Rockefeller Center at Dartmouth: “Conservatives and the Constitution” by Professor Kersch
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Rockefeller Center at Dartmouth: “Conservatives and the Constitution” by Professor Kersch


Welcome to the Rockefeller Center To Constitution Day and to the Brooks Family Lecture. I’m Herschel Nachlis a professor in the department of government and the Rockefeller Center It’s my great pleasure to welcome you to today’s conversation about conservatives and the Constitution with Professor Ken Kirsch of Boston College So a few words about the Center the Brooks Family Lecture and most importantly our speaker and our subject today So for those of you new to Dartmouth the Rockefeller Center for Public Policy and the Social Sciences or Rocky Fewer words fewer syllables is a home for Public Policy at Dartmouth from classes and speakers to leadership programs internships and grants It’s a home for rigorous non-partisan and practical engagement with essential issues of policy and governance Constitution Day of course commemorates the 1787 ratification of the US Constitution on this day, September 17th, 232 years ago Now the celebration of Constitution Day at most colleges and Universities though has only been sort of a phenomenon since 2005 when the federal government required it Now our public policy students will know what such a requirement sounds like Constitution Day is indeed an unfunded mandate So we’re quite fortunate then to have the generous support of the Brooks Family Lecture series to host Professor Kirsch here today The Brooks Family Lecture series was generously established by Dexter Brooks in 1990 He’s a member of the Dartmouth College class of 1947 in the Tuck class of 1949 And we’re fortunate today to have Dexter Brook’s daughter, Dr. Wendy Brooks Harris, with us for today’s discussion Now few subjects are as essential to contemporary politics and policy as conservative constitutionalism We see evidence of this everywhere from recent fights over the Supreme Court nominations of now Justices Gorsuch and Cavanaugh and associated theories of originalism To the president successfully adding over 150 judges to the federal bench using lists compiled by groups like the Federalist Society To live constitutional contests over the regulation of economic markets, administrative agencies and religious practices Just to name a few But what exactly is conservative constitutionalism Is it a single coherent entity or? Their constituent strands and tensions among them where exactly did conservative constitutionalism come from And what does its history tell us about its present and its future? Concurs is an ideal authority to help us answer these questions he’s professor of political science at Boston College a leading scholar of American political and constitutional development and American political thought he’s the author of four books the winner of three for three major awards from the Supreme Court Historical Society and the American Political Science Association He’s taught at BC Princeton and Bowdoin. He’s a graduate of Williams Northwestern and Cornell and most importantly for today He’s published a brand new book Conservatives in the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism, which I highly recommend to everyone It’s fantastic if you won’t take my word for it take Cass Sunstein’s praise who said quote this is an excellent and Illuminating new book but notes that it is a work of history. Not a work of advocacy So Ken will talk about this for about twenty minutes I’ll ask him a few questions for about 15 minutes and then we’ll open it up to all of you To engage in this discussion, so please join me in welcoming professor Cerf back to Dartmouth It’s wonderful to be back here I’d like to thank Dartmouth the Rockefeller Center and the Brooks family lecture series I’m very happy to be here In our politically divided country And our politically divided country one of the things that all of us left right and center and none of the above Can agree on is that one of the great political? Strengths of the modern American conservative movement has been its ability to unite behind clear pithily articulated principles and positions To sharply distinguish those from position the positions and worldview of their opponents and to take their distilled message Directly to the people from the founding mission of the conservative movements flagship journal National Review in 1955 to the Sheeran statement from of 1960 of the seminal conservative youth group young Americans for freedom to Arizona Republican senator in 1964 presidential candidate Barry Goldwater’s clarion manifesto the conscience of a conservative To Newt Gingrich’s Contract with America in 1994. The movement was drawn to declarations and pledges Announcing that upon this rock we shall stand and yield not an inch. So help us God and No rock did the modern conservative movement stand so tall and firmly upon than the rock of the Constitution of the United States this was not the Constitution in some vague sense as a set of abstract goals or a Flexible blueprint for government. It was rather the Constitution as fundamental law the country’s own perhaps divinely inspired Decalogue Setting legal meets and bounds beyond which american governments had been commanded by the sovereign we the people never to stray when it came to the powers of the national and state governments to legislate regulate and administer 20th century progressives and liberals didn’t like to speak about the limits imposed by an inflexible fundamental law They staked their claim on the ability to solve problems and get things done To realize people’s current wants and hopes and answer their purposes in the here-and-now Progressives demanded a sense of purpose from their government the conservative Jewish theologian will her Berg explained in the late 1960s but her bird countered the demand for a sense of purpose is a radical departure from our basic constitutional system The federal government is not and was never meant to be a moral agency to give the people An inspirational lead the government was not there to lead inspire innovate motivate it was it was not there to solve problems its work was by design and to good effect limited small-bore and routine When we talk about conservative understandings of the Constitution today The appearance of unity and clarity on the right is perhaps even more pronounced studies of contemporary public opinion have shown That if there’s one thing most people know about conservative understandings of the Constitution Is that conservatives stand on the rock of? originalism Or the view that judges should read the Constitution by the lights that the nation’s founders understood it some of the hottest topics in contemporary constitutional theory constitutional history and constitutional politics today are originalism The history of originalism the conservative legal movement and its mobilization around originalism formulating litigation strategies vetting federal judges including appointments to the US Supreme Court the Interesting thing about this from my perspective and something I emphasize in this book is that none of this work on? Originalism and not even originalism itself and the way we currently understand It dates back much further than the Reagan administration in 1980s It begins just a bit earlier