Beginning in the late 1970s, an offshoot of Marxism known as Critical Legal Studies took hold in the American legal academy. Born in May 1977 at a law and society colloquium at Madison, Wisconsin, Critical Legal Studies was an outgrowth of postmodernism. This school of thought held that the central project of philosophy is to “deconstruct” language and inevitably existing political and social institutions as well. Whoever controlled the law controlled society, the Crits noted, and they did their best to control the law where it counted most: the academy and the courts.
By Andrew Thomas | April 15, 2014
Obama as activist HLS studentProf. Duncan KennedyProf. Roberto Unger President Barack Obama
President Barack Obama took office in 2009 amid a major recession. He promptly exploited the economic situation to pursue a grand and sweeping agenda of growing government. The theories he embraced went far beyond his campaign rhetoric, as he pushed policies that sought to reshape fundamentally the U.S. economy and society. The liberal model he embraced was extreme and alien to most people who voted for him – but not the students and alumni of his alma mater, Harvard Law School (HLS), an institution whose aggressive liberalism shaped the beliefs and values of the future president (see Part 1).
Barely a month after entering the Oval Office, Obama signed a $787 billion “stimulus” package. Obama claimed the bill would create or save 3.5 million jobs over the next two years. This prediction proved wrong but provided useful political camouflage for the bold experiment he was beginning. The hefty appropriations ladled out pork-barrel spending to traditional Democratic constituencies and greatly expanded the federal fiscal footprint. While less than 5 percent of the spending invested in the nation’s infrastructure, some $252 billion went to income-transfer payments, cash or benefits to individuals unrelated to economic growth (unemployment, food stamps, and other entitlements).
Less than a week after signing the stimulus bill, Obama pursued a federal takeover of much of the banking industry. His administration revamped the terms of federal emergency aid to troubled financial firms, a course that, the Washington Post noted, “could culminate with the government nationalizing some of the country’s largest banks by taking a controlling ownership stake.” Even as a growing number of banks and brokerage houses sought to return the federal money lent the year before to gain more corporate freedom, Obama sought to convert government stock from preferred to common, which would give the federal government potentially a controlling interest in those institutions.
The new administration bailed out the auto industry and assumed direct management of the affected corporations. The most stunning act was the firing of General Motors Chairman Rick Wagoner in March 2009. General Motors had received $13.4 billion in government aid and was seeking $16.6 billion more. The price for this new money, Obama made clear, was changes in the company’s management. The Los Angeles Times noted this move was “as dramatic a reach into the boardroom of an independent American corporation as the government has made in decades, possibly since the 1930s.” Left alone were autoworker unions, which had heavily supported Obama’s campaign.
Obama defended his actions. He insisted in a November 2010 interview on “60 Minutes” that “we were taking these steps not because of some theory that we wanted to expand government.” The economy demanded such action, which was not part of a “governing philosophy as a classic, traditional, big-government liberal.”
Yet five years later, it is clear these claims were untrue. Obama’s initial programs were but preliminary steps in the pursuit of an aggressive liberal economic agenda which betrays a clear debt to socialist theory. The intellectual template Obama used was learned at Harvard.
At the time Obama matriculated at HLS in 1988, America and the Soviet Union, an explicitly Marxist nation, were in the final stages of the Cold War. For that reason, it was considered out of bounds among liberals to describe someone’s philosophy as Marxist, even when it clearly was. “Are you questioning my patriotism?” was the stock, indignant response by a politician or public figure to such a question. Nevertheless, Obama attended a law school where Marxist-inspired thought was very influential, and a large bloc of the faculty was avowedly Marxist. In the same year Obama started law school, historian Paul Johnson published a book, Intellectuals, which noted, “Karl Marx has had more impact on actual events, as well as on the minds of men and women, than any other intellectual in modern times.” This was demonstrably true of the students and faculty of HLS.
Beginning in the late 1970s, an offshoot of Marxism known as Critical Legal Studies took hold in the American legal academy. Born in May 1977 at a law and society colloquium at Madison, Wisconsin, Critical Legal Studies was an outgrowth of postmodernism. This school of thought held that the central project of philosophy is to “deconstruct” language and inevitably existing political and social institutions as well. Building on Marx’s work, French philosophers Jacques Derrida and Michel Foucault argued that reality itself is essentially incomprehensible, and that human institutions reflect simply the preferences of the powerful.
