Sunday, March 23, 2008

The Rise of the Conservative Legal Movement-- An Exercise in Living Constitutionalism


Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

That may sound strange given the familiar associations between conservatism and originalism, but in fact conservative legal though is a major contributor to the living constitutionalism of the present generation. Originalism and a call for a return to origins was one of the tropes that conservatives, like many other social and political movements before them, used to persuade people to reform constitutional law.

What conservatives were doing, in effect, was to try to persuade people-- and courts-- to keep the interpretation of the Constitution in sync with changing values-- in this case, conservative values. These values came into dominance as a result of Republican electoral successes, but also, as Teles details, through creating a conservative counter-establishment outside of electoral politics and in civil society. Obviously, many conservative arguments (made sincerely, I do not doubt) were for a return to the older, "correct" readings of the Constitution, but the actual effect of the practice was an exercise in living Constitutionalism.

You can read Teles' book as a partial critique of Sandy Levinson's and my theory of partisan entrenchment, which argues that constitutional change comes from successive appointments in the federal judiciary, reflecting the vector sum of political forces at the time of appointment. Teles point, which I think is correct, is that it's not enough to appoint new judges and Justices. You have to have a sufficient stock of potential judges and Justices who agree with the aims of your movement that you can appoint. Equally importantly, you have to do work on the "supply side" to provide a litigation support structure that can bring cases before the courts you staff. And you have to do considerable groundwork to contest and change the legal culture so that conservative ideas previously considered "off the wall" get a fair hearing and can be thought of as "on the wall." That's particularly important for a professional culture like that of the law, because professionals generally don't like to be thought of as irresponsible, eccentric or out of the mainstream. Thus, you needed to create a series of institutions that would help reshape professional culture and civil society, including the creation of conservative think tanks and conservative public interest law firms, the funding of law and economics programs in the legal academy, and the promotion of networking organizations like the Federalist Society. All of these programs had to be funded by patrons to see which ones worked and which ones didn't, and the patrons had to continue funding the successful programs over long periods of time. The liberal legal culture that conservatives objected to didn't arise overnight, and the conservative counter-establishment didn't either.


First, I really need to preface that I’m not being facetious when I say that it has been a pleasure taking Lino Graglia’s class—it has been a thought-provoking experience for someone who is the product of one of the more liberal of the east coast liberal arts schools. I read this post after spending a week listening to Graglia lecture on the Rehnquist court’s judicial activism of the right, particularly with respect to the takings clause, and I can’t help writing a reply.

To me, Graglia is somewhat enigmatic in his beliefs. He appears at turns an originalist, a legal realist, a moral relativist, a utilitarian, an advocate of Nozickian style property and individual rights, and an ardent believer in majoritarian democracy. But if I had to summarize what I understand to be Graglia’s position, I would say that a) he believes that very, very few things are unconstitutional because the federal government is limited to its enumerated powers; b) that because of this premise, he is deferential in the extreme to majoritarian democracy; and that c) that if people were free to legislate without interference from the courts, the country would collectively adopt more conservative policies.

Therefore, Graglia is right to tell his students that right wingers on the judiciary have made an attempt to legislate a conservative agenda from the bench (even if he says that they haven’t been as successful as all the left-wing judicial activists and that these conservative policies are “clearly right”). He also rightly acknowledges that although the Rehnquist court did not have much success in advancing even simple conservative platforms, the Roberts court appears to be making more significant strides (he cites the Louisville and Seattle school busing cases as well as exclusionary rule cases as evidence).

The hard truth for originalists is that the Louisville and Seattle busing legislation came about through the democratic process. Graglia realizes this because he explicitly acknowledges that this is judicial activism and that you can’t mask it under the guise of originalism. But as I understand Graglia, the hard truth for both liberals and conservatives is that the 14th amendment allows both sides of the ideological spectrum to tailor their jurisprudence to effectuate policy goals. As someone who leans towards the left, Graglia’s class has forced me to grapple with the fact that some of the decisions that I most admire from a policy standpoint rely on legal reasoning that might not be too far removed from the arguments made in Lochner and the economic due process cases from the turn of the century. I am curious to see what responses you might have.

Just a few last thoughts: Graglia believes that the country would adopt more conservative policy choices if it could legislate without the looming threat of having these choices ruled unconstitutional. I think that this is highly contestable. That Louisville and Seattle enacted school busing programs through via local legislatures evidences this. Also, I would not be surprised if economic populism became more widespread in Graglia’s hypothetical world where limited court interference is the norm. Marx thought that democracy paved the way for socialism and the fact that the contracts clause evinces the framers’ fear of farmers passing laws that relieved them of debt illustrates this point. Perhaps freedom of speech might be curtailed in the guise of “morality” legislation but this is just speculation.

Finally, I recently heard Tom Goldstein speak at a symposium where he echoed what I take it to be your argument: he lamented the lack of a liberal/progressive “farm team” of judges and institutional support (ACS doesn’t have the clout to take the Federalists quite yet). It’s tough without the professional support, even if everyone thinks that all of academia is in your corner.

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