with Harvard legal historian Raul burgers jeremiad against liberal judicial activism Unleashed by the Supreme Court’s Brown versus Board of Education decision in his bombshell 1977 book government by judiciary And it dates back also to 1982 With the founding of the legal world’s premier Association of originalist lawyers and legal scholars the current vetting group for all Republican legal appointments including to the White House the Justice Department and the federal judiciary the Federalist Society right Which was founded at Yale and the University of Chicago law schools. I Mean the stars of this mobilization behind the banner of originalism are well known to initiates Right, not a few have been public figures Ronald Reagan’s close advisor White House chief of staff and Attorney General, Edwin Meese his warded Supreme Court nominee, Robert Bork Who incidentally was the original faculty advisor to the Federalist Society at Yale Law School? right and Supreme Court justices Antonin Scalia who was the original faculty advisor for the Federalist Society at the University of Chicago Law School Clarence Thomas Neal Gorsuch and in some sometimes mongrelized form most of the reliably conservative appointees to the current Supreme Court One of the major arguments of my new book however, is that confining our understanding of conservative constitutional thought To the current musings and prehistory of these contemporary original lists Raoul Berger, Robert Bork Antonin Scalia Edwin Meese Clarence Thomas to confine our Understanding of this to them is a mistake Right. It’s a mistake both for those who support the movement And for those who seek to challenge it we would all be better off if we spent less time talking about post 1980s law school originalism Which is by and large a highly circumscribed debate amongst highly professionalized legal elites that seek a technical solution to the problem of judicial subjectivity and More time talking about the more broad ranging arguments and narratives about constitutional restoration and redemption within the post-world War two American conservative movement The key point and this is also a major point of my book is that those arguments and narratives were advanced? outside the law schools Not at Yale Law School, not at the University of Chicago Law School but in the public sphere and as such shape the main currents of American politics So my focus is one part on Constitutional theory in the public sphere and by public sphere I mean on radio talk radio. I mean on television in books documentary films mass circulation magazines and one part constitutional theory as practice professionally in academia but in academia Outside the law schools. They were conservatives were excluded from the law schools I mean they weren’t there were conservatives in law schools, but they were not teaching conservative Constitutional theory they were teaching property or trust in the states or something like that So we can look at academic theories, but it’s outside the law schools. This is movement based constitutional theory and My book, I believe shows that this constitutional theory was only more sophisticated But crucially it was more Transparently linked to the ideas philosophy and moral values of conservatism as a species of political thought And it said so openly right the very purpose of later law school based originalism is to deny its politics Right. It is the quest for a perfect theory that would produce a passive objective a political judge That’s what legal law school based constitutional theorists do and movement based constitutional. Theorists are not playing that game So it’s much more transparent The law school professors tend to erase obfuscate and deny the actual politics In a way that would be highly indiscreet for a law professor Whose self conception is that he or she is proposing a theory of law untainted by politics? Post-war American conservative movement theorists openly affirm that the Constitution was a repository of substantive conservative values and Debating in a law school idiom the respective claims of originalism at versus living Constitutionalism muddies the waters. It deep-six is the underlying substantive nature of contemporary Constitutional debate now, who are these people? Some of the names of the post-war conservative to here So I’m thinking of and discuss in my book are probably already familiar And well known to at least some of you perhaps even on par with Robert Bork and Antonin Scalia. So this would be people like Friedrich von Hayek, even I grant Talks about the Constitution. Although no one ever reads her says what she says about it Milton Friedman, but most of the people that I discuss in this book would be less familiar been more real Ringabel, no Martin diamond Harry V. Jaffa Mel Bradford wilmore Kendall David Lawrence Edmund Opeth’s right Francis Schaeffer John Whitehead Fulton sheen John Courtney Murray Right, all of these movement thinkers thought and wrote extensively and highly influential Ii-if not about originalism per se as we understand it today right Then about the country’s abandonment of its Constitution by modern progressives and liberals and the need of the right to rally for its restoration I underlined again, none of them were law professors right many were journalists. They were independent scholars And they wrote about constitutional abandonment and restoration in places like Reader’s Digest Right the American Bar Association Journal the American Bar Association used to be conservative before before the 60s, right? US News and World Report and conservative magazines like human events modern age the Freeman and National Review Some were political science professors with training in political philosophy Often under the German emigres philosopher Leo Strauss at the University of Chicago Many were evangelical Fundamentalist or right-wing Roman Catholic clerics, some of this is in theology Right. It’s by theologians If you want to read theories often quite sophisticated Constitutional theories of what the American Constitution meant to its founders once restored by conservatives can mean and I would argue Might very well mean again By self professed libertarians moral tradition asst Traditionalists and the shock troops of the religious, right? You will find it here not in the writing of conservative originalist today at America’s most prestigious law schools Right. Now there are many payoffs to shining a spotlight on this earlier movement based intellectual and political mobilization For constitutional restoration and and redemption for conservatives and for their opponents That’s I guess cast sons. It’s point, right? Thankfully, so there’s something for everyone almost everyone at least for the two sides if we’re going to be binary about it By getting to know this earlier movement-based constitutional theory Conservatives will gain new resources for deepening and broadening the range of legitimate conservative constitutional theory Knowledge of the breadth and range of this theory is an antidote at least for those who are open to taking it for the much noted epistemic closure on the right Which with its focused on fidelity and betrayal loyalty and heresy may in the short run and be good for politics but in the long run I at least believe is pretty dangerous for the country as for liberals and progressives getting to know