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.
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.Post a Comment
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.