Convictions: Slate's blog on legal issues

The Conservative "Clubhouse"?

[Adam White]

Eric, I think you're reading too much into my post on George Will's latest column.  You make a few points; let me roughly group them and respond in turn, not necessarily in the order in which you presented them:

First, regarding the specifics of the Will column:  I'm not sure why you took me to be "worried about whether Will's legal philosophy should be called 'conservative jurisprudence,'" or to be "relieved" to ultimately answer in the affirmative.  I certainly wouldn't "worry" one way or the other as to Will. 

Second, as I intended to convey in my post, Will's column raised eyebrows not for his suggestion that "[t]here must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say" (i.e., the portion you quoted) but, rather, for his view of the Fourteenth Amendment:

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.

Will's call for courts to impose a greater-than-rational-basis review on state economic regulation is a fairly bold departure from the textualism/originalism jurisprudence now predominent among conservative legal and political scholars.  I noted that Will (to borrow your phrasing) "touched a nerve" by invoking a degree of judicial restrictions on regulatory power very much outside of the modern American conservative mainstream.  That's all.

Third, your larger point:  You confess puzzlement by my use of the term "conservative jurisprudence."  In fact, you suggest that the term is novel to the blogosphere -- and, hoping not to appear out of place among your fellow bloggers, you ask for insight on what you characterize as "a secret meeting where everyone is wearing costumes and speaking in code."  (Hats and keys and passwords?  Gee, whiz.) 

I think you're simply reading too much into my point.  By using the term "conservative jurisprudence," I meant only those methods of legal analysis most commonly employed by American "conservatives."  Subjective definition perched upon subjective definition, no doubt.  Nevertheless, I don't think it's a particularly novel term, and I certainly do not agree that the term "conservative jurisprudence" is the strange province of bloggers. 

Cass Sunstein, for example, quite nonchalantly used the term "conservative constitutional thought" in his recent paper on "Burkean minimalism."  (Sunstein identified at least two "approaches" under the broader umbrella of "conservative constitutional thought": "Originalists, including Justices Antonin Scalia and Clarence Thomas," and "conservative perfectionists," including "the most influential memebers of the Lochner Court".)

Ernest Young's 1994 contribution to the North Carolina Law Review  -- also focusing on Burke -- offers a fine account of "Modern Conservative Jurisprudence," which he sees as encompassing "Originalism" and "judicial restraint."  (He begins with Mark Tushnet's 1985 sharp quote, "Conservative constitutional theory might be interesting, but it isn't.")

And of course there other myriad other examples.  (Robin West's 1990 Michigan Law Review article, "Progressive and Conservative Constitutionalism" among them.)  At risk of being overly general, these authors used the terms "conservative jurisprudence," "conservative constitutional thought," and other variants in the same way that I did:  I referred only to the methods of legal analysis most commonly associated with "conservatives."

As for your specific questions as to whether Will will be thrown out of the "clubhouse," or how a method of legal analysis comes to be adopted by conservatives -- good questions, and ones for which I don't have any answers.  I can't say I've ever given them much thought.  How conservatives (or progressives, or Marxists, or Iowans) come to respective consensuses on preferred methods of legal analysis certainly is a question far beyond the capabilities of a blog post's analysis.

In short:  Let not your heart be troubled, Eric!  You've stumbled upon no secret societies; you've accidentally uncovered no secret handshakes, keys, or hats!  I meant to offer no more cryptic a point than that Will's analysis, while certainly not within the modern American conservative legal mainstream, was perfectly consistent with his prior writings and, therefore, unsurprising, and that it isn't utterly foreign to conservative thought.  I certainly did not intend to introduce into the debate any new or novel terms.

Will To Power

George Will touched a nerve among conservatives today.  In his new column, he called for judicial intervention to thwart local regulations limiting dancing at a restaurant, in the name of the Fourteenth Amendment.  This embrace of judicial activism certainly didn't please my friends Matt Franck, Ed Whelan, or Steve "Feddie" Dillard.

Steve and Ed seemed a bit surprised by Will's position; I must say, though, that I find it fairly consistent with Will's prior writings.  Will's view of the role of the courts is no different from his view of the role of government generally his primary concern is that government  should minimize interference with personal liberty (particularly on matters of speech).  At the same time, he he opposed judicial disruptions of well-established societal institutions.  (Thus, when the Supreme Court ruled in the VMI case, he famously decried "our robed masters.")  Can these two priorities come into conflict?  Of course.  I've not seen Will wrestle with that point.

Even though (or perhaps because) his own instincts are less-than-systematic, Will loves to pick fights with conservatives on questions of the role of the judiciary.  He is not a fan of "originalism"; he associates it with the Dred Scott decision and the Alien and Sedition Acts. He seems to go out of his way to accuse conservatives of celebrating a brand of "judicial restraint" that is inconsistent with judicial enforcement of the Takings Clause; he accuses conservatives of preaching "dogmatic majoritarianism." 

Quite obviously, I have a few qualms with Will's arguments.  That said, I won't go so far as to say that his generally-libertarian views aren't "conservative."  They certainly don't constitute the current maintstrean modern American conservative jurisprudence; that mantle belongs, as we all know, to a Scalia/Thomas-style Originalism.  Nevertheless, Will's modified libertarianism is a conservative jurisprudence, as are popular constitutionalism, "Lochnerianism" (to butcher a term), and perhaps others.