In response to: Is Legal Conservatism as Accomplished as It Thinks It Is?
When I was invited to respond to a Liberty Forum essay on the state of legal conservatism, without my knowing the author or having seen his essay, I was sorely tempted to decline. Yet more navel-gazing about conservative thought and originalism? Please. Anything for Richard Reinsch, though. And I have been richly rewarded by Jesse Merriam’s insightful commentary. Among its many virtues is its rediscovery of a mode of thought that is generally ignored or suppressed by soi-disant originalists: constitutional politics.
Start, as the author does, by parsing Law & Liberty’s questions: “Is legal conservatism, in its moment of triumph, as accomplished as it thinks it is? Is it time to celebrate or are there problems on the horizon?”
The “moment of triumph” has names and faces. There is President Trump, who on the campaign trail vowed to outsource judicial nominations to the Federalist Society and who has made good on that commitment. And there is Senate Majority Leader Mitch McConnell (R-Ky.), a man of great strategic acumen who treats judicial appointments as the “long game” that it is and who has enabled a narrow Republican majority to keep the other team’s judges (Merrick Garland) off the federal bench and to get our judges (Neil Gorsuch, Brett Kavanaugh, numerous appellate and district court judges) on.
To be sure: Democratic state attorneys general have made a habit of obtaining nationwide injunctions from judges who are in tank for the Trump Resistance; the Roberts Court is still temporizing; and the Supreme Court commentariat is treating us to endless harangues over the Court’s lack of “legitimacy.” All that said, increasing GOP dominance over the federal courts is a given. And unlike the Washington Post’s guardians of political decorum, I for one am not overly perturbed by the partisan nature of the brawl or, for that matter, by the fact that a conservative Supreme Court majority might long outlive the political coalitions that brought it to power. For good or ill, partisan judicial entrenchment is the usual form of constitutional politics in America. It’s a bit late to get all prissy about it.
Concerns about accomplishments and potential problems on the horizon begin with the question of what the program of “legal conservatism” actually is. What is distinctly conservative and distinctly constitutional about it? The conventional answer: originalism. Surely protecting (or rather, recovering) the original Constitution is a constitutional project, and it is conservative in a broad and good sense—no?
Jesse Merriam shows why that answer is problematic. With a caveat briefly noted below, the author follows the conventional approach of dating (modern) legal conservatism’s origins to the advent of the Reagan administration and to the contemporaneous founding of the Federalist Society and its rapid ascent under originalism’s banner. Less conventionally (but rightly, to my mind), he places the rise of the legal conservative movement in the context of the conservative politics of that time.
Oversimplifying the story a great deal, the Reagan Coalition fused three disparate intellectual traditions—economic libertarians, social conservatives, and foreign policy hawks—which corresponded roughly with, or at least overlapped with, three political constituencies: business, religious conservatives, and “Reagan Democrats.” The bare bones originalist proposition that judges should interpret the Constitution, not invent a new one, united everyone I just named. Libertarians might get an original Takings Clause with teeth and perhaps a Commerce Clause with claws. Traditionalists (the word Merriam uses to denote social conservatives) might pocket a reversal of Roe and of the Warren Court’s civil rights and criminal justice adventures. Hawks might win a “unitary executive.” Better yet, originalism promised to unite these disparate constituencies and their aspirations under a wide umbrella that could be described as politically neutral. There is nothing partisan or ideological about vindicating and venerating our founding charter, is there?
The irony—perplexity? paradox?—is that legal conservatism seems to have triumphed now, at a moment when the political conditions that initially spurred it have ceased to obtain. The Reagan Coalition is no more. President Trump, so very fond of the 1787 Constitution that he loves all 12 of its articles, seems to lack a constitutional program beyond judicial appointments. (I am putting this as mildly as possible.)
Originalism for its part seems to have emerged victorious, both organizationally—as illustrated by the Federalist Society’s stupendous growth and outsized influence—and intellectually. Notoriously, as Merriam observes, everyone is an originalist now. Justices Elena Kagan and Sonya Sotomayor sailed through their nomination hearings as avowed originalists, and even the Anti-Federalist Society—formally known as the American Constitution Society—propounds nominally originalist positions.