Proponents of Critical Legal Studies, known as “Crits,” applied postmodernism to law. Arguing that the wealthy and powerful manipulated the law to exploit the poor, Crits considered all law a sham, a bogus attempt to justify the existing power structure. They viewed legal theory as a sledgehammer that could smash apart the corrupt societal infrastructure erected by white males. They generally failed to articulate what would take the place of the legal system they targeted, the replacement regime they offered being but a vague variant of whatever interest-group liberalism was the trend of the day. Essentially, they advocated destruction of legal norms for its own sake, with a fuzzy nihilism to take its place.
Whoever controlled the law controlled society, the Crits noted, and they did their best to control the law where it counted most: the academy and the courts. Robert Bork estimated (correctly I believe, based on my own contemporary experiences at HLS) that about one-third of the HLS faculty subscribed to Critical Legal Studies when Obama was a student there.
From its inception, Critical Legal Studies was a cause as much as a theory. Adherents flocked to HLS to proselytize on its behalf. One was Roberto Unger, who believed “Legal thought and legal education” were “ready for revolution.” A native of Brazil whose writings reflected a debt to liberation theology, the theory of violent class warfare invoked by Marxist guerrilla movements throughout Latin America, Unger described Critical Legal Studies as a kind of “superliberalism.” Unger explained that Critical Legal Studies “pushes the liberal premises … to the point at which they merge into a large ambition: the building of a social world less alien to a self that can always violate the generative rules of its own mental or social constructs and put other rules and other constructs in their place.” By this he meant that Critical Legal Studies would wipe out the existing “metaorder,” or politico-legal structure of the nation, and replace it with a Marxist philosophical and ethical system in which there were no clear rules of right and wrong, only an amorphous dedication to class warfare.
Unger acknowledged that this grand demolition may seem “an act of intellectual self-destruction.” But “this apparent intellectual suicide allows the basic intention and method of critical social thought to triumph over ideas that only imperfectly apply the method and express the intention.” Unger thought the natural wellspring of intellectual revolution was academia. “The most immediate setting of our transformative activity is also on its face the most modest: the law schools,” he explained. This would make attorneys agents of leftist social change.
Buttressing Unger’s seminal theories of class struggle and interest-group politics was the work of another HLS professor. Duncan Kennedy was a tall man who cut a striking figure with his thinning hair, shaggy beard, and faded denim jacket. He described communists as a “victim group,” and in fact “the most ‘like us’ of victim groups”—“us” meaning Crits. African-Americans and poor people could not be held accountable for much if any wrongdoing; they “deserved unlimited sympathy and unquestioning respect because their lives were harder than ours and because many people other than ourselves were prejudiced against them.”
Using Marxist rhetoric, Kennedy argued the law exists “to secure both particular ideological and general class interests of the intelligentsia in the social and economic status quo.” He urged his fellow professors to “find ways to use your … normal classroom interaction as a political tool, as a political weapon, as an aspect of political activist practice.” His most famous law-review article was “Roll Over Beethoven,” co-authored with another Crit, Peter Gabel, in the Stanford Law Review. A critic in the Michigan Law Review described the work as sounding like “a pair of old acid-heads chewing over a passage from Sartre.”
The “guerrillas with tenure” who taught law students, Kennedy said, could prod both academia and, inevitably, the courts further to the left. Toward this end, the Crits fought to admit more students with activist backgrounds and to hire more Crit professors. Fierce battles over faculty appointments were the result, arising regularly in the late 1980s and throughout the 1990s. Kennedy and other Crits also urged the faithful to colonize other law schools with Crits to extend the empire.
Their most influential apostle, Barack Obama, already was among them. Their theories helped imbue an easygoing socialism among the student population. These were notions they would carry with them in their careers and their professional and personal circles. Obama’s forceful expansion of federal power over the American economy has proved the most spectacular political achievement of Critical Legal Studies and the theories that underlay it.
Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.