Judge Kethledge has built an outstanding record of curtailing administrative state power.
Editor’s Note: These essays are drawn from a panel on Ken Kersch’s Conservatives and the Constitution held at Pomona College on November 15, 2019 and sponsored by Claremont McKenna College’s Henry Salvatori Center’s Lofgren Program in American Constitutionalism.
First, let me express my appreciation for the three engaging essays by George Thomas, Sean Beienburg, and Phillip Munoz considering my recent book Conservatives and the Constitution. These three scholars superbly distill the book’s essence, while offering a range of provocative criticisms. Given space constraints, I will address just a few of these here.
The Evolution from Restraint to Activism
Interestingly, Sean Beienburg argues that it is misguided for me to have characterized the development of modern originalists as first advancing a Thayerite theory of judicial restraint emphasizing the duty of judges to defer (in most cases) to democratically elected legislatures, but later repudiating that deferential posture once they attained a critical mass on the federal bench. Beienburg questions whether this purportedly self-serving, self-interested, and unprincipled move from prodecuralist to substantive originalism actually took place and offers an alternative reading of the modern Right’s ostensible movement from a defense of judicial restraint to the embrace of judicial activism. He suggests, rather, that a genuine commitment to constitutional federalism, consistent with and faithful to the Founder’s vision for a “compound republic,” underwrote what I (and others) have described as a discontinuous, two-stage developmental arc of two different—indeed, contradictory—originalisms.
It is a plausible suggestion. I will think more about this, especially in working on the next part of this project, which will examine much more systematically and extensively conservative constitutional arguments about federalism in the postwar United States. Like Beienburg, I am an admirer of Lucas Powe’s The Warren Court and American Politics, and I appreciate Beienburg’s flagging its relevance to how we should think about the development of originalism in modern American law. Powe, however, did not simply argue that the Warren Court’s rulings systematically shifted governmental power upwards, from the states to the national government. He was arguing as much about sectionalism as “states’ rights.” Much of that book was about the ways the Warren Court worked to bring the South to heel through aggressive rulings on race and religion, integrating outliers into emergent national norms. I would note that in my earlier book Constructing Civil Liberties, I too adopted a sectional integration thesis, approaching it by considering the role of constitutional law—and specifically evolving understandings of constitutional rights—in helping to consolidate a modern national American state. I think the evidence for that characterization is strong. Beienburg has thus alighted on an important issue.
Although it is important to acknowledge, I think it would nevertheless be a mistake, in the interest of honoring the federalism argument, to drop the engagement with its judicial activism dimension. At the time, the arguments were welded together (consider, for instance, the 1958 statement issued by forty-six of the nation’s [then] forty-eight state supreme court chief justices—a critical but, these days, often overlooked statement that should be taught alongside the well-known Southern Manifesto—that sharply criticized the Supreme Court for “adopt[ing] the role of policy-maker without proper judicial restraint” in contravention of its constitutional responsibilities, imperiling “our system of federalism”). They are both important in related but distinguishable ways.
I approached the matter through the prism of the question of the legitimacy of the judge exercising his or her ostensibly counter-majoritarian powers to void legislation passed by democratically elected legislatures because that is how it was studied and debated in legal academia at that time and after, by liberals and conservatives alike. As such, this framing took on a life of its own and came to have a pervading influence on much of the era’s elite and popular constitutional discourse. Edwin Meese and William Rehnquist, amongst many others, took the critique of counter-majoritarian “activist” judges into the public sphere during political campaigns.
To be sure, as Beienburg notes, a large number of the cases involved federalism. But it is important to recall—especially as concerned conservatives looking forward rather than backwards—that states’ rights claims, articulated most stridently by White Citizens’ Councils and other segregationists, were closely tied to resistance to civil rights. Segregationists certainly denounced activist judges too. But the courts-versus-legislatures framing had the advantage of moving onto higher-ground democratic theory turf, where, since the late nineteenth and early twentieth centuries, first progressives and then liberals, had elaborated grand theories of why courts should (mostly) defer to legislatures. Going forward, it was a better strategy to appeal to democracy and popular rule—along the Thayer, Holmes, Bickel, Ely, and (ultimately) Berger and Bork axis—than to continue to champion “states’ rights.”