this earlier movement based constitutional theory will provide an illuminating window on how movement conservatives actually think and see the world and its relationship to the founding and the Constitution that they will never get by following every last uh, pterence on the originalist Constitutional theory coming out of the law school this this will allow them to better fight their fight Since they’ll at least be challenging something that actually exists Rather than lurching blindly and recklessly at shadows and Chamara Right the illumination provided by looking at the movement based constitutional theory stems in large part From the fact that it is not only history it maps the conservative mind and thought of today’s political and constitutional right This thought has always been paramount to motivating and unifying the rights ostensibly diverse constituent parts In the earlier period it United the immigrant Austrian economists the fundamentalist and evangelical Christians classicists political philosophers Segregationists and white supremacist sagebrush libertarians disillusioned and wavering New Deal and Great Society liberals Ivy League social scientists Roman Catholic neo Thomas pillars of the bar Main Street babbit’s And business Titans Burkian and traditionalist and apostate X socialist and communist journalists All right Just as it informs and motivates and helps unite the diverse philosophies and on identity groups that have formed the conservative coalition today About this again law school originalism and reading about the founding of the Federalist Society in nineteen eighty-two Will tell you virtually nothing Let me close with a concrete example of One post-war movement constitutional theory debate that took place within the movement and outside the law schools okay, in this case in the in books and in the pages of National Review and modern age from the 1950s through the 1970s This example this concrete example will provide will both illustrate the diversity pluralism and even vigorous contention within the movement a resource for conservatives in the way I described and it will also underscore the contemporary Implications of these views in a way that would be very helpful to liberals and progressives Who hope to fight them? so my example is the fierce debate between the 1950s and the 1970s between the movements deliberate sense structuralists and its natural rights moralists over the nature of the country’s constitutional foundations to put names to these ideas It was a fierce debate between Wilmore Kendall Martin diamond and Dartmouth College’s own Jeffrey Hart right On one side and on the other side Harry the Jaffa Charles Kesler and other West Coast so-called West Coast drowsy ins And Christian right thinkers. Hey West Coast rouse scenes because this was based at Claremont McKenna College right in California, Southern, California the latter of whom not and these West Coast drowsy ins not Coincidentally. I hope you will see in my brief overview of this are the predecessors of and in a few cases the very same people who Are the most fervent champions of the leadership of Donald Trump? right Unlike constitutional theory as practiced by law professors the conservative theory I have just named spent little time and certainly didn’t focus on judges Right judges were incidental to it. It was not their main thing That’s another thing that’s different from law school based constitutional theory They were focused on how we should understand the broader American Constitutional system or as Strauss ian’s would put it the nature of the American political regime in one quarter were structuralists like Martin diamond of Northern Illinois University and the incendiary maverick Yale University and later University of Dallas political scientists Wilmore Kendall both Diamond and Kendall emphasized the Constitution as originally designed by its founders had been aimed at realizing diverse and at times Contending if not conflictual purposes Set out in the preamble of the Constitution So there’s a list of six different objectives of the Constitution in the preamble Kendall’s view was that at different times? One of those would be more important than another and they would shift in emphasis over over time To be sure Kendall said the founders were suspicious of direct democracy, but it was nevertheless The Constitution was a democratic document Speaking in the voice of the people in its foundational commitment to popular both in the country’s constitutional institutions the basic architecture of American government and Moving forward allowing for change and development in the means to be enlisted as times changed and new problems arose and in meeting pres the present needs of the American people Drawing from Alexander Hamilton’s Federalist 71 and 63 Kendal advanced the deliberate sense understanding of the American constitutional regime that authorized the making of new law only after proposed legislation has since X Successfully run a gauntlet of checked and divided powers as set out in the Constitution’s core articles write article one Setting out the bicameral Congress’s legislative powers. This is my Constitution Day lecture Has separated from the Brooks family lecture Article one setting out the bicameral Congress is by legislative powers article two setting out the president’s executive power and Article three setting out the judicial power of the federal courts Running this gauntlet was not easy Kendal and diamond emphasized It it provided Kendal explained that only those laws after deliberation and debate that had been distilled by the cool deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs and Hamilton emphasized Decidedly not and this is Hamilton’s language Proposed laws arising out of quote every sudden breeze of passion every transient impulse which the people may receive from the arts of men who flatter their prejudices to betray their interests as Dartmouth’s own Geoffrey Hart a Wilmore Kendall supporter in these debates explained in Advocating for Kendall’s constitutional theory and National Review in 1970 liberals had grossly distorted this order by over developing the presidents Article two powers and the judiciary’s article three powers at the expense of the powers of Congress as set out in article 1 Okay, but in mitts in mid-century United States Jeffrey Hart Wilmore Kendall and Martin diamonds constitutional theory was targeting not simply the views of liberals their major target was actually a rival tradition of conservative constitutional theory with many adherents in the contemporary contemporaneous conservative movement that what target was what they called the declaration tradition propounded by Claremont McKenna Straus Ian Harry V Jaffa Jaffa argued that the ultimate foundation of the Constitution was not Structural or procedural and by the way, they hated each other. This was like this is to the death right Almost The ultimate of found it found a Shinto Constitution was not structural procedural jaffa said it was moral It was first articulated in the stirring language at the outset of the Declaration of Independence We hold these truths to be self-evident that all men are created equal that they are endowed by their creator with certain unalienable Rights that among these are life liberty and property And that life liberty and the pursuit of happiness That to secure