Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Great Debate in the Conservative Legal Movement
There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.
Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.
The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.
By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.
From the perspective of the late 20th century, it was easy to see why conservatives of different stripes converged on originalism (and, to a lesser degree, textualism). Religious and social conservatives were trying to hold back the sexual revolution. They associated originalism with traditional values and majoritarian social mores, even if the mores were in fact changing before their eyes in ways they did not particularly like. Originalism in particular seemed helpful in fighting the culture wars. (Justice Scalia's dissents were key examples of the genre.) Old-right American nationalists were not especially happy with American foreign military adventures, but originalism appealed to their vision of a mythic past. They could use originalism (and occasionally textualism) to argue for stronger control of national borders, and paleoconservatives were often outspoken in the culture wars, especially on issues of race, religion, and ethnicity.
Libertarians, small government conservatives, and business conservatives liked originalism because they imagined (the operative word) that the original meaning was essentially libertarian in spirit and promoted limited government. The idea of a unitary executive, at least in its initial incarnation, allowed the president to get control of and subordinate the bureaucracy and pare away needless regulation. Meanwhile textualism, as Judge Posner has argued, tends to make government less agile and regulation less flexible and therefore indirectly conduces to limited government. Modern textualist theories are also sometimes justified by conservative versions of public choice theory, which argues that much government regulation should be cut back because it is rent-seeking.
National security hawks imagined (again the operative word) that originalism required a strong national state, deference to the military, and deference to a strong, unitary executive who had the power to use military force without unnecessary congressional interference.
Finally, both originalism and textualism were potentially "revolutionary" approaches, in the sense that they offered conservatives an independent and poweful source of authority with which they could contest and overthrow liberal legalism and liberal judicial decisions. They offered conservatives of all stripes powerful rhetorical tools to argue that much of the 20th century development of liberal legal ideas was unconstitutional and incorrect.
Each part of the conservative movement, in other words, saw something to gain from originalism and textualism. The logic of originalism and the logic of the different forms of conservatism (more or less) converged.
Several things happened in the past twenty years that have upset those assumptions and created tensions within the conservative legal movement. Today's intellectual ferment is the result of those changes.
First, as conservatives got control of the federal judiciary, originalism slowly transformed from a theory of judicial restraint to a theory of judicial engagement. As I've detailed elsewhere, this kind of transformation has happened over and over again in American history. In addition, conservative public interest firms had strategic incentives to make rights claims that required judicial engagement rather than judicial restraint. Money from conservative donors tended to flow to groups that were willing to use the courts to overturn decisions by liberal regulators, executive officials, and legislatures. Conservative legal and policy networks, which vetted potential judges, were influenced by these developments, and this, in turn, affected the kinds of people who got appointed to the federal bench.
The move from judicial restraint to judicial engagement had unexpected consequences for the conservative alliance. It benefited all parts of the alliance to some degree, but some parts more than others. In particular, the move to judicial engagement tended to benefit libertarians, small government conservatives, and business conservatives the most, because they wanted to push back against regulation and undermine bureaucratic capacities.
By contrast, the move to judicial engagement cross-cut the interests of national security conservatives, who sometimes wanted judges to strike down limitations on the executive, but also sometimes wanted judicial deference to executive decisionmaking. And the move to engagement often undermined the interests of social and religious conservatives. Social and religious conservatives could press for First Amendment speech and free exercise claims to protect their interests, but judicial engagement did not fit all that well with majoritarian arguments for preserving traditional sexual mores. Moreover, libertarian political philosophy and pro-business conservatism were in some tension with social conservative ideas about the preservation of traditional families and traditional communities. This is a modern version of an older quarrel with capitalism, which tends to disrupt and overturn social norms and traditions in the interest of pursuing wealth and profits, and also tends to desacralize (and even commodify) social relationships.
A second trend was perhaps equally worrisome for social and religious conservatives. Conservative legal and policy networks, influenced by financially powerful donors and interests, tended to promote the agendas of libertarians and business conservatives. It is true that some conservative donors wanted to promote social conservative and religious causes, but many others were libertarians or simply pro-business and anti-regulation. Social and religious conservatives understood this and wanted a larger share of influence as the conservative legal movement prospered and progressed. Senator Josh Hawley's recent speech criticizing the conservative legal movement for being too cozy with business is an example of this kind of criticism.
Third, Donald Trump's 2016 presidential campaign showed how much the Republican Party's base had changed. It was dominated by hostility to immigration as well as religious conservatism, and it was increasingly focused on white grievance politics. This created tensions with the party's donors and its business wing, who mostly wanted deregulation and lower taxes. The question for conservative legal intellectuals was what to make of these changes.
The conservative legal movement, to be sure, is not simply an arm of the Republican Party, and it contains many independent thinkers; but the movement as a whole usually does not stray too far from the party's central values and concerns. This is hardly surprising. Conservative legal intellectuals are part of larger networks of conservative elites in politics, law firms, and businesses, and they are also connected to the networks of philanthropists and donors who contribute to conservative causes and institutions. It would be surprising if a shift in the Republican party did *not* affect the direction of the conservative legal movement or debates among conservative legal intellectuals.
