In Conservative Thought and American Constitutionalism Since the New Deal, Johnathan O’Neill has taken on an ambitious project—exploring and untangling how various strands of conservative thinkers have grappled with the changes wrought on our constitutional order since the New Deal.

While Conservative Thought is firmly situated within the genre of scholarship studying conservatism as a political movement and philosophy, O’Neill’s project is distinct in that it frames constitutional conservatism around the New Deal, and explores four institutional topics raised by the New Deal through the prism of four groups of conservative constitutionalists. These features make for an edifying tour of American constitutional thought, but for the reader well-versed in the subject, O’Neill’s analysis will often be disappointing, particularly because O’Neill overlooks how the conflicts between and among these four groups have made the institutional topics he investigates of little relevance to contemporary constitutionalism.

This is brought to the fore in the book’s conclusion, where O’Neill offers a two-fold remedy for our constitutional maladies: we need to empower Congress and strengthen civic participation. This simple prescription highlights a fundamental problem underlying O’Neill’s analysis: it fails to engage what is truly ailing our constitutional order.

Framing Constitutional Conservatism Around the New Deal

Whereas many books on conservatism begin their chronologies in the post-war era or with William F. Buckley’s creation of National Review, O’Neill’s narrative begins earlier, marking the New Deal as the turning point. O’Neill’s analysis is therefore framed around four institutional questions raised by FDR’s presidency: the legitimacy of the administrative state, federal-state relations, the nature of executive power, and the scope of judicial review. 

O’Neill’s decision to start with the New Deal carries profound implications for his analysis of what drives conservative constitutionalism. Indeed, his New Deal framing tilts the analysis toward institutional questions relating to economic affairs and away from the social and cultural issues that would come to animate constitutional conservatism a generation later, with the Warren Court and the accompanying Civil Rights Revolution.

The institutional questions of course matter deeply, and O’Neill demonstrates a strong command of constitutional thought in weaving various thinkers of different periods around these four institutional topics. But for better or worse (I happen to think for worse), these institutional matters are almost entirely irrelevant to contemporary politics.

To be sure, modern-day liberals and conservatives occasionally nibble at the edges of these matters, quibbling about details relating to the scope of particular institutional powers. But neither liberals nor conservatives show much interest in restoring the original institutional design. Indeed, while there is increased interest among conservatives in overruling Chevron and limiting the administrative state, there is little interest on both the left and right alike in restricting Congress’s Commerce Clause power to interstate transactions. Likewise, there is little interest in confining the president’s power to wage war without congressional authorization. Or in cutting back on our juristocracy by narrowing the scope of judicial review. Or in limiting the federal government’s authority to preempt state law under the Supremacy Clause to actual conflicts between federal and state requirements. Or in eliminating the judicially constructed Dormant Commerce Clause doctrine. And the list goes on. 

Because there is so much consensus between contemporary liberals and conservatives on the most fundamental institutional questions, the book’s focus on institutional matters often feels unmoored from the realities of modern-day politics. This is amplified by O’Neill’s analysis, which at times verges on the encyclopedic, devoting a few paragraphs to a thinker before marching on to what the next figure has to say on the subject.

O’Neill not only ignores the extent of this consensus, making it seem as though the constitutional disagreement between modern-day liberals and conservatives is much sharper than it actually is, but he also neglects the cause of the consensus. A major cause of this consensus is the intellectual incoherence and political inefficacy of constitutional conservatism, due in part to the conflicts among the different groups of constitutional conservatives. By taxonomizing these groups, without exploring the product of their conflicts, O’Neill missed an opportunity to expose a core problem in American conservatism. 

Four Types of Constitutional Conservatism

Many books on political conservatism divide it into two primary branches: libertarianism and traditionalism—the dichotomy that animated Frank Meyer’s “fusionism” in the development of the modern conservative movement. The few works exploring legal conservatism as a distinct branch of conservative thought have reduced constitutional conservatism to the Federalist Society as a movement support structure and the Republican Party’s judicial appointments.

O’Neill complicates our understanding of constitutional conservatism by dividing it into four categories of thought: traditionalism, neoconservatism, Straussianism, and libertarianism. While O’Neill should be commended for viewing constitutional conservatism as a variegated field that includes a diverse group of scholars, not just the lawyers and judges associated with originalism and the Federalist Society, his unorthodox taxonomy generates its own problems.

In particular, O’Neill’s decision to include neoconservatism as a distinct branch of constitutional conservatism leads to awkward and lopsided chapters. For example, in Chapter Three, entitled “Traditionalists, Neoconservatives, and the Erosion of Federalism,” O’Neill devotes roughly 16 pages to traditionalists and their reasons for defending state sovereignty, but he spends a mere three pages in that chapter on the neoconservative perspective on federalism. The relative paucity of material on neoconservatism is due to the fact that “[a]s a viewpoint born primarily of eastern urban intellectuals, neoconservatism simply did not register federalism as a pressing issue.”