these rights governments are instituted amongst men in practicing and tolerating chattel slavery Jaffa argued the American founders betrayed this bed bedrock moral commitment of the of the Declaration of Independence By belatedly putting these principles at the center of the American constitutional regime. However, Abraham Lincoln right had redeemed that regime and Crucially going forward only those who likewise affirmed and attested to the natural law and natural rights Foundations of the Republic were held to have earned our approbation as genuine statesmen guardians and defenders of the American constitutional republic Harry jaffas 1959 master work crisis of the house divided set out these understandings by an extended moral philosophical reading of the lincoln-douglas debates Jaffer read those debates by lights of ancient Greek philosophy as one of the most profound texts in human history in pitting Against each other the respective claims of merely positive human fashioned law what the majority of the people will and natural divinely ordained law What was true right and good or what? The people should will in the lincoln-douglas debates Senator Stephen Douglas argued for positive law in pre pounding his theory of popular sovereignty For the whether there should be slavery in the new states and in the territories, right? His challenger Abraham Lincoln argued for natural law insisting that the people had no right to enact any law That violated the equality of natural rights by providing for the enslavement of other human beings To Jaffa the deliberate sense structuralist understanding of the regime that was propounded by Kendall diamond and Hart Sounded a lot like Stephen Douglas and popular sovereignty on slavery Right, whatever the vote comes out to that’s where we’re gonna go right and the to Jaffa this scented of might makes right and the antidote was to this wicked capitulation was leadership by a virtuous Lincoln like leaders and statesmen who ruled with the proper moral and philosophical Foundations at the forefront of their commitment men who put natural law over the merely human Okay The structuralist in answering this we’re deeply disturbed by the implications of jaffas declaration as tradition and To take another example to add to Kendall the movements leading, Nido Confederate thinker Mel Bradford of the University of Dallas in his own states rights idiom Condemned jaffas declaration astre dition for its messianism. This is why you should always listen to neo Confederates, by the way That regardless of all of his appalling views on race and everything I think he really had a very penetrating insight into what might be the problem With what? Jaffa was saying? And he says if you think of politics in the Constitution that way you’re going to be inclined to messianism about the president right that this is the president that is finally going to restore our Natural law foundations and we have to follow the Dear Leader In leading in leading to this so the crux of this criticism was not simply that it was a moral theory, but a moralist and but a moralistic vision and a Manichaean moralistic vision that place too much emphasis on Zeus like pronouncements a Fiery biblical pronouncements about right wrong good and evil and who will lead us out of this Sorry state of affairs Bradford said this is going to lead us to self-righteousness right moral leaders Will seek to vindicate the declaration as tradition at whatever cost Right with a sense of divinely ordained Mission, it was a recipe for lawless Caesar ISM for moral Crusades Right and for anointed great presidents who understand themselves and this is Bradford to be receiving regular Intimations of divine will through prophets who arise to call them to their holy mission Hey Although you would never know it from getting entangled in law school based originalism this West Coast Rowsey anism Is today alive and well in places like the Claremont Review of Books? It’s alive and well at the Heritage Foundation and it is part of the common Rhetoric if you recognize it in the daily patter of talk radio and Fox News right indeed These these people are the most vehement supporters of Donald Trump within the conservative movement and Not surprisingly They have spearheaded an extensive new corpus of conservative scholarship on chattel slavery and Abraham Lincoln This is one thing that always gets me wrong when I hear about people on the Left writing about conservative and say what about slavery? Right. What about you know? These people talk about nothing but slavery Right and they talk about about nothing about this except the Civil War and Abraham Lincoln but what they the way they read it, is that represented a standoff between Might makes right You know positive law and divinely inspired understandings of right and wrong as Vindicated by Abraham Lincoln now slavery has been eliminated right so What are the current fights about right and wrong under natural law? abortion rights and same-sex marriage and in this story right, it is liberals and progressives who are cast as Stephen Douglas and It is conservatives right who are cast in the role of a of the abolitionists and Abraham Lincoln right and as you might suspect I’ve so far been talking about Strauss ian’s the contemporary religious right has found this high road of constitutional theory, highly Congenial right? I’m running I’m a little over time. So let me just say very quickly without getting into the details The Declaration was also put at the center of Catholic right thought as well Which emphasized has its own natural law tradition and that was also done in a classic book very early on in 1960 called guess what by a Jesuit priest called we hold these truths right, so it fits in With that as well, let me make one final observation and claim about the relevance of this earlier thought to the contemporary conservative movement I began to lecture by positing a sharp dissonance or disconnect between movement-based constitutional theory and professional law school based Constitutional theory my final claim today, is that that wall that has long? Separated these two worlds that I opened the talk with is now beginning to crumble Okay, this is because elements of the movement constitutional theory I described Outs as taking place outside the law school is now being imported into the legal profession and the Federalist Society, okay Which obviously has direct political Consequences. So the Claremont Institute the center of West Coast Straus Ian’s and various Christian write centers Which used to just focus on undergraduate students and PhD students in political philosophy in the past five years or so They’ve started training law clerks For judges, they’ve started training judges and law students so the Federalist Society this is ultimately going to make its way into the Federalist Society and these people are now running boot camps for lawyers and for judges It’s always been something of a fiction If not concede that law school based originalism and movement based constitutional conservative ideology and thought were separate and separable given their professional role Law school based constitutional theorists will be heavily investing in maintaining the plausibility of that separation right but as the conservative movement Including the conservative legal movement has abandoned theories of judicial