Legal Conservatism: Jesse Merriam Responds to His Critics

Engaging six responses to my Liberty Forum essay, all by eminent law professors, in a concise manner will not be easy. But I’ll try to hit the major issues here.

Let’s begin with some global points for efficiency purposes: Tasked with evaluating the organizational success of the legal conservative movement, I discussed originalism only to the extent that it relates to that question. Nevertheless, although originalism is not central to my research, and I devoted only about a quarter of my essay to the topic, my respondents focused on this portion of my argument rather than on my thesis that the legal conservative movement has not been successful in addressing many of the problems that initially propelled it.

Disciplinary differences may be responsible for this. My essay concerned the political science scholarship on the relationship between conservative organizations and legal change, not the interpretive matters that tend to interest law professors. In the future, it may be best to continue this conversation by explicitly putting the distracting topic of originalism to the side.

To the extent that the respondents engaged my thesis, however, only one (John McGinnis) disagreed with it. I am of course delighted with this level of agreement, but I am also surprised by it, because my view sharply counters the standard narrative about legal conservatism. Indeed, over the last decade there have been several books on the subject, and while they differ in important ways, these works have one thing in common: All portray the legal conservative movement as a tremendous success.

To make the following discussion more profitable for future conversations and research, I will focus on the points of disagreement in each of the responses. That will mean devoting much more space to Professor McGinnis, who, as he said, is “in substantial disagreement with every claim” I made.

John McGinnis

I appreciate that Professor McGinnis devoted roughly half of his essay to engaging my analysis of fusionism and its significance for legal conservatism. I believe, however, that he erred in five fundamental ways.

One, he largely elides my observation that fusionism (at least in the way it was understood in the early days of National Review) will become decreasingly compelling as the globalism/nationalism axis becomes more politically salient than the individualism/collectivism axis. McGinnis therefore did not engage the extent to which issues like immigration and national sovereignty will increasingly frame political ideology, thereby creating a more significant rupture between the liberty camp and the tradition camp than was present under Frank Meyer’s original framework.

Two, he claims that “Election 2016 did not herald the death of fusionism.” His evidence? “President Trump has followed a classically liberal policy of deregulation and tax-reduction.”  But this conflates how Trump has governed as President (essentially as Bush III, but with a less impulsive war finger and a more impulsive Twitter finger) with how he won the primaries as a candidate (by running against the GOP platform, specifically on immigration, trade, and foreign policy).

Three, McGinnis alleges that it is “particularly problematic” for my argument that President Trump has delegated his judicial appointments to the Federalist Society and that the Left claims that these judges will bring American law back to the 1930s. But neither point challenges my observation that it is often the case that Republican candidates (including Trump) campaign on social issues (because that is where the electoral power is) and then appoint judges who subsequently advance the agenda of the cultural Left (because that is where legal elites are), while liberal scholars write books and Democratic politicians run campaigns warning of the next terrible thing the supposedly reactionary Supreme Court will do (events that never seem to materialize).

Four, McGinnis ignores many signs outside of Election 2016 suggesting that Meyer’s fusionism will require major tinkering, if not a complete overhaul. Consider, for example, the populist pivot at various conservative publications like the Claremont Review of Books and First Things, the National Conservatism conference recently held in Washington, D.C., the meteoric rise of Tucker Carlson’s television program, and the Middle America themes recently employed by U.S. Senator Josh Hawley (R-Mo.). Something is definitely happening on the Right, and however one feels about that shift, it is a mistake to conclude it is not happening simply because President Trump barely resembles Candidate Trump.

Finally, McGinnis neglects a central feature of my argument about fusionism as applied to the legal conservative movement: its asymmetry. As Steven Teles argued, a primary goal of the legal conservative movement has been to shift the frames of legal discourse so that “off the wall” legal arguments can be put “on the wall.” Teles focused on how this occurred with regard to the rise of law and economics, but in the decade since Teles wrote his book, the legal conservative movement has facilitated dramatic shifts in how legal and political elites think about other areas of law, such as Lochner and contractual liberty, the scope of rights guaranteed under the Privileges or Immunities Clause, and the constitutional status of the administrative state.

The legal conservative movement has demonstrated a remarkable power to shift the parameters of legal discourse; I never claimed it has not been successful in this sense. But it has done so almost exclusively with regard to causes that concern the economic liberty side of fusionism; I have therefore claimed it has not been successful with regard to the causes that initially propelled the movement.

The second half of McGinnis’s essay defends originalism and lambastes my failure to provide “specifics about what this [nonoriginalist] jurisprudence would resemble”—which, again, was not the task of my essay (or anything I plan on doing, because I’m not opposed to originalism as an interpretive methodology).