O’Neill is certainly right that neoconservatives have not expressed much interest in federalism, and O’Neill may also be right that their disinterest is due to their personal identities (many of the early neoconservatives were ex-communists and liberals from New York City), but O’Neill does not seem to consider whether their disinterest in federalism suggests how little neoconservatism has to do with constitutional conservatism. Indeed, if a political movement does not register as a pressing issue the single most important matter in the 1787 Convention, it seems to follow that this movement should not be characterized as belonging to constitutional conservatism, which presumably has something to do with conserving the original constitutional order. 

Perhaps O’Neill has a different understanding of “constitutional conservatism,” but given that he does not offer anything approaching a definition, the reader is left wondering why these four groups belong together.

O’Neill’s chapter pairing is also strange. Particularly puzzling is that he pairs traditionalists and neoconservatives together on three of the four topics (Chapters 1, 3, and 8). For many students of conservatism, this pairing will be jarring, given that the neoconservatives and traditionalists have almost nothing in common with one another. Indeed, this is why they have fought with each other on the most fundamental matters in foreign and domestic policy, prompting the neoconservatives to charge the traditionalists with being “unpatriotic conservatives” and the traditionalists to accuse the neoconservatives of usurping the conservative movement.

While at first glance it may seem that O’Neill designed this traditionalist-neoconservative pairing to showcase divisions within constitutional conservatism, the reader is left wondering at the conclusion of the book whether this was in fact the reason, given that he ignores how these tensions have entered and shaped American constitutionalism. For example, at various points in the book, O’Neill discusses Mel Bradford’s writing on state sovereignty and constitutional interpretation as illustrative of how traditionalists think about American constitutionalism. But he doesn’t mention that one of the most significant political disputes between the traditionalists and neoconservatives arose over these writings—namely, how the neoconservatives conspired to prevent Bradford from being appointed chairman of the National Endowment for the Humanities. As recounted in a 1981 New York Times article, “Irving Kristol: Patron Saint of the New Right,” after President Reagan nominated Bradford, “Kristol picked up the phone … to talk to some acquaintances in Washington about the [Bradford] appointment,” and as a result of Kristol’s intervention, “[t]he job went instead to Kristol’s choice, William Bennett, of the neoconservative National Humanities Center.”

By failing to consider such conflicts and how they spilled over into political affairs, O’Neill ignores an important factor contributing to the failures of constitutional conservatism. Whereas constitutional progressivism has its divisions, it is nevertheless unified by a commitment to centralization, secularism, and government-managed diversity and equality mandates. This unity explains why there is so much harmony among the various factions of the political left and among the various support structures of the legal left. This is a critical component of why constitutional progressives have had so much success.

Not only is the conservative movement less unified, but its various factions have often fought with one another, at times so viciously that they have sought to push each other out of the movement. The result is the intellectual incoherence and political inefficacy underlying legal conservatism. 

Can Congress Deliver?

Just as O’Neill explores four different types of constitutional conservatives without considering how their differences have shaped and constrained the broader conservative movement, he wishes for a better Congress and more engaged citizenry without engaging the bigger questions lurking beneath the surface.

Indeed, at the end of the book, O’Neill offers the following solution to our constitutional problems: conservatives should focus more on how Congress can restore constitutionalism. In particular, conservative “intellectuals should give more sustained attention to Congress and how it might be improved,” which will “require the revitalization of authentic civic education and the engaged citizenship it promotes.”

But in calling for a better Congress and more engaged citizenry, O’Neill does not consider why Congress, which was designed to be the most powerful of the three branches, has become so submissive to judicial and executive power, and why American citizens have become so disengaged from their participatory role in self-governance.

There are many explanations for these two problems but a big part of the story has to do with polarization. More precisely, it has to do with what is driving polarization, which is not so much a function of ideology as it is of identity. Indeed, what we call “polarization” is merely short-hand for the process of partisanship becoming enmeshed with the growing regional, religious, and racial conflicts inherent in our increasingly large and diverse population.

When such conflicts within the population are the problem, empowering Congress and engaging the citizenry are unlikely to be the solutions. If there is any hope for restoring the natural right to self-governance at the core of American constitutionalism, it will be in strengthening communal ties through local authority, not in merely transferring the power from one national institution to another.

Had O’Neill framed his book around how these problems relate to conflicts among the four groups of constitutional conservatives identified in his book, it would have produced a much more enlightening analysis. As it stands, however, the book provides much information in rattling off miscellanea about various constitutional conservatives but little new insight on constitutional conservatism as a political and intellectual force.