Accordingly, conservative legal intellectuals began to theorize, articulate, debate, and justify the values of the changing Republican base, if not those of Trump himself (who seems to have no principles other than self-interest). Religious conservatives argued that the business wing of the party was increasingly out of touch with the needs and interests of the large mass of the party faithful, who were working-class, religious, or both. They argued that the business wing was too secular and too complacent about the sexual revolution, or, even worse, actively supported gay and transgender rights. Social conservatives also worried that the business wing was too soft on immigration, which they argued, undermined American ways of life.
If conservative federal judges vetted by the Federalist Society and the Heritage Foundation too closely reflected the influence of the movement's business wing, they would focus on these concerns to the exclusion of what social and religious conservatives really cared about. Even worse, these judges might occasionally join forces with liberals in the culture wars.
Justice Gorsuch's opinion in Bostock-- which applied Title VII's antidiscrimination protections to gay and transgender plaintiffs--symbolized these growing fears. Gorsuch is a devoted originalist and textualist, but he thought that textualism required the result in Bostock, much to the horror of religious and social conservatives. They assumed that, since he had been properly vetted by conservative legal and policy networks, he was on *their* side. This was not how originalism and textualism were supposed to work! By contrast, Justice Alito, who wrote a lengthy dissent in Bostock, reflected the concerns and anxieties of religious and social conservatives, who feared that originalism (and in this case, textualism) would betray them. Alito offered a parade of horribles that, in his view, Gorsuch's blinkered textualism had let loose upon the world.
While all this was happening, a group of conservative intellectuals began promoting nationalism as the key value of American conservatives. A conference on National Conservatism met in July 2019 to try to find common ground. Conservative nationalists sought to theorize and make sense of the recent anti-immigration message of the Republican Party, as well as the growing dissatisfaction with (global) capitalism, cosmopolitanism, and their baleful effects on ordinary Americans.
Meanwhile, religious conservatives of various stripes had for some time been debating among themselves how to push the conservative legal movement in the proper direction. In March 2020, Harvard Law Professor Adrian Vermeule created a stir when he argued that originalism was no longer useful to conservatives and that they should focus instead on using government to promote the "common good." He argued for a right-wing version of Ronald Dworkin's moral reading of the Constitution. This would jettison the conservative legal movement's long-held allegiance to originalism and textualism. It would use the state to foster community and enforce moral values that would, in turn, promote a Catholic conception of the common good.
Vermeule is hardly a representative sample of the conservative movement, or even of religious conservatives. He has long been a critic of originalism, and his work defends the power of the administrative state. He has famously denounced "tyrannophobia"-- the exaggerated and needless fear that government will somehow overreach and destroy our liberties. (Try telling *that* to many conservatives these days.) He is also a Catholic integralist, who believes that the state should ultimately serve the values of the Church. These views are heterodox in the conservative legal movement. But elements of Vermuele's criticism have nevertheless struck a chord with religious conservatives. They felt that they had been manipulated or played by business conservatives, and they accused libertarian conservatives of hijacking the movement for their own ends. (It is worth noting that libertarian legal intellectuals are neither especially numerous or especially powerful in the United States, but to many religious conservatives they are a convenient symbol of what they don't like about the Republican party's business wing and its donor class).
Despite all the discussion of Vermeule's recent writings, conservative legal intellectuals are unlikely to adopt Vermeule's arguments wholesale, because almost none of them are Catholic integralists. Moreover, originalism has been the lingua franca of the movement for so long that it is highly unlikely that most conservative legal intellectuals will give it up.
Nevertheless, social and religious conservatives (whether Catholic, Jewish, or Protestant) may find the idea that the conservative legal movement should pursue the "common good" enticing. That is especially so if the "common good" is defined to correspond roughly to their own values and preferences. Rather than jettison originalism and textualism, it is much more likely that many conservative legal intellectuals will retrofit and adapt originalism and textualism so that they reach results that are more hospitable to the concerns of religious and social conservatives, and, depending on the issue, conservative nationalists as well. This of course, would not be the first time that originalism was transformed.
As these experiments continue, they will run headlong into the project of libertarian, small government, and business conservatives, who have been theorizing and justifying their own versions of originalism and textualism for many years. The clash of these two tendencies will define the conservative legal movement in the coming generation.
Moreover, conservative legal intellectuals are not isolated from the larger trends and movements in American society. My forthcoming book on the cycles of constitutional time argues that the current Reagan regime is about to end and that the Democrats will probably be the dominant party in the next generation. A powerful social movement is arising focusing on questions of racial justice. And the Republican Party will have to deal with the compromises it made to promote and defend Donald Trump's corrupt presidency. Conservatives will face a reckoning from multiple directions, and they will have to adapt, as they always have.
All of this means that conservative legal intellectuals will not just be fighting among themselves. They will also be trying to figure out what do so in the face of these other movements in American politics and thought.
If liberals gain control of the federal government and politics moves to the left, this may cause conservative legal intellectuals to close ranks and once again paper over their differences, as they did during the last part of the New Deal/Civil Rights regime and the first half of the Reagan regime. But it is also possible that conservative legal intellectuals will further splinter, and that the disagreements that have broken out in the past decade will continue for some time to come. The battle lines are being drawn, and the future is uncertain.