The only point in this part of his essay that concerns my argument is his claim that the Fourteenth Amendment’s incorporation of the Bill of Rights is “consistent with the ability of states to preserve conservative values . . . under the police powers.” This of course depends on how we interpret those underlying rights—a task a conservative might not want to entrust to an institution consisting of nine unelected, elite D.C. lawyers, and moreover, an institution with a long history of uprooting tradition. A more conservative approach than submitting to total incorporation (while hoping for constrained interpretations of those underlying rights) would be to resist incorporation altogether (as conservatives and originalists favored until relatively recently) so as to preserve local governance (which I take to be essential to American conservatism).

Put differently, if there is significant discretion in how we choose to do originalism, as I have argued, would not a conservative approach to incorporation involve selecting the most conservative resolution from the range of plausible originalist possibilities?

Under these criteria, I stand by my contention that legal conservatism has been far from triumphant, and I see little in McGinnis’s critique to challenge that thesis.

Michael Greve

Professor Greve’s characteristically spirited and provocative response proposes that my thesis would benefit from looking at the legal conservative movement through an Ackermanian lens.  This is an interesting idea, and one I have toyed with, but I keep coming back to the problem of timing, a point that Greve wisely anticipates. Although previous “constitutional moments” (for example, the New Deal, the Civil Rights Movement) were not instantaneous, they were, according to Professor Bruce Ackerman’s theory, entrenched within a generation.

Let’s look at the last two generations of legal conservatism by comparison. Going back to 1968, Republicans have nominated 14 of the last 18 Supreme Court justices, producing a Republican-appointed majority on the Court since 1970. The Reagan Revolution took place nearly 40 years ago. And unlike how Supreme Court case law swung promptly and decidedly leftward to entrench the New Deal and the Civil Rights Movement, the Court has been moving for decades in the opposite direction of the Reagan Revolution. Indeed, since the Reagan Revolution, federal power has expanded (Lopez and Morrison notwithstanding); judicial activism has strengthened (both parties now embrace it); and constitutional respect for the nation’s Christian heritage has waned (so much that it is now considered a victory for Christians that, in a narrow set of circumstances unlikely to be repeated, a Christian bakery owner may not be forced to bake particular types of cakes for ceremonies that did not exist until just a decade ago).

So when, exactly, is the conservative “constitutional moment” coming?

It is also worth noting that Ackerman’s “constitutional moments” are expressions of “We, the People.” If there was potential for a conservative “We, the People” moment, it was when President Nixon, taking Pat Buchanan’s counsel, modeled a new Republican Party around the “Silent Majority Strategy”—that is, around the very social and cultural issues that have had a diminishingly significant role in the legal conservative movement. If anything, the legal conservative movement—by marshaling its vast resources and political access for the expansion of economic liberties, not the defense of the cultural causes that increasingly animate the GOP base—has made it less likely that we will get the sort of legislative change and judicial entrenchment essential for a conservative “constitutional moment” to arrive.

Greve’s dictum that “It’s not a good idea to lose a revolution” acutely sums up the predicament of legal conservatism. The question is what to do after having lost the revolution. Should legal conservatives “beg for mercy and morsels” from the revolutionaries—a baker’s right not to bake a wedding cake here, a state’s authority to display an old religious symbol there? Or should legal conservatives start thinking outside the construct of the revolution altogether?

Mike Rappaport

Professor Rappaport’s response focuses almost exclusively on originalism in exhorting conservatives not to give up on the project. While I do believe that legal conservatism was more intellectually robust before it became merely a form of Wechslerian neutrality, my point here was not to encourage legal conservatives to stop being originalists. Rather, my point was that an effective movement may require more conceptual distance between conservatism and originalism, so that conservatives have more room to assess originalism’s trajectory with regard to the values and policies that animate American conservatism.

I agree with Rappaport’s claim that conservatives disenchanted with the increasingly libertarian and progressive orientation of the New Originalism could look to different forms of originalism, many of which would be more accommodating for conservatives.

But this of course affirms my three principal points about the relationship between legal conservatism and originalism: 1) originalism, to the extent it permits these choices, is insufficiently constraining to “neutralize” constitutional law; 2) given the different ways of doing originalism, each associated with a distinct set of adjudicative outcomes, a successful conservative movement would prioritize the form that preserves the most in terms of social arrangements; and 3) the New Originalism, by permitting evolving understandings of normative content to inform linguistic meaning, does not conserve the most in terms of social arrangements.

