Gary Lawson
I came of intellectual historic menstruum inwards the Southern California libertarian hotbed of the belatedly 1970s. My influences were (and to this solar daytime soundless are) people similar Rand; Rothbard; Rand; Mises, Hayek, too the other giants inwards Austrian economics; Rand; assorted Randians such equally Tibor Machan too David Kelley; Rand; Eggs, Sausage, too Rand; Rand, Eggs, Sausage, too Rand; Rand, Rand, Rand, Rand, Rand, wonderful RAND. I receive got e'er vaguely known that at that topographic point were such things equally “Straussians,” but until a few months ago, I had never read a unmarried word past times Leo Strauss. To this day, I receive got never read a unmarried article or majority past times Harry Jaffa (even though I went to Claremont). Until I read Ken Kersch’s book, Conservatives too the Constitution: Imagining Constitutional Restoration inwards the Heyday of American Liberalism, all I knew almost Richard Weaver was that he wrote some majority called Ideas Have Consequences, but I had no clue what ideas too what consequences he mightiness receive got been writing about; too I create non believe that I had ever heard or seen such names equally “Francis Schaeffer” or “John Courtney Murray.” And too then on too and then on too scooby dooby doo.
In this initial post, I desire to brand 2 large observations almost Ken’s book, with some to a greater extent than detailed comments to follow inwards subsequent posts, that stream from this spectacular confession of ignorance.
My get-go observation is that Ken has uncovered a globe that I am embarrassed to acknowledge that I receive got non encountered until now. I therefore owe a swell debt of cheers to former-student-now-Professor Ken Kersch. From an early on time, I chose to pass most of my adult life hanging around with conservatives because I had the intuition that, on the whole, with evidently huge tails on both ends of the distribution, they tended to live on to a greater extent than intellectually interesting than Leftists of diverse stripes. (And they were definitely more intellectually tolerant, equally evidenced past times the fact that they position upward with me for all this time.) If Ken has fifty-fifty touched the surface of the underlying foundations of the final 3 quarters of a century of conservative legal thought, that intuition starts to brand some sense. The reach of this majority is staggering. It is a remarkable feat to integrate such disparate material, across multiple disciplines from constitutional theory to economic science to political scientific discipline to religion, into a manageable universe of story lines piece compactly conveying the essentials of the underlying ideas. This majority is an amazing accomplishment, too I desire all of my subsequent comments to live on understood inwards that light.
The primal takeaway, of course, is that at that topographic point are inwards fact underlying ideas with essentials (and consequences) to live on compactly conveyed, too then that disagreements with conservatives too anyone else -- whether Randians, libertarians, liberals, or Marxists -- tin too must live on addressed through sophisticated intellectual arguments rather than invectives. The secondary takeaway, of course, is that a lot of Leftists (come on, yous all know that I’m right almost this) volition non consider this primal takeaway to live on the primal takeaway. Their primal takeaway volition live on that “the intelligence is really a whole lot worse than they may receive got imagined” (361). They volition regard a budding theocracy, with “The Handmaid’s Tale” simply a children’s story, lurking inwards the wings, driven past times insane religionists. There is, I tin feel them wailing, no reasoning with those beastly redemptivists, who for some misbegotten ground will not withdraw the Rawlsian methodology that takes the prejudices of Leftist Ivy-League faculty members equally the polestars of moral too political theory. They cannot live on debated or argued with – at to the lowest degree non on price of debate or declaration that are socially acceptable inwards polite circles (which agency price of debate or declaration that withdraw the prejudices of Leftist Ivy-League faculty members equally the polestars of moral too political theory). They simply must live on STOPPED – past times ANY MEANS NECESSARY. More on this inwards a moment.
My 2nd observation is that Ken has uncovered a globe that I am embarrassed to acknowledge that I receive got non encountered until now. Umm, 2nd verse, same equally the first? Not quite. This iteration of the observation has a different context too a different consequence.