restraint Right have abandoned law school based theories of how judges should defer to Democratic majorities and after they have they have launched their own rights revolution Right, they now are looking for content to fill the content of those rights that the judges will fill in in aggressively Exercising judicial power and judicial review and that content is very likely to come from this earlier and more substantive element of Constitutional thought some day very soon I think and hope we we’ll stop talking about law school based originalism and and about Deep on and start talk as if it were simply law school originalism as if it were simply a matter of interpretation and start talking about deep understandings and profoundly consequential understandings of American politics when we talk about constitutional law and You know, this is just another case of if you really want to understand the future You need to understand obscure elements of the past that have been involved in this movement From the 1950s until the present, so I’ll stop there. Thank you We’ll give you a second to have a drink of water But I just want to thank you for for a phenomenal talk and a perfect perfect talk for Constitution Day I’ll just ask a Few questions and then we’ll turn it over to to hear what all of y’all have to say in response to against talk first of maybe two or three questions is about a particular example of the point you you closed on Because I think the point you closed on it is exactly right which is we’re seeing now this sort of successful Synthesis, and it strikes me that justice, Gorsuch is an underappreciated example of the very synthesis you described in closing and This goes back to his days as a as a graduate student At Oxford if not before and I’m just wondering if you could sort of tell everyone briefly that story because I think often justice Gorsuch at least was sold in many ways as Law school originalist da-da-da-da-da, and there’s a lot more to it that I think illustrates the very synthesis that you described Yes, so, I mean one thing I want to emphasize with this is obviously predicting The future is a dicey matter and there are a lot of things going on here So I don’t want to imply a one-on-one direct connection. I just want to say that the different elements of what it means to be a conservative jurist are starting to shift kaleidoscopic Lee and Certainly We are more likely to see something new And Gorsuch is a good example of that one thing that almost No one ever talks about as far as I can tell is that Neil Gorsuch is the first Supreme Court justice with a PhD? And he also has a law degree but here so he is a PhD in political philosophy That’s part of the point of this right not only does he have a PhD in political philosophy He studied on one of the leading Catholic right Thomas thinkers John finis at Oxford right. So he’s the first Supreme Court justice who is not just absorbing this incidentally or by thumbing through National Review Right or scrolling through however, we do it these days that he literally studied it, you know and wrote a thesis on it a Doctoral thesis on it. So that is a he is at least Deeply deeply immersed in us. I would note incidentally that so is Clarence Thomas in his own way That these people increasingly are invited to speak at Claremont and the Claremont Institute And Clarence Thomas’s wife, you know is obviously deeply involved in the religious, right? and Has a deep sort of theological grounding In this so right there. I mean that’s a direct influence on the justices You know, I’m not implying that just because his wife believes it that he believes it but in this case, you know, they’re on the same page and a lot of things so Some of this is that there is more of this Natural law thinking generally in the air But some of this is very direct and I think Neil Gorsuch isn’t is is a good example now Neil Gorsuch is kind of on the edge between this because he was also raised in the old Federalist Society and I’m not sure which way this is going to go but there is a strong new wind inside the halls of the Federalist Society and Especially now that they don’t talk incessantly about the need to defer to legislatures And hold back on judicial review. I think there’s a space for that wind to sort of rearrange the landscape I Don’t want to make this talk excessively about contemporary politics because that would be the exactly wrong thing to do But I’ll do that briefly here So the wind that you’ve just described this strong new wind that’s now blowing Inside the halls of federal Society meetings that many of our students will be attending when they go to law school It has often been said since the confirmation hearings for now justice Kavanagh that that entire episode will provide a counter-current to the wind you described by which I mean all the subjects that Were the the sort of focus of the debate around justice Cavanaugh’s confirmation? Because of the intensity of that and the Supreme Court’s strong desire to look political It will now sort of strategically retreat from the very domains that That wind might have been describing it. It won’t grant cert on cases related to Roe it’ll avoid sort of issues that might be seen as related to Some of these traditions again, this is just a theory that’s floated out there. Some people say evidence exists from it in the last term What you think? Okay, so I’m gonna be sure I so so the theory is that this was too scarring For the court to move in this direction Particularly related to sort of a gender or the just Liberty or whatever it might be Okay, the short answer is I don’t know but here are some thoughts. All right Certainly, the Chief Justice John Roberts is although he’s a very religious Catholic he’s a good example of and actually I think Brett Kavanaugh was to that There were always many religious Catholics in the Federalist Society However, given their older generation they were raised in the tradition of that’s irrelevant Right that essentially what matters is judicial restraint the judges should be restrained they should defer to the legislative branches because they’re elected by the people and I think Certainly Roberts and even Cavanaugh were raised in that old-school approach and I think you know just personally John Roberts has a very keen sense themself as on a balance point in the court struggling to maintain its Democratic, you know, it’s its legitimacy. I guess it’s the better way to put it. However I certainly don’t think that samuel alito for example has any You know inclinations in that direction Clarence Thomas obviously has no inclination in that direction Neil Gorsuch probably has no inclination in that direction One of the most interesting things about the Cavanaugh hearing to me. I mean aside from all the stuff you already know is that He also was a bit on a balance point because I think he was an old-school Federalist society type who when he got attacked Went identity group tribal You know went I loved my conservative Catholic Prep school and you know, he got very he got very much faith and family In a way that older school federalist society people would have never done You know, that is an identity based argument And it was advanced in a extremely belligerent strident form. And I think that’s what carried him through I’m not saying it wasn’t successful But I think he departed from the template. He