Marc DeGirolami

Professor DeGirolami’s response offers an important normative contribution to my claim that legal conservatism has been more attentive to the issues that concern libertarians than to those that concern traditionalists. I don’t entirely agree with his vision of a tradition-oriented jurisprudence (my understanding of a tradition-oriented jurisprudence more closely resembles Bruce Frohnen’s concrete, localized, and textured approach, as opposed to DeGirolami’s highly ethereal vision); but that normative theory is not within the scope of my work here, so I will not dwell on the point.

More relevant to my essay is DeGirolami’s claim that the legal conservative movement’s focus on originalism, as opposed to conservative or libertarian policy, is a result of constitutional theory’s being an elite enterprise for the “front row.” I have three quick points to make on this claim, each significant for my argument about the movement’s failures.

One, this depiction of the legal conservative movement, as being about originalism and not substantive policy, ignores much of the movement’s history. Consider the following legal thinkers, who, in framing the legal conservative movement, did not pay much attention to originalism.

The most influential work in constructing the legal conservative movement’s agenda was Michael Horowitz’s 1980 Scaife Report. This lengthy memorandum on how to counter legal liberalism was openly policy-oriented and did not discuss originalism at all. Similarly, Clint Bolick’s many works shaping the legal conservative movement focused on libertarian policy, as applied to issues like school vouchers, civil rights, and immigration, without concern for the strictures of original meaning.

Even the thinker most associated with “original intent” originalism, Robert Bork, often waded into political commentary—including on such controversial issues as the Civil Rights Act of 1964, immigration, and sexual relations—without much regard for original intent. And even the justice most associated with “public meaning” originalism, Justice Scalia, did not explicitly identify as an originalist, or give much public thought to the subject, until he delivered his landmark speech criticizing Bork’s “original intent” originalism, just two days before Scalia’s Supreme Court nomination was announced in 1986. Indeed, Scalia’s work throughout the 1970s and well into the 1980s (as a law professor, as a researcher at the American Enterprise Institute, and as the Federalist Society’s first faculty adviser) focused on the policy dimensions of constitutional law (including such subjects as affirmative action, church-state relations, and federalism) without even considering original meaning.

Two, DeGirolami attributes too much constraining power to originalism, and thus carves out too much space between theory and policy, in suggesting that legal conservatism has been “focus[ed] on originalism and constitutional theory rather than . . . conservative or even libertarian policymaking.” Given the choices inherent in doing originalism—over which legal issues are pursued, which constitutional provisions are explored, and which interpretations and constructions are offered—practitioners of originalism do substantive policy in the process of doing originalism.

Three, there is an important asymmetry concealed in DeGirolami’s notion that legal conservatives do originalism because constitutional theory is “the work of the American legal ‘front row.’” This claim obscures how constitutional theory is overwhelmingly the work of the liberal “front row.” And the liberal front row does focus its constitutional theorizing on the “back row.” Indeed, liberal constitutional theory, which of course constitutes almost all of academic constitutional theory, has sought to render “dignity” and “equality” central features of our constitutional system—specifically, to justify egalitarian policies like affirmative action quotas, reparations, and open citizenship for the benefit of disadvantaged groups and individuals.

It is not, then, a feature of the legal academy or constitutional theory to ignore “back row” America. But it may be a feature of the legal academy (conservative and liberal alike) to ignore a particular section of that row: the part that increasingly forms the core of the GOP electorate.

Michael O’Shea and Jeffrey Pojanowski

I was delighted to find in Professor O’Shea’s piece a knowledgeable discussion of the trajectory of originalist thought, and a reference to the regional and class issues that underlie this trajectory. If I have any criticism of O’Shea’s analysis, it is that he invests too much energy in Professor Calabresi. This is an understandable preoccupation, given Calabresi’s role in forming the Federalist Society, but it is important to emphasize that Calabresi is part of a broader cultural transformation that has rendered legal conservatism a mere adjunct to legal liberalism.

Likewise, I applaud Professor Pojanowski’s erudite and measured defense of “natural law” originalism. But I would push back against his traditionalist defense of originalism on “dispositional” grounds, for I take tradition to be more than Edmund Burke’s “argument from circumstance.” A fidelity to tradition represents a robust, inter-generational duty to a shared heritage and a humble deference to the natural order of social relations, not simply a disposition toward the status quo.

This may seem like a theoretical quibble, but it is of practical significance in light of, again, Michael Greve’s observation that “It’s not a good idea to lose a revolution.” Burke was of course advocating a dispositional conservatism in seeking to stop the ideas of the French Revolution from taking hold in Great Britain. Dispositional conservatism, and the legal methodology it engenders, may lose their conservatory power after the revolution is over and the revolutionary ideas have come to constitute the status quo.

If so, dispositional conservatives will be consigned to seeing the “permanence of things” in the process of begging for mercy and morsels.