As I said, I receive got spent the ameliorate role of xl years immersed, equally a welcomed outsider, inwards the conservative legal world. During that time, I receive got had extensive conversations, frequently spanning many hours at a time, with conservatives of numerous stripes too backgrounds. This has happened inwards all kinds of settings, ranging from academic fora to clerkships to domicile life (I receive got been housemates with conservatives on multiple occasions). These conversations receive got covered topics ranging from constitutional theory to world policy (including abortion, on which I am at to the lowest degree partially pro-choice) to faith (I profess none) to ethical theory (I’m a Randian) to epistemology too metaphysics (ditto). I emerged from those xl years of spectacularly rich too high-level discussions knowing nix at all almost Leo Strauss, Harry Jaffa, Francis Schaeffer, John Courtney Murray, Bishop Sheen, Richard Weaver, Russell Kirk, Eric Voegelin, or just almost whatever of the other luminaries who create amount upward Ken’s volume. Yes, I had heard a few of those names (like Strauss too Voegelin) come upward up inwards passing inwards a few conversations, but until a few months agone I could non receive got written a coherent paragraph almost whatever of them. Even when give-and-take with my conservative friends turned to get-go philosophy or life-and-death issues, those names simply did non come upward up (though C.S. Lewis too Frank Meyer came upward with some regularity, equally I recall).
To live on sure, I was hanging around with Federalist Society folks, who emphatically are non the subjects of Ken’s book. But sure enough those folks, particularly the generations of folks that I encountered inwards the 1980s too 1990s, when I had most of these conversations, would live on familiar with the wide thrusts, too quite mayhap the intricate details, of the intellectual threads that Ken chronicles. And those folks are the people who became, mightiness become, or had something to create with the coming too becoming of others as, judges. They did non speak, fifty-fifty inwards private, the linguistic communication that Ken describes. Accordingly, when Ken predicts that “[i]t may before long live on the illustration that nosotros volition non live on able to empathize fifty-fifty conservative judges too their approach to textual interpretation too judicial role too duty without an appreciation for the deeper restorationist or redemptivist visions inwards which they receive got long been embedded, too their elaborately constructed historical memories, principles, too philosophies” (363), I think he is false – or at to the lowest degree the prediction is non supported past times the available evidence.
Of course, at that topographic point may good live on lots of people, including some of my friends, who believe just the kinds of religious-redemptive things that Ken too then eloquently catalogues. There is, however, no indication that these particular religious-redemptive beliefs drive constitutional theory for those people who really grip the levers of power, fifty-fifty if those people hap to grip these particular religious-redemptive beliefs. I know a pretty skilful percent of the people who receive got driven the evolution of power-lever-holding conservative constitutional theory over the past times iv decades, and, equally far equally I tin tell, what drives them is . . ., well, constitutional theory. To live on sure, at that topographic point may live on millions of voters who would similar a particular laid of religious-redemptive beliefs to drive constitutional theory for those who really grip the levers of power, but at that topographic point may live on millions of voters who would similar all sorts of things to hap that are non really probable to happen. That is, afterward all, why the province is gear upward equally a republic. As an antitheistic Randian anarchist, I tin say with considerable confidence that a judicially imposed theocracy from the Right is non really probable to hap – no to a greater extent than than the globe is going to destination inwards twelve years if nosotros don’t halt eating hamburgers too driving SUVs. (I receive got no such confidence almost the unlikelihood of a judicially imposed theocracy from the Left, but that is some other story for some other day.)
But but but hasn’t modern conservative constitutional persuasion largely moved away from the prior Warren-Court era focus on judicial restraint, therefore raising the spectre (if ane is haunted past times it) of judges “draw[ing] on their newfound ability to actively constitutionalize ideological substance instead of passively performing institutional deference” (364)? Yes, indeed it has, but that evolution has non much to create with the wide intellectual currents described inwards Ken’s book. That evolution is a natural outgrowth of ordinary, garden-variety, mundanely secular, Federalist-Society constitutional theory.