was raised then So I don’t actually know where he’s going to come out, but I’m just saying to get confirmed he had to go in that direction To to say I’m with their Christian, right? I’m with their Catholic, right? I’m with belief in faith and family after all and I don’t you know at it being at a Catholic University I hear a lot about faith and family. And so I know what it sounds like and and Again prior to that hearing I don’t think he discussed constitutional issues in those terms And so I I don’t know if a me koni Barrett had been appointed. This would have been even more obvious and She she is someone who’s deeply steeped in Catholic natural law thought she’s a law professor at the University of Notre Dame Which is not incidental, although it might be for some people and She’s a conservative Catholic and she’s very deeply rooted in it and she might be the next appointment So I’m not sure where this is all going. I’m just saying that There’s more in the mix than there used to be Yeah. Yeah, I think if Justice Ginsburg Leaves the court in the Trump administration. That’s quite likely to be the next the next appointment one final question Then we’ll turn it over the audience. So we talked a lot about conservatives today Less so about liberals So here’s a question about liberals Which is why has liberal constitutionalism in my mind. Why has it failed? So So here are three pet theories of mine Maybe you disagree with the premise But here are three pet theories that I’d love to hear your thoughts about and then we’ll turn it over to the audience. So It just strikes me that Whatever ones politics there’s an intellectual heft to many parts of conservative constitutionalism and clear political success That is not mirrored on on the left So here are three potential reasons the ideas are bad The political actors behind it are lazy or the political actors affiliated with it are focused elsewhere So here’s the ideas or bad theory. Maybe there just isn’t anything really intellectually deep about living constitutionalism Maybe there’s just no there there Here’s the lazy theory maybe in the period of restoration that you talked about when there were no conservatives at Yale Law School Yale Law School was dominated by liberals. It was very contented in that dominance. There was no reason to try very hard and So perhaps you might you might say that the folks that are in the you know The liberal constitutional folks just just just got lazy and by the time they were out of power Once Reagan comes along that Apparatus didn’t exist And then the third theory is related to that which is just the Liberals were focused on on other stuff the sort of Democratic Party rainbow coalition and their their limited bandwidth elsewhere Okay, so like all of these questions it’s very complicated. So I’ll just venture a few observations on that So there has been a lot of work on the 1930s and after by historians about what was mid-century American liberalism generally and I’m thinking of a book by Anne kornhauser whose historian at the City College of New York and the Graduate Center and one thing she argues in the book that I completely agree with is that Ever since the 1930s. I mean the 1930s the so called constitutional revolution of 1937 that authorized the modern regulatory administrative state most of the resistance to that under Franklin Roosevelt was Liberals were focused on eliminating the barriers that conservatives had put up and constitutional doctrine and once they won They never actually developed a coherent affirmative theory to bring forward So, I don’t know if that’s laziness or just lack of necessity I mean Franklin Roosevelt was elected to four terms The Liberal Democrats controlled both houses of Congress and almost every state house probably every state house in the United States what kind of new constitutional theory do you have to forge to get your way under that and Roosevelt’s appointees are on the court until basically 1970 you know, so I don’t know whether it’s lazy. They didn’t have to do it. Okay Now there was an even further liberal court the Warren Court in the 1950s and 1960s That did lead to live liberals to come up with new theories of individual rights So I’m gonna just say something about two theories of two of the leading schools of liberal constitutional theory that were the most Intellectually serious and this time and both of these I think are Terrible, you know For it’s not that they’re stupid It’s that they have a really tinnier politically that comes with the arrogance of power You know That you know, it’s probably like a college campus, right? I mean how many how many things can people on the Left get away with saying? Well, it turns out quite a lot right because You know, they’re in control of everything, right? So here’s an example and this is stupid liberal constitutional theory and this is coming from Stanford, right? It’s not it’s not that it’s stupid intellectually the main theory of liberals the high-water mark of liberal constitutional theory was called non interpretivism and This is essentially a linguistic theory that language can mean anything You know where they’re getting this from they’re getting it from Jacques, Derrida Right. They’re getting it from French Literary theory so it’s not stupid But it’s an argument essentially that who’s to say anything in the Constitution Means anything if you’re a smart person and understand linguistics at its highest level That would be the most sophisticated theory in the world, but it’s probably not going to play in Peoria Right. It’s a purely academic theory that is really dangerous and That’s the that’s the whole that originalism drove through And say what about the text, you know? I mean there were people arguing that the president has to be 35 years of a well who’s to say with 35 years of ages because you know people have different lifespans at that time and what is meaning anyway, and you know It’s all about power and you know, I mean it was it was it was crazy okay, the other thing that it’s crazy the other line of it and This is my own personal view John Rawls is a theory of justice Which fed into constitutional law through Ronald Dworkin? This is essentially a theory that says I’m gonna put a blindfold on you We’re gonna think about the powers of government I’m gonna put a blindfold on you and you don’t know where you’re going to be in society whether you’re going to be rich or poor or anything and you’re just gonna be kind of a cipher and I’m gonna play this thought experiment if You didn’t know whether you’re going to be rich or poor. What are you going to do? Good? What are you going to authorize for government and prevent government from doing and then at the end of this? John rolls basically says this is amazing. It’s Exactly the platform of the george mcgovern presidential campaign in 1972 right perfect fit right in fact That’s the only reasonable understanding of what government should do and should not do in the abstract, right? that is also extremely solipsistic and unimaginative and it leads to things like people saying again, this is arrogance is saying When conservatives and liberals debate? They’re basically saying to conservatives there is no possible reasonable grounds for anything you believe about the powers of government So by the way, we don’t have to hire you. We don’t have to talk to you because you’re