Id. at 172, reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 121. 89. Id. at 58, reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 43. 90. Id. at 64, reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 47. 91. Id. at 128, reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 90. 92. Id. at 20, reprinted in 14 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 17-18. 93. John Dewey, Evolution and Ethics, 8 MONIST 321, 335 (1898), reprinted in 5 JOHN DEWEY: THE EARLY WORKS, 1882-1898, at 34, 48 (Jo Ann Boydston ed., 1967). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 704 The Yale Law Journal [Vol. 113: 687 such as “fairness,” “justice,” and “freedom” must be critically examined by looking to past experience. Posner complains that such ideals are empty abstractions, useless for assisting us in decisions. Yet they are rendered useless not because they are abstractions, but because insufficient effort is made to critically explore their genesis and the consequences of their deployment in various contexts. Pragmatists are committed to finding substantive sustenance for their guiding ideals through experiential inquiry. This requires difficult historical investigation and interpretation. There is no guarantee that one account will emerge as superior to all others, although many accounts, upon careful investigation, are shown to be wanting. If a particular view of justice or democracy is to be favored, it should be favored because of its past consequences and in light of its anticipated future consequences. Those in disagreement over political ends need not refrain from invoking considerations of justice, freedom, equality, and democracy, but they must not let matters rest there. They must explain the experiential basis for their choices. Given an assessment of our past experiences and practices, why should we prefer an account of democracy that tries to increase the participation of all citizens? Alternatively, why should we prefer to minimize the participation of most citizens? This is the discussion that we need to have. The pragmatist need not be a shallow empiricist who has something to say about means but nothing much to say about ends. The pragmatist need not eschew philosophical theorizing or discussion of regulative ideals. Far from being a mere method that provides little guidance as to our normative ends, pragmatism facilitates philosophical debates about them in ways that avoid appealing to hollow abstractions. Pragmatism is thus an invitation to a different kind of debate, a debate that the Posnerian pragmatist ignores. Posner is mistaken, therefore, when he proposes that there is nothing useful to be done in terms of critically assessing our value commitments. He appears to view ends as little more than mere tastes. As a result, he does not seem to believe that discussion about our ends will be very fruitful. This is why Posner ultimately recommends a diverse judiciary; at least different ends can be represented, even if discussing them won’t lead us anywhere. If Posner simply treats the selection of ends as the product of a judge’s individual choice, those ends become insulated from critical scrutiny. Pragmatism, by contrast, demands the critical assessment of our ends. 94. POSNER, supra note 6, at 76, 79-80. 95. As James Gouinlock points out in his seminal study on Dewey’s philosophy of value, one consequence of Dewey’s naturalism is the recognition that ends are part of historical processes and must be investigated as such. See JAMES GOUINLOCK, JOHN DEWEY’S PHILOSOPHY OF VALUE 81 (1972) (“[E]nds are always ends of a [historical] process. They are not discontinuous substances or events existing independently in nature.”). SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 705 Where did they come from? What conditions were they responding to? What have been the results? Who has benefited from their adoption? Who has suffered? Have they been democratically selected? As a result, the pragmatist would understand that any view of the best future must be informed by a view of who we are as a People—and this depends upon an interpretation of our history. As Justice Holmes correctly noted, the obligation to history is not a duty (as Dworkin would have it) but a necessity. Pragmatists recognize that ends are not ahistorical. Dewey noted that “personal desire and belief [are] functions of habit and custom.” We do not get our ends from some a priori source; they emerge from experience. And our values originate not just from our own experience, but from collective social experience, which has a long history and is embodied in our current habits, customs, and traditions. In this way, the past perpetuates itself; it has a hold on us. We cannot simply wipe the slate clean or assume a “tabula rasa in order to permit the creation of a new order.” We adopt the ends we do often because they are transmitted to us by our parents, education, and culture. Dewey argued that we must consider the history of any social end in both directions: its past and its future. “We must consider it with reference to the antecedents which evoked it, and with reference to its later career and fate.” We must look to the genesis of a particular end because [i]t arises in a certain context, and as a reaction to certain circumstances; it has a subsequent history which can be traced. It maintains and reinforces certain conditions, and modifies others. It becomes a stimulus which provokes new modes of action. Now when we see how and why the belief came about, and also know what else came about because of it, we have a hold upon the worth 96. See Daniel A. Farber, Legal Pragmatism and the Constitution, 72 MINN. L. REV. 1331, 1350 (1988) (“For a pragmatist the analysis must start—but not finish—with an examination of our constitutional text, history, and traditions.”). 