Legal conservatism should be about more than interpreting the law.
In his opening essay, Jesse Merriam calls for a more positive, more substantive, and more ambitious legal conservatism. An almost exclusive focus on originalism, he suggests, has made the conservative legal movement too narrow, technocratic, and reactive. Merriam argues it has become overly concerned with means, such as the correct rules of constitutional interpretation, instead of ends, like securing the common good. It is too preoccupied with correcting old wrongs, like reversing erroneous precedents, instead of achieving positive results, such as fostering the conditions of a virtuous and orderly society. The scions of legal conservatism, Merriam contends, should learn from the great legal-political movements of the past like the New Deal and the civil rights movement and seek, through legal and political activism, to build the kind of legal order necessary to restore the nation’s traditional political identity.
Merriam concludes his argument by warning that “The future of legal conservatism depends on whether the movement can break its own institutional habits and dare to articulate a new constitutional morality for the demographic and spiritual crises of our age—the crises of belonging, fertility, and meaning—and align jurisprudence with the task of civilizational renewal.” This is probably asking what no legal or political movement can accomplish. Any successful practical undertaking must bear in mind the difference between a laudable ambition, on the one hand, and unrealistic expectations, on the other. Nevertheless, I am sympathetic to the general thrust of Merriam’s pitch, but with certain important qualifications.
He is certainly correct that conservatism must be about more than just conserving the Constitution understood as a written document. Without a positive governing agenda, this project is a loser, both politically and in substance. American voters rightly expect politicians who seek public office to propose something constructive for the government to do—to preserve what is good about our society and improve it where possible. This is the lesson of the repeated failure of mere constitutionalists to capture the nomination of the Republican Party and then win the presidency.
Much of what makes America a good nation is not required by our written Constitution. It is possible, after all, to succeed in getting the Supreme Court to jettison the judicially invented “right” to abortion and still have a nation in which abortion is common because most states permit it. To take another example of current interest, the Constitution permits the federal government to pursue a policy of absolute open borders, on the one hand, or, on the other, to impose a complete ban on any immigration at all. The right kind of immigration policy will promote the common good, and the wrong kind will be ruinous—but the Constitution provides no specific guidance on this question.
Generally speaking, a society that seeks to be healthy, strong, and happy will encourage citizens to develop the traditional virtues, to work in dignified professions, to get married, to have and raise children, to worship God, and to help their communities. Yet we can follow the written Constitution without achieving any of these essential ends. Preservation of the Constitution, then, ought to be understood as a necessary but not sufficient condition of a successful conservative political and legal movement.
A Virtuous Profession
Accordingly, Merriam is also right that a useful legal conservatism needs to focus not only on litigation and adjudication but also on political and legal activism in the service of preserving (or restoring) the essentials of our civilization.
His argument calls to mind Alexis de Tocqueville’s no longer accurate account of the American legal profession in his classic, Democracy in America. Tocqueville found the lawyers of the 19th century to be one of the most naturally conservative elements in American society. The legal profession Tocqueville observed was deeply attached to traditional civilizational standards, and determined to preserve them from the progressive forces unleashed by modern democracy, with its indifference to tradition and form.
Nowadays, many lawyers seem to think of a legal career as a vocation for social transformation. This is a serious problem for America, and the conservative legal movement ought to dedicate thoughtful reflection and resources to correcting it. Fixing this problem, however, cannot be accomplished by litigation—it can only happen by reforming American legal education, which in turn requires that those who pay for such education take an interest in this important question.
I also agree with Merriam that legal conservatism, to the extent that it maintains a necessary focus on judicial appointments, should take an interest in the virtues required to be a good judge besides mere skill in legal interpretation.
Much of the work judges do—work that must be done well in a good society—does not even raise difficult questions of legal interpretation, much less of constitutional meaning. It rather requires judges to use their legitimate legal discretion prudently in the service of a just and orderly society. Obviously, we do not need or want judges who subscribe uncritically to the view that criminal defendants are really the victims of an unjust society. Good judges should be skeptical of all novel legal theories, especially ones presented by activist lawyers trying to change the character of our society. And good judges will be respectful of the rights of all citizens, including criminal defendants and the most unpopular litigants.
Limits of the Judicial Power
Despite my sympathy with Merriam’s critique, the conservative legal movement must maintain its commitment to originalism as the correct—and properly American—approach to constitutional interpretation.
In the first place, originalism is more than just a formal or procedural principle for interpreting the Constitution. It also involves living in continuity with our Founding—a worthy goal that appeals to the moral imagination of conservative voters, and American voters more broadly.
More specifically, originalism is essential to preserving a core aspect of our national identity: self-government under the rule of law. In America, the people govern, but under the limits imposed by the Constitution as our fundamental law. Our freedom as a self-governing people depends on the majority being subject to the Constitution, not to the discretion or will of someone in a political office. The rule of law is not the same thing as rule by judges—even by conservative judges seeking defensible outcomes. Originalism in constitutional interpretation is necessary to ensure that judges are interpreting and applying the law, not inventing it.
Moreover, this judicial discipline of being bound by the original meaning of the Constitution involves the exercise of a virtue that is necessary to safeguarding the moral quality of our civilization: honesty. As a condition of entering into the judicial office, all judges take an oath to uphold the law and the Constitution—and that is all they should be doing. As Alexander Hamilton indicated in The Federalist, the proper execution of the judicial duty requires that “nothing be consulted except the Constitution and the laws.”
For these reasons, the kind of conservative legal movement for which Merriam calls must remain mindful of the proper limits of the judicial power and not give in to the temptation to try to impose outcomes—however desirable they may be—that are not really required by the Constitution.
To take one obvious and important example, a robust legal conservatism will seek to preserve and strengthen the family based on marriage between a man and a woman. In pursuing that aim, it would be proper, among many other necessary steps, to try to get the Supreme Court to reverse its constitutionally groundless holding in Obergefell v. Hodges that the Constitution requires legal recognition of same-sex marriage. A conservative Court would abuse its power, however, if it were to hold that states have no right to recognize same-sex marriage if their voters choose to do so.
As this example indicates, there are limits to what judges can do to preserve or renew civilization in a self-governing society. If a community is so foolish and lacking in elementary respect for justice and its own interests as to eliminate cash bail or to elect prosecutors who give a free pass to certain kinds of crime, there is not much that judges can do about that.
Merriam suggests that civilizational renewal is possible “if there is a will” for it. He is right. And this renewal ought to be the work of a serious conservative legal and political movement.