unreasonable, right? That works that works until it doesn’t work and then you’re screwed, right? And that’s where we are. That’s where we are today. So I I guess my answer is all of the above And on that note Turn it over to y’all. Yeah, so we’ll go here and then and then up there as always we’ll start off with students. Oh I’m sorry, sorry First I would like to say that I thoroughly enjoyed your talk I so thank you very much for coming here And thanks to the Brooks family for bringing thinkers like you to campus I have many questions because your talk was very thought-provoking as well as the Q&A session, but I’ll ask one two parted question You mentioned that there were not a lot of conservatives at law school for a good amount of time so I was wondering if you could explain further on the roles conservatives have in academia and second I Noticed that you spoke about law and politics sometimes separately And I’m curious if you viewed this boat, like if you view the two as mostly the same or very different Yeah, that’s nice Okay Conservatives at law schools. So I mean one thing I did emphasize Is that I’m sure there were conservative professors at law schools. But what they were not doing is teaching constitutional law According to conservative they were not being innovative scholars in constitutional law and they were not teaching Constitutional law. So for our purposes for purposes of this talk it was it was pretty irrelevant You know, I think the reason for that is probably not as obviously nefarious as I mean it might be the same thing that happens today in other areas of the Academy It’s not that the liberal law professors got together and said we’re not going to have any conservatives here. I think they had a real sense of what the important academic and intellectual debates were and Who was on the cutting edge of those debates and these people were all? Of what they were doing was viewed as antiquated and beside the point So one thing I want to note about it just to take an analogy in analogy Ludwig von Mises and Friedrich Hayek Okay, these are two conservative so-called Austrian economists right They were both they are both luminaries of conservative economics In fact Friedrich von Hayek in the early 70s won the Nobel Prize in Economics They could not get academic jobs in the United States Both of them were hired by American universities Mises was hired by NYU and Hayek was hired by the University of Chicago But he wasn’t neither was in the economics department. They were hired by private foundation So wasn’t the coke foundation? But it was the equivalent at the time Basically, a private conservative foundation paid their salaries and the University of Chicago said, yeah We’ll give them an office somewhere as long as you pay their salary because we’re not hiring these people Because what they’re doing is irrelevant to what contemporary economists are doing They’re fossils Right. We did that in the 20s Right, it turned out just like the thing I’m the talk what they were doing in the 20s turned out to be the 80s 90s right to the present day but their attitude was this is so Stodgy and out of fashion that why should we hire these people? I think that was true for that first of all there was no conservative constitutional theory and I don’t even think that these there was no-one even doing it I don’t even think the closest thing and actually I didn’t say this in my talk, but it’s in the book There were a few leading people who became identified with conservative Constitutional theory who were very prominent in the law schools one was named Philip Kurland at the University of Chicago Another was Alexander Bickel at Yale Law School right But as it happened They were these people Were New Deal liberals? who became disillusioned with liberalism in the 1960s the late 60s so they were already there as supporters of Franklin Roosevelt they happened to both be clerks of Felix Frankfurter and Felix Frankfurter emphasized judicial restraint and The reason these people became conservatives judicial restraint in the 30s used to be a progressive view and The the reason these people who came known as conservatives is that they stuck with the progressive review of view of judicial restraint Right through Brown versus Board of Education and the liberal rights revolution and people started saying even to Felix Frankfurter Your conservative and he would just get crazy. It’s like I was I trained Brandeis. I mean I was a student Brandeis I was a huge FDR advisor How dare you call me conservative, but when the court was deciding Brown, he’s like the court should stay out That’s what we believed under franklin roosevelt. And because he stuck to that he became known as conservative Okay on law and politics. I’ll just say very quickly One of the pleasures of going to graduate school in political science after law school is I got to abandon the fiction of this separation Between law and politics look, I mean I’m a political scientist. So I believe that constitutional law is political The one concession I’ll make to the legal Academy and I’ll say this is little bore as a historian. I’m a bit interdisciplinary is that There are long stretches where things look a political because there’s a consensus so for all practical purposes It’s looks legal rather than political that once that consensus disappears, then it’s obvious that it’s politics and You know, so there are certain issues that jump the realm I wouldn’t say purely legal I would say looks like law Right. There are things that used to look like law that are now looking political and that’s just a normal process Of history, right? I mean people focus on certain things and they ignore the politics of something I was talking to a student earlier and I use the example of I don’t know what the percentage you should be approached I won’t put you on it on the hot seat, but this is a policy school I don’t know what percentage of Americans live below the poverty line if anyone knows But I don’t want to give a number but I mean, let’s save 20% 15% is that about? I don’t know. I hate that how you hate to have this on YouTube Anyway, that’s just a guess a wild guess I’m a law person but I Mean, I don’t think for the most part as long as people aren’t talking about that as an issue that people are going to change It doesn’t look But if you think about it, of course, it’s extremely political. You know it the longest people accept something as the way the world is Then it looks like it’s a political and laws the same way it can look a political but ultimately Especially if you’re taking the long view It is it is about politics I’m gonna collect two to student questions. So if you both write they’re good All right, so you were talking about conservative adherence to the Constitution and How its see what do you call the sorry rather inarticulate? Would you call that on? most of the supporters behind the war on drugs and adventurism overseas and Nation-building have been on the right with the exception of like Thomas and Scalia and Gonzalez in like 2005 So would you say this is a departure from conservative originalism or does this go behind the moralistic tradition or neither or both? Okay, great question So within movement conservatism, do you see a sectarian divide between Catholics and Protestants in particular process evangelicals I only ask this specifically because despite