Liberalism, the Founding, and American Criminal Justice

Brian M. Murray*

In the past decade, two groups have taken aim at the American political and legal experiment: critics of modern liberalism and contemporary criminal justice reformers. Liberal critics point to the corrosive effect of liberal ideas on governmental, legal, social, and private institutions. Criminal justice critics lament systemic racism and classism, power imbalances, overcriminalization, and mass incarceration. Broadly, both groups argue the American political and legal experiment was destined to fail, and has failed, given its ideological roots. This Article puts both into conversation and makes two arguments. First, it explores whether criticism of the liberal paradigm offers another explanatory horizon for the ills of American criminal justice. Second, it suggests there is strong evidence that these trends were not the original design of the Founders, who, while operating within the liberal tradition, sought to entrench certain premodern ideas into American criminal justice.

Four developments in the modern American criminal legal system—relating to lawmaking, procedure, adjudication, and punishment—provide evidence of the critique of the excesses of modern liberalism. First, the system has become almost entirely positivist, leaving officials to exclusively determine the boundaries of criminal law and definitions of punishment. Overcriminalization and confusion about what punishment is has resulted. In the procedural realm, core doctrines are nominalist and utilitarian in how they attempt to protect privacy and liberty. Third, the liberal, social-contractarian ethic that permits equating voluntary agreement with justice, however artificial or divorced from the truth, persists in plea-bargaining norms and practices, separating the legitimacy of criminal adjudication from reality. Finally, modern liberal premises manifest in a sentencing system primarily concerned with controlling risk—through quantified instrumentalization.

While these trends align with the pathologies of modern liberalism identified by critics, Founding thinking directly contradicts these developments. The Founders were not legislative positivists, either generally or with respect to criminal law and punishment. Second, criminal procedure protections were tethered to the world of things, not sentiments about interests. Third, juries were tasked with adjudicating criminal matters, determining truth, and injecting their normative views into the legal system. Finally, the moral underpinnings of criminal law animated Founding thought on sentencing and punishment. Thus, while modern liberal premises and excesses help to explain some systemic developments lamented by criminal justice scholars, these trends contradict aspects of the original design, meaning they are paradigmatic rather than originally intended.

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© 2026 Brian M. Murray. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Seton Hall Law School. I am grateful to Seton Hall University for providing the sabbatical that enabled the time and space for the research and writing of this Article. I also am indebted to the work of countless others who have helped me to think through the ideas presented here, including my colleagues David Opderbeck and Ed Hartnett, as well as Rick Garnett, Stephanos Bibas, and others who have encouraged my scholarly endeavors. This Article builds from the work of exceptional scholars in the political theory, history, law, and criminal justice disciplines. I have learned much from them. Finally, I wish to thank my lovely wife, Katherine, and my audacious and energetic children, Elizabeth, Eleanor, George, John Henry, Lucy, and Anna, for their innate curiosity, capacity for distraction, and infectious wonder.