97. Holmes wrote: The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown & Co. 1881). 98. JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 161-62 (1927), reprinted in 2 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 235, 336. 99. Id., reprinted in 2 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 336. 100. Id. at 162, reprinted in 2 JOHN DEWEY: THE LATER WORKS, 1925-1953, supra note 11, at 336. 101. John Dewey, The Evolutionary Method as Applied to Morality (pt. 2), 11 PHIL. REV. 353, 359 (1902), reprinted in 2 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 3, 26. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 706 The Yale Law Journal [Vol. 113: 687 of the belief which is entirely wanting when we set it up as an isolated intuition. Since ends do not emerge from a transcendent realm, the pragmatist should not simply accept her own ends uncritically. She must subject them to critical inquiry. According to Dewey, criticism occurs when we look “to see what sort of value is present” and “instead of accepting a value-object wholeheartedly . . . we raise even a shadow of a question about its worth.” This involves understanding the origins of our ends, the reasons for their existence, and whether these reasons warrant continued allegiance today. Through pragmatic criticism, we may discover that particular ends have merely survived through inertia or that the reasons for their existence no longer apply to our present situation. Therefore, to the extent that pragmatism is an “attitude,” it is one that is radical, for it is skeptical and experimental. The pragmatic temperament is one that is constantly prodding and questioning; it focuses on change and transformation. Although the pragmatist need not be committed to radical ends, she is committed to a radical kind of criticism and experimentation. This does not mean that pragmatism must reject the status quo, but it does mean that the pragmatist must be wary of accepting inherited ends uncritically. Far from being mundane and banal, pragmatism takes up the hard work of removing the blinders of existing habits, customs, and conventions by testing accepted beliefs and “truths.” The result of this attitude is a critical edge. C. The Implications of Legal Pragmatism In a number of examples sprinkled throughout the book, Posner attempts to demonstrate how his legal pragmatism works in practice by addressing specific legal and policy issues. Posner tackles a wide variety of topics, including Bush v. Gore and the 2000 election deadlock, the Monica Lewinsky scandal, antitrust law, Clinton v. Jones, judicial review, and liberty and security after September 11. In many instances, Posner claims that his conclusions are pragmatic, but this characterization becomes dubious when his reasoning is considered more carefully. In particular, we focus on his discussions of judicial review and liberty versus security. 102. Id., reprinted in 2 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, supra note 72, at 2627. 103. DEWEY, supra note 69, at 324, reprinted in 1 JOHN DEWEY: THE LATER WORKS, 19251953, supra note 11, at 299. 104. We have selected these discussions because Posner has discussed many of his other examples more extensively in other books. For example, Posner has discussed Bush v. Gore in RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001); antitrust law in RICHARD A. POSNER, ANTITRUST LAW (2d ed. 2001); and SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 707 Posner attempts to reach legal and policy conclusions from his pragmatism, but it is too thin to justify his conclusions, and Posner often ends up contradicting his own pragmatic approach. In contrast, the alternative account of pragmatism we have developed in previous Sections suggests more productive forms of inquiry into these issues. Our goal is not to engage in a direct debate with Posner over his conclusions, even though we would probably reach different ones. Rather, we aim to critique the way that Posner goes about reaching his conclusions, his method of reasoning and analysis. 