like the perceived dominance of Protestants evangelicals within the Republican coalition all of the conservatives on the court right now are the Catholics are heavily steeping Catholic thought Yes Okay. So those are both excellent questions. Okay, so when you talk about skepticism about the war on drugs and about a Resistance to foreign policy adventurism and militarism and things like that. I mean what immediately comes to mind is that’s libertarians and a libertarian part of the Support of supporting the war on drugs and yes, okay. So that’s also true right. Um, I think libertarians within the movement are against that But obviously more or less are for those things so There is I mean part of what I do in the book is I try not to did that Deny, and this might apply to the other question as well. I have separate chapters on each of the the different elements of the coalition and I think that historically of course they have been divided So libertarians and moralists have been divided on these issues within the movement and Traditionally Catholics and evangelicals Were divided and by the way, I would add other dimensions. I mean the religious right? Used to say a lot of hostile things about free markets You know, I mean most of the people who were on the contemporary religious right were Franklin Roosevelt supporters, if you go back to the you know, white working-class and things like that from an earlier period So, I mean one thing I do try to chart is how those groups even given their differences whether theological or policy based or even principle how they came to see themselves as part of the same team and the central argument of the book is that They essentially talked their way To the idea that they had more in common with each other than their enemies right and their enemies are secular liberals and progressives and and secular liberals and progressives Were the enemies of the Constitution as this was framed right? So In a way, this is artificial You know in a way it’s artificial but coalition’s in politics are artificial. I mean, they’re based either on The only way that they’re held together. Are you? Know the typical answer in political science is they’re held together through political parties Which either uses the adhesive of? ideology or Or side payments if we win, you’ll get this I’ll get that right And there’s something always artificial about a political coalition and then the final the final thing, I would say that before just making a comment about the religion and the Supreme Court is That you know, if you study even going back to Walter Dean Burnham and the realignment theory of politics you Know all I have to argue is that this held together from a long period it doesn’t mean it will hold together forever Right. I mean it could hold together for 30 years and that in politics. That’s it You know so far it’s been holding together. That doesn’t mean that it’s going to hold together, but I don’t see it coming apart yet You know, I see rumblings As far as the justices of the Supreme Court and being Catholic, that’s a very interesting thing to me you know the traditional Thing that people say about this is and actually evangelicals have said this themselves So there’s a lot of talk between even their meetings. There are conferences between conservative evangelical and Between Roman Catholic political theorists and they get together and try to discuss this and the latest thing from evangelical conservative Political theorists and historians and theologians is the kind of condemn themselves and say the evangelical tradition Really doesn’t have the intellectual systemic richness that Catholic natural law theology has and part of that is to praise Catholic theology and Kind of urge them their theologians to try to do better You know, so they feel like they’re lacking in this regard I don’t know how that ends up with all the justices being Catholic right? But let’s say one thing it’s quite possible that everyone is recognized that the Catholic tradition is much richer and deeper and The evangelicals recognize that that’s an issue now the other issue however is Geographically and educationally where two Supreme Court justices come from And they’re coming from the Northeast They’re almost exclusively coming from Harvard and Yale and I just got to think that there are a lot more Catholics in the Northeast than there are in the south and You know the other parts of the country And I was trying to think about about you know, the Republican appointments I don’t know about evangelical, but certainly from he had tried to appoint Harriet Miers President Bush did and she had gone to SMU There was a Oh, no, no, no, you know, I mean we can’t have that And I think if it weren’t just Harvard and Yale And it weren’t just people from the elite of the Northeast which happens to be much more Catholic Right then then then maybe there would be more of Angelica ‘ls I don’t know You know that might change it may change, but certainly when it just got started That’s that’s definitely how it has played out as you observed in an interesting way. Yeah One final quick question I’m wondering how an originalist approach to the Constitution deals with the fact that one of the most important aspects of Our government our politics unlike is not even mentioned in the Constitution or contemplated in it Yes, okay So this is this is also something that’s that’s very interesting Yes, the American founders Not only didn’t anticipate political parties, but were actively opposed to political parties The short answer to your question is that in the period I discussed the 1950s and 1960s Many conservatives including people like Wilmore Kendall would say exactly what you said that parties the Conservative belief is that parties are an excrescence on the Constitution. The founders would have been appalled Of course the founders live long enough to be part of political parties. That’s a bit of a problem. Right? I mean Madison and and and the parties were started essentially by Jefferson and Madison leaving, you know, the Washington administration and you know, they they fell into political parties, but conservatives used to condemn political parties and partisanship Very openly on an originalist basis in the period. I’m in the period I’m talking about but actually I do think that There is a strain amongst the natural law people that at least implicitly critiques parties and partisanship and this is sort of a Republican emphasis on sacrifice and virtue and service that is a bit of an echo of the old Pre partisan American Founding right the idea that we are No, you know as Jefferson said it as inaugural, right? We are not Republicans or this words were Americans essentially that Essentially, there are people on the right who still talk about about virtue and sacrifice patriotism, right? The problem of course is that patriotism has been listed as enlisted as a partisan clause So I don’t think there’s any neat answer To your question except except saying we’re very far beyond that moment In American history, and we were probably beyond that moment even in the later of Washington administration I’m sorry to say but Older conservatives were consciously aware of it and did point it out in a way that you don’t hear on the right as much today Please join me in thanking professor Kirk You

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