That triumph, as Merriam also notes, has come at a price. There is no longer anything particularly conservative about the project. Originalism has retained its neutral airs by retreating into increasingly arcane linguistic theories that permit ready adjustment to changed political conditions (for example, the spectacular triumph of the gay rights movement). One might say that originalism has become a Unitarian Church for the legal profession: Anybody is welcome, provided you believe there is one Constitution, at most. In Jesse Merriam’s provocative formulation: “The legal conservative movement’s alignment with originalism might not have neutralized judicial decisionmaking, but it has neutralized something: conservatism.”
What are we to make of all this? I propose to consult a towering authority on constitutional politics.
Not “the Boss” (for a change) but Yale Law School Professor Bruce Ackerman. In a justly famous series of books, he interpreted the New Deal as a “constitutional moment,” right up there with the Founding and the Civil War Amendments, in which political leaders, speaking authentically for “We the People,” legitimately (though extralegally) created a new Constitution. The obvious difference is that the New Deal Revolution was extratextual and was accomplished, after 1938, through judicial appointments. Suspend doubts over the curious idea of non-textual constitutional amendments—what matters for present purposes is Professor Ackerman’s examination of the “Reagan Revolution” against the benchmark of the New Deal.
In Ackerman’s telling, Reagan’s presidency had the potential, and certainly the aspiration, to become constitutionally transformative, just like Roosevelt’s. In both cases, Presidents mobilized a legitimating theory to challenge the then-dominant understanding of the Constitution. FDR promoted the Frankfurter-Landis-Hart vision of progress, expert government, and “Legal Process.” In the case of Reagan and constitutional originalism, it was propounded in the heady 1980s not just by renegade law students and dorky law profs but by Attorney General Edwin Meese and the Department of Justice’s Office of Legal Policy.
In both cases, I have observed (or was it Bruce?), the initial thrust was to effect constitutional change by taking the federal courts out of the game and letting political institutions, especially presidentially directed agencies, do their thing. (That’s how Chevron fits with Erie Railroad, and how originalism’s “unitary executive” theory fits with FDR’s well-warranted indignation at Humphrey’s Executor, which held that the President can’t fire the official in charge of a big chunk of his agenda.)
In both cases, the constitutional project was to be accomplished through judicial appointments. However, where Roosevelt succeeded, Reagan failed. Instead of the late Robert Bork (on Ackerman’s somewhat doubtful account a jurist with a mind to tear up the New Deal Constitution), we ended up with the vaguely conservative Justice Anthony Kennedy.
And so the constitutional moment passed, and our politics returned to normal. Or did it?
One can give an Ackermanian rendition of our present moment as a delayed triumph of the Reagan Revolution’s constitutional project. As Professor Ackerman himself explains in a new and riveting book on Revolutionary Constitutions around the world, it isn’t unusual for constitutional movements to coalesce and to develop institutional muscle only over time. Nor is it at all unusual to see the constitutional projects of charismatic politicians (Alcide de Gasperi, for example, or Charles de Gaulle) implemented at a later time by hacks and clowns and even by authoritarians who try and then fail to govern by emergency decree (Indira Gandhi). Nor, finally, is it at all unusual for constitutional courts to bide their time in asserting a constitutional understanding that transcends the old order.
That in fact has been the pattern in Italy, India, France, and other countries—including, come to think of it, ours. The Marshall Court never again exercised the judicial review power it had asserted in its passive-aggressive Marbury decision. And the Roosevelt Court spent its first 15 years demolishing pieces of the old order and cutting the President slack, most notoriously in Korematsu. The Court did not throw its weight around until Chief Justice Earl Warren’s and Justice William Brennan’s arrival in the 1950s, long after the New Deal moment had passed.
At that point—to note a further present-day parallel—the original New Deal ideology, which told the federal courts to get the heck out the way, had to be reformulated to legitimate a far more activist Supreme Court and its creation of a Constitution for “discrete and insular minorities.” Originalism in its dominant versions has traveled on a similar trajectory, from “judicial restraint” to “judicial engagement”; from deferring to administrative agencies to “Overrule Chevron!” orthodoxy. If you want to enshrine and cement a new constitutional understanding, that has to be your posture.
The “delayed triumph” story might not be and probably isn’t the story Bruce Ackerman would tell, or like to tell; and I am not fully convinced of it myself. But it has a certain plausibility, does it not?
If This Is Right, Then What?