1. Judicial Restraint Versus Judicial Activism Posner argues that an “implication for law of Dewey’s epistemology is that courts should either have no power to invalidate legislation or exercise it only in extreme circumstances, when faced by a law patently unconstitutional or utterly appalling.” This is the language of judicial restraint, and Posner is alluding to Justice Holmes’s famous “puke test,” which holds laws unconstitutional only when they are so despicable that they make one puke. For Posner, “By invalidating legislation, courts prevent political experimentation.” “In Dewey’s intellectual universe, invalidating a statute is not just checking a political preference. It is profoundly rather than merely superficially undemocratic . . . . It places expert opinion over the distributed intelligence of the mass of the people and prevents the emergence of the best policies through intellectual natural selection.” Thus, Posner argues that Deweyan pragmatists on their own terms must support judicial restraint. This conclusion is false, and the argument that leads to it is invalid. In contrast to Posner, who speaks in a generalized, ahistorical manner, the Deweyan pragmatist would be reluctant to conclude that judicial restraint, or any judicial style, would be better at all times and in every situation throughout history. Holmes judged at a different point during our history; perhaps in his time judicial restraint was a pragmatic response. But it certainly doesn’t mean that judicial restraint is always demanded by pragmatism. To justify judicial restraint, the pragmatist would examine why it is best at this particular point in our history. Ironically, just a few pages earlier in the book, Posner seems to recognize this point. He extols Chief Justice John Marshall as an exemplar of pragmatism in judging. Posner the Clinton scandal in RICHARD A. POSNER, AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999). 105. POSNER, supra note 6, at 121. 106. Id. 107. Id. at 122. 108. See id. at 86. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 708 The Yale Law Journal [Vol. 113: 687 defends Marshall against attacks that he was too formalistic and relied more on rhetoric than reason. “‘Marshall created judicial review as a pragmatic response to the inevitable crisis over the role of the judiciary in the constitutional scheme.’” Marshall, whose judicial style certainly cannot be described as judicial restraint, nevertheless was pragmatic according to Posner because he had an “extraordinary fit with his times.” If Posner is correct about Marshall, then it certainly does not follow that the pragmatist should favor judicial restraint over activism in principle. Instead, if Posner were to argue pragmatically for judicial restraint, he would need to justify why, based upon past experience and an analysis of our current problems, judicial restraint is the most appropriate response at this time in our history. In light of the analysis of Marshall, one would expect Posner to recognize that judicial restraint might not be appropriate in all contexts, for all cases. Posner seems to argue that since pragmatism advocates experimentation in general, legislative experimentation should receive deference from pragmatist jurists. But even if one were to accept such a commitment to experimentation at face value, it would not follow that judicial experimentation should be ruled out. Pragmatic experimentation has no less value when it is practiced by the judiciary, and Posner provides no reason why it should be limited merely to legislation. Beyond this, one must be careful not to turn a commitment to experimentation into its opposite. The claim of the classical pragmatists was that scientific methods work better for grappling with our problems than adherence to absolutes. It would be ironic to maintain an absolutist commitment to experimentation in the name of pragmatism. The fact that pragmatists recognize the experimental method’s virtues does not mean they endorse experimentation in all forms and contexts. The pragmatic commitment to experimentation, for example, doesn’t lead pragmatists to favor the Nazi experimentation on humans. Pragmatism is a commitment to an experimental method, one that keeps testing its conclusions in experience. It is not a commitment to experimentation for its own sake. Striking down a law, even one that is “experimental,” can still be a pragmatic response. For example, legislatures can fail to be democratic. As Posner himself recognizes, interest groups can have an overly strong influence on legislation. Or legislatures can fail to adopt the appropriate 109. See id. at 92. 110. Id. at 91 (quoting ROBERT JUSTIN LIPKIN, CONSTITUTIONAL REVOLUTIONS: PRAGMATISM AND THE ROLE OF JUDICIAL REVIEW IN AMERICAN CONSTITUTIONALISM 168 (2000)). For a discussion of contemporary jurisprudential accounts of judicial review, see LIPKIN, supra. 111. POSNER, supra note 6, at 92. 112. Id. at 198. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 709 means to achieve the stated end of a law. Judges, in part due to the relatively insulated nature of the judiciary, can subject laws to critical scrutiny when powerful lobbies seek to prevent legislatures from doing so. As one of us has written elsewhere, the judiciary has the potential “to make institutions more democratic and humane, to force officials to base their policies on the best empirical research of the day, to be guided by democratic values, to be more humble and skeptical of their own practices.” Additionally, Daniel Farber observes that “[f]or the pragmatist . . . the question of the advisability of judicial review turns on its usefulness for promoting a flourishing democratic society—democratic not just in the sense of ballot casting but also in the sense that citizens are in charge of the intelligent development of their lives.” Thus, both judicial activism and restraint can be pragmatic, even democratic, responses to the problems of the present. 