The mantra of “judicial restraint” was an untheorized answer to political events of the 1960s too 1970s. The get-go responders who chanted that mantra were – non to live on uncharitable – an antitrust scholar too a concert violinist. They were immensely talented antitrust scholars too concert violinists (as good equally really wonderful human beings), but they were non inclined or situated to create deep function inwards interpretative theory. Originalism equally a constitutional theory did non start getting seriously theorized until the side past times side generation of scholars began function (years earlier most of them became academics, I should add) inwards the 1980s. And in ane trial those people started working, it became pretty obvious pretty fast that “judicial restraint” needed to live on a conclusion rather than a premise of constitutional theory. The Constitution does non incorporate a “judicial restraint” clause. It just doesn’t. Sometimes the Constitution volition telephone yell upward for judicial restraint too sometimes it won’t. That volition depend on what other governmental actors create or receive got already done; it is non something that tin live on propounded a priori.
Where does that elementary observation lead? One does non demand a religious-redemptive theory to conclude that most of the modern national regime is wildly, absurdly, it-is-not-even-a-close-call-obviously unconstitutional. One does non demand a religious-redemptive theory to figure out that a skilful chunk of the limits that modern constitutional constabulary places on province legislatures (e.g., province legislatures can’t arrive illegal to kill babies if the judges don’t think the babies are old plenty non to live on killed) are simply made up. One exclusively needs the Constitution for that.
Accordingly, my biggest noun complaints almost Ken’s majority are (1) that he has non really addressed the extent to which specific beliefs too specific actions are connected inwards the grand system of things too (2) that he has fallen prey to what I receive got inwards my ain withdraw heed named the “Whittington fallacy,” but which I in all likelihood demand to re-name the “political-science fallacy,” almost the evolution of modern originalist theory. In 2004, Keith Whittington hypothesized that the conservative movement away from judicial restraint happened because conservatives of a precipitous acquired power, which the old mantra of judicial restraint mightiness preclude them from using. See Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 603-04 (2004). That hypothesis was taken upward past times Jim Fleming, see James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings too Against Originalisms five (2015), too Ken buys it wholesale (100, 365). It is the sort of explanation that sounds swell to political scientists. It just happens to live on spectacularly wrong. The imperatives of ability heightened the need for constitutional theorizing, but the content, including the determination that judicial restraint was non something that could live on interpretatively derived from the Constitution, was a purely intellectual exercise. I know this. I played to a greater extent than than a minor role inwards that determination. The conservative ascension to ability correlated with serious theorizing almost constitutional theory, but correlation is non causation.
Once ane understands the pregnant – the communicative content -- of the Constitution, the large inquiry becomes what, if anything, ane is going to create with that pregnant equally a thing of concrete, real-world action. One tin choose, for example, to create nix with that pregnant too instead to prefer inwards one’s actions a normative construction such equally “judicial restraint.” One tin select to create nix with that pregnant too instead to prefer a normative construction such equally “whatever happens to live on the political platform of the far-left fly of the Democrat political party at whatever given moment.” One tin select to create nix with that pregnant too instead to prefer a normative construction such equally “whatever happens to live on the political platform of the Libertarian Party at whatever given moment.” Or ane could select to process the pregnant of the Constitution equally authoritative for official decision-making. There are whatever number of theoretical structures that mightiness Pb soul to the (not at all inevitable) latter path. Perhaps diverse religious-redemptive theories are with them. But in ane trial that path is taken, for whatever reason, the existent function is done past times the Constitution too the mundane theorizing necessary to ascertain its communicative content. The contemporary Left --- too the contemporary establishment Right – undoubtedly receive got much to fearfulness from that path, but that is simply because the Constitution’s objective communicative content past times too large does non back upward their favored programs. On that point, the overlapping consensus with the wing-nuts described inwards Ken’s majority is absolutely correct. Whether or non those conservatives were/are factually right almost metaphysics, epistemology, ethics, culture, fine art history, or the human relationship betwixt James Madison too Samuel Rutherford, they were/are basically factually right almost the United States of America Constitution.
Gary S. Lawson is Philip S. Beck Professor of Law at B.U. Law School. You tin range him past times email at glawson at bu.edu
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