In important respects, the just-so story sketched above maps onto Jesse Merriam’s view of the landscape. It prompts his question as to whether originalism, at this point, can still serve as a legitimating conservative theory of the Constitution.
To ask that question is not to suggest abandoning originalism, or to contend that it is somehow wrong. Operationally, any exercise in constitutional politics demands a legitimating, mobilizing, and unifying theory, and it is hard to see what other than originalism could have served or could now serve those functions. At a theoretical level, moreover, some form of originalism must be right, and the same is true of the complementary commitments to textualism and formalism. The question is whether originalism is (still) enough to serve as a legitimating theory.
Jesse Merriam says “no,” and I think that, too, is right. If I understand him correctly, the author proposes to supplement, reformulate, or perhaps transcend originalism in light of an earlier conservatism’s traditionalist, natural law-ish modes of thought that were cast aside by a harshly positivist originalism. Like Peter Lawler and Richard Reinsch, he wants a constitution in full. I have considerable sympathy with that project; I’ll add two supportive notes of caution.
For starters, academic originalism has, for a painfully obvious reason, jettisoned the traditionalism Jesse Merriam wants to reintroduce. That reason is powerfully explained by Douglas Laycock of the University of Virginia School of Law (a prominent, thoughtful, and effective defender of religious liberty, though no one’s idea of a conservative). According to Laycock, religious constituencies in America, like the Catholic Church in France long ago, are beginning to learn that it’s not a good idea to lose a revolution. The sexual revolution has triumphed, irreversibly; and in terms of constitutional culture and understanding, religious conservatives (not coextensive with, but an important part of, the “traditionalist” camp) will have to beg for mercy and morsels.
They can, perhaps, refuse to sell wedding cakes to gay couples so long as their heterodoxy is not based on religion (a.k.a. “animus”) but on “free speech.” They might get to keep old crosses on public lands so long as they don’t propose to erect any new ones. However, Obergefell won’t fall. And, if the Supreme Court is of a mind to overturn Roe v. Wade, it will have to do so on its own. Originalism’s academic mandarins will stroke their chins and mutter something about the manifold meanings of “meaning.”
The other note of caution arises from the Ackermanian juxtaposition of the New Deal and the Reagan Revolution or, more precisely, the constitutional dimension of those moments. Some leading New Deal lights served on the Supreme Court (Felix Frankfurter, William O. Douglas); many more, on lower courts. A far greater number joined or returned to law-school faculties. They got to own those institutions by inventing entire curricula (most important, Henry M. Hart and Herbert Wechsler’s capstone “Federal Courts” course, long since de rigueur for any law student who wants to go near a federal court), and by writing canonical textbooks and treatises not just on ConLaw but also on Administrative Law and numerous subfields.
We are nowhere near that dominance. Merriam notes the obvious fact that conservative law profs are still an exotic species. As for the curriculum: I still use, as I must, Hart and Wechsler’s Federal Courts textbook (while explaining, as best I can, that it’s a paean to FDR’s Constitution). Then, too, the leading (perhaps only) originalist Administrative Law treatise (Gary Lawson’s) is basically unteachable because it declares the whole enterprise unconstitutional and so, what are we doing here?
For all that, I join Jesse Merriam in counseling confident hope. The law-school dominance problem is too obvious to have escaped the Federalist Society’s attention and creative engagement; it just takes time. The question of whether originalism is quite enough has emerged as a live subject of debate, prominently including this splendid web site. And even the project of rethinking the orthodoxies of Federal Courts and Administrative Law has begun in earnest, by an increasing number of sophisticated scholars.
“Onward and Upward,” my law school’s official motto, is a loose translation of semper procedere. That’s traditional and Latin, and therefore it must be right.
 I mean no disrespect by the first-name subhead. At a Yale Law School panel discussion I attended many years ago, Professor Ackerman nodded benignly at an audience member’s question about the constitutional architecture and responded, “As Madison once said . . . ”—and, pausing with what seemed genuine puzzlement, continued: “ . . . or was it Bruce?” Bruce it is.
And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.
Some conservatives are unhappy with modern originalism; the best path for them is not to abandon it but to promote a more conservative version.
There are too few legal traditionalists to achieve what Merriam wants; this argues for a restorative project that’s conceptual rather than demographic.
Libertarian originalism tends to undermine conservative legal positions.