2. Liberty Versus Security Posner also applies his pragmatism to an extensive discussion of civil liberties and security. Posner contends that civil libertarians are unpragmatic when they treat “our existing civil liberties—protections of privacy, of the freedom of the press, of the rights of criminal suspects, and the rest—as sacrosanct and insisting therefore that the battle against international terrorism must accommodate itself to them.” Posner engages in a cost-benefit analysis between liberty and security, and concludes: “A pragmatist would say [civil liberties] should be curtailed to the extent that the beneficial consequences for the safety of the nation . . . outweigh the adverse impact on liberty.” Echoing Chief Justice Rehnquist, Posner argues that although civil liberties should be “curtailed in time of war or other national emergency,” civil libertarians wrongly fear that this curtailment will serve as a “precedent in time of peace.” Posner writes: “The events of September 11 revealed the United States to be in greater jeopardy from international terrorism than had been 113. See, e.g., Rosen, supra note 28, at 596 (“The project of independent empirical inquiry is so inherently aggressive, and the likelihood that legislatures (especially state legislatures) have acted sloppily or irrationally is so great, that a pragmatist such as Posner might find it hard, in practice, to restrain himself from substituting his own judgment for that of the political branches by following the facts to their logical conclusion.”). 114. Solove, supra note 20, at 1018. 115. Farber, supra note 96, at 1347-48. 116. See POSNER, supra note 6, at 292-321. 117. Id. at 296. 118. Id. at 298. 119. Id. at 304. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 710 The Yale Law Journal [Vol. 113: 687 believed by most people until then . . . . It stands to reason that such a revelation would lead to our civil liberties being curtailed.” Posner seems to be suggesting that civil libertarians are unpragmatic because they adhere to rights as absolutes. Posner attacks a caricature of the civil libertarian argument, since many civil libertarians are pragmatists, not absolutists. Posner also attacks civil libertarians when they offer “historical examples of supposed overreactions to threats to national security.” In contrast, he argues that history reveals that government officials have “disastrously underestimated these dangers” rather than exaggerated them. He elaborates: Actually, the lesson of history is the opposite. Officialdom has repeatedly and disastrously underestimated these dangers—whether it is the danger of secession that led to the Civil War, or the danger of a Japanese attack on the United States that led to the disaster at Pearl Harbor, or the danger of Soviet espionage in the 1940s that accelerated the Soviet Union’s acquisition of nuclear weapons and by doing so emboldened Stalin to encourage North Korea to invade South Korea in 1950, or the installation in 1962 of Soviet missiles in Cuba that precipitated the Cuban missile crisis, or the outbreaks of urban violence and political assassinations in the 1960s, or the Tet Offensive of 1968 in the Vietnam War, or the Iranian Revolution of 1979 and subsequent taking of American diplomats hostage, or the catastrophe of September 11, 2001. But these examples do not simply involve a tradeoff between liberty and security. They are failures of foreign intelligence or political judgment. The point of the civil libertarians is that the government has often overreacted in curtailing liberty in times of crisis. Posner’s examples involve the failure to anticipate security threats. Without demonstrating how curtailing liberty would have improved our ability to avert these events, Posner’s examples have little relevance. Posner then contends that to the extent that the government did overreact by curtailing liberty in times of crisis, we should not be concerned, since “[t]he curtailment of civil liberties in the Civil War, World War I (and the ensuing ‘Red Scare’), World War II, and the Cold War did not outlast the emergencies.” But curtailments of liberties harmed thousands of innocent citizens, sometimes quite severely. Just because the 120. Id. at 298. 121. Id. at 296. 122. Id. at 298. 123. Id. at 298-99. 124. Id. at 304. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 711 government eventually realizes it overreacted and apologizes doesn’t set everything right. Apologies are meaningful when they guide future action. In light of a history marred by frequent misguided responses to threats, a pragmatic response would counsel caution. For example, in the early years of J. Edgar Hoover’s reign over the FBI, from 1919 to 1920, the government rounded up over 10,000 suspected communists, many without warrants. In 1942, in the name of national security, the government rounded up around 120,000 people of Japanese descent living on the West Coast and imprisoned them in internment camps. In a series of cases, including Korematsu v. United States, the Court upheld the internment as constitutional under “most rigid scrutiny.” Few today would defend Korematsu, but Posner, who is candid and unafraid to take controversial positions, appears to support it. He asks: “If the Constitution is not to be treated as a suicide pact, why should military exigencies not influence the scope of the constitutional rights that the Supreme Court has manufactured from the Constitution’s vague provisions?” The internment, however, has long been acknowledged to have been a terrible mistake. Even the United States government has formally apologized. Posner responds that we must be wary of lessons we draw from the twenty-twenty vision of hindsight; just because the government’s fears that Japanese Americans were engaged in dangerous acts of espionage later proved to be false does not mean that at the time of the internment the government was unjustified in taking action. But there was not much evidence to support the government’s claims that the internment was necessary or even that there was a significant threat posed by Japanese Americans. Given historical tendencies of racial prejudice and the dangers of making racial distinctions, the decision to carry out the internment should have been viewed with great skepticism, especially considering the fact that German Americans were not subjected to similar treatment. Instead of analyzing the facts, however, the Supreme Court simply deferred to the judgment of the government officials, accepting their claims about the danger posed by Japanese Americans without critical scrutiny and without demanding supporting evidence. Even if Posner is right to worry 125. See CURT GENTRY, J. EDGAR HOOVER: THE MAN AND THE SECRETS 75-76, 83, 93 (1991). 126. ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN INTERNMENT 38 (2001); see also Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 YALE L.J. 489 (1945). 127. 323 U.S. 214 (1944). 128. Id. at 216. 129. POSNER, supra note 6, at 294. 130. See COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED (1982). 131. The analysis of the Court in Korematsu was based in large part on the factual analysis in an earlier case, Hirabayashi v. United States, 320 U.S. 81 (1943). In Hirabayashi, the Court SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 712 The Yale Law Journal [Vol. 113: 687 about the ease with which backward-looking criticism ignores the fears of the moment, this does not imply that we must affirm those fears as legitimate. In addition to the Red Scare and Japanese internment, the McCarthy-era hunt for communists during the 1950s has also been shown to have been a severe overreaction. Recently released transcripts of secret Senate hearings suggest that McCarthy may have deliberately misled the public about the threat. The anticommunist movement resulted in terrible harm to many individuals. Those exposed as communists faced retaliation in the private sector, with numerous journalists, professors, entertainers, and others fired from their jobs and blacklisted from future employment. Ellen Schrecker notes that federal agencies exaggerated “the danger of radicalism” because of the “desire to present themselves as protecting the community against the threat of internal subversion.” Historians also argue that the anticommunist movement was not merely a response to security concerns, but also a means for carrying out the right-wing agendas of opportunistic politicians. The pragmatist seeks to avoid these mistakes from occurring again; she does not view them as inevitable. She studies the past to see if there are better ways to distinguish the true threats from the manufactured ones. In the past, government officials have seized upon fears of national security to pursue their own personal agendas and prejudices. At the very least, an examination of our history should make us more guarded and skeptical when the government seeks to eliminate liberty in the name of security. After September 11, the pattern appeared to be recurring. The government rounded up thousands of people, restricted attorney-client confidentiality, instituted military tribunals, secretly detained and interrogated people, and increased electronic surveillance. Posner, however, takes issue with those public intellectuals such as Bruce Ackerman, Jeffrey Rosen, Michael Dorf, Ronald Dworkin, and Jack Balkin who stepped forward to support civil liberties. He criticizes them for concluded that it “is not for any court to sit in review of the wisdom of [government officials’] action or substitute its judgment for theirs.” Id. at 93. 132. See, e.g., Sheryl Gay Stolberg, Transcripts Detail Secret Questioning in 50’s by McCarthy, N.Y. TIMES, May 6, 2003, at A1. 133. See ELLEN SCHRECKER, THE AGE OF MCCARTHYISM: A BRIEF HISTORY WITH DOCUMENTS 76-86 (1994); see also Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1, 13-71 (1991). 134. SCHRECKER, supra note 133, at 10. 135. See, e.g., id. at 92-94. 136. See STEPHEN J. SCHULHOFER, THE ENEMY WITHIN: INTELLIGENCE GATHERING, LAW ENFORCEMENT, AND CIVIL LIBERTIES IN THE WAKE OF SEPTEMBER 11 (2002). 137. See POSNER, supra note 6, at 311-15. For the articles Posner critiques, see Bruce Ackerman, Don’t Panic, LONDON REV. BOOKS, Feb. 7, 2002, at 15; Jack M. Balkin, Using Our Fears To Justify a Power Grab, L.A. TIMES, Nov. 29, 2001, at B15; Ronald Dworkin, The Threat SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 2003] Radical Pragmatism 713 being unpragmatic because legal thinkers simply lack the expertise to understand international terrorism and to assess security risks adequately. But instead of offering a pragmatic evaluation of the full range of consequences to these governmental actions, Posner merely states abstractly that “liberty” must be sacrificed to protect “security.” Posner appears to assume that liberty and security must be mutually exclusive, an assumption that is far from correct. Historically, America has remained safe and secure despite its traditional support of civil liberties. Might our tradition of civil liberties contribute to our safety? Not only may curtailments of liberty bring us no greater security, but they also may lead to insecurity. The pragmatist would certainly entertain this question and would not be so fast to assume a dichotomous tradeoff between liberty and security. In fact, following the historical pattern in which Posner finds comfort, the Inspector General of the Department of Justice recently reported that the government overreacted after September 11 and improperly rounded up numerous individuals. For Posner, this does not present much of a problem, because overreaction is what normally happens in times of crisis. The pragmatist, unlike Posner, would not confuse explanation for excuse. Pragmatists would look to history and think about how we could better grapple with crises and the tendency to respond with misguided measures that often involve the use of racial and ethnic categories. D. Reconstructing Legal Pragmatism Posner presents pragmatism as a move away from abstract philosophical theorizing and toward common sense. In his view, pragmatism amounts to antifoundationalism coupled with a commitment to “reasonableness” and being “realistic.” Posner has attempted to strip pragmatism down to the bone, but in doing so he has distorted pragmatism to such an extent that it not only diverges from the ideas of the classical pragmatists, but runs counter to them. Posner’s rejection of philosophical theory renders his pragmatism unable to tell us anything about how to choose our ends. At most, then, Posnerian pragmatism can help us focus on selecting the most efficient means to achieve our given ends; it amounts to little more than an exhortation to be more empirical in assessing the to Patriotism, N.Y. REV. BOOKS, Feb. 28, 2002, at 44; Jeffrey Rosen, Holding Pattern: Why Congress Must Stop Ashcroft’s Alien Detentions, NEW REPUBLIC, Dec. 10, 2001, at 16; and Michael C. Dorf, What Is an “Unlawful Combatant” and Why It Matters, WRIT, Jan. 23, 2002, at http://writ.news.findlaw.com/dorf/20020123.html. 138. POSNER, supra note 6, at 316. 139. Id. at 296-97. 140. See Eric Lichtblau, U.S. Report Faults the Roundup of Illegal Immigrants After 9/11, N.Y. TIMES, June 3, 2003, at A1. SULLIVANSOLOVEFINAL4.DOC 12/8/2003 12:00 PM 714 The Yale Law Journal [Vol. 113: 687 efficiency of our means. But legal and policy issues often cannot be resolved without examining our ends. This is especially true with the kind of contentious public law issues that Posner often addresses. Posner reaches conclusions on these issues, but as we demonstrated, he does not reach them pragmatically—even on his own terms. The deficiencies of Posner’s pragmatism are caused in large part by his characterization of guiding ideals such as justice, equality, and freedom as mere empty abstractions, and his subsequent refusal to engage them. This is a form of the theory/practice dualism, and it ends up supporting a very conservative view of the everyday practices in which we engage, such as the appropriate distribution of opportunities and resources. In his zeal to attack insular academic philosophical theorizing in particular, Posner inexplicably rejects philosophical questioning about our guiding ideals in general. But everyday practices have a theoretical dimension; guiding ideals are internal to our practices, not transcendent abstractions. Posnerian pragmatism thus insulates existing practices from critical examination, inhibiting the ability to transform them. In doing so, Posner’s pragmatism departs dramatically from the pragmatic tradition championed by William James and John Dewey. Pragmatism does not reject a role for moral theorizing but recommends instead that we critically reconstruct our normative ideals by testing them in experience. The fact that ideals are not fixed absolutes but are subject to revision and change doesn’t expose the bankruptcy of ideals; nor does it mean that we should abandon any discussion of ideals or ends, since they are essential for guiding our inquiries and practices. It means instead that, as pragmatists, we must be willing to bring our ideals back down to earth, to recognize their origin in past experience, and to subject them to criticism and reconstruction as we employ them in present experience under changed