Religion and The Faux Liberalism of West Coast Straussianism
All of the contributors to this roundtable affirm that Conservatives and the Constitution is largely descriptive. Phillip Munoz is nevertheless critical of the relatively few places (mostly in the footnotes and the book’s brief conclusion) where, while not mounting a full argument (which would amount to an altogether different book), I register dissatisfaction with some of the arguments I canvas and pass harsh judgments on the people advancing them. Munoz labels these “smears” from “the Left” (i.e., me) and then criticizes the academic Left (again, presumably me), more in sorrow than in anger, for their seemingly boundless ignorance of conservatism and their lack of respect for conservatives—for failing, yet again, to accurately understand conservatives as they understand themselves.
This framing and characterization, I’m afraid, reinforces one of my major—though, again, relatively rare—normative points and judgments. As I suggest in a few places, one of the debilities and dangers of West Coast Straussianism arises out of its method, as practiced par excellence by Harry V. Jaffa. Building on one of the signal strengths (and fatal weaknesses) of Leo Strauss himself—who, after all, was a refugee from Nazi Germany and wrote in a time shaped by an existential civilizational struggle between fascist and totalitarian slavery and freedom—Strauss’s West Coast students decided that this kind of epic conflict, as exemplified in the statesmanship of Abraham Lincoln, would be the primary prism through which they would understand and approach American politics.
Much of the work of this school is underwritten by what I see as a lust for civilizational conflict—for fixing the moment of the critical philosophical or theological error, and then insisting, along the lines, most recently, of Jaffa-trained or affiliated scholars like Michael Anton or Charles Kesler, that conservatives do something—perhaps anything—to stave off this impending cataclysm and collapse. Jaffa himself was famously relentless in condemning those who would not pledge fealty to the natural rights framework he set out in Crisis of the House Divided (1959) as akin to earlier appeasers of slavery, if not its perpetrators. In calling upon conservatives to support Donald Trump for President, the Jaffa and Kesler student Michael Anton, in his essay “The Flight 93 Election,” likened liberals and progressives to terrorists who had hijacked the United States. Defending Anton, Kesler criticized “moralistic conservatives” for their scruples about these incendiary battle-cries, suggesting that such conservatives were fainthearted friends, lacking in the intestinal fortitude to do what it takes to win.
These frameworks concern me because of their influence on places like Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship or various education programs associated with The Claremont Institute, where students are schooled to be thrilled by moments of existential choice—moments when the moral categories are rigid and clear. It is hardly venturesome for me to suggest in various places in Conservatives and the Constitution that, in the U.S. context, this method seems to have dovetailed with the sensibility of the more zealous, millennial, and apocalyptic elements of American Christianity, many of whom, beginning in the late 1970s, began to coalesce to form the contemporary Christian Right.
This is one way of thinking about politics. But it is a dangerous one. I think that the coalescing of these frameworks, often in popularized form, has played an important role in forging the discourse that has underwritten and affirmed the ironclad support for Donald Trump in today’s Republican Party. Where this has led—in a stupendous irony and tragedy—is to the very sort of historicism, relativism, and nihilism that Strauss and Straussians have spent their careers ostensibly opposing.
I am convinced that contemporary Catholic Right figures like Robert P. George, Hadley Arkes, and the late Father James Schall, SJ, along with Jaffa (whom Father Schall described as “a prophet”), are implicated in this moral and intellectual tragedy, which cuts to the core of our free, democratic, and even “exceptional,” political order. All three are conservative Thomists who have cast the ostensible abandonment of the country’s natural law foundations as a civilizational cataclysm: the idiom of “civilizational crisis” occasioned by the U.S.’s ostensible adoption of “relativist principles to replace those of its founding” was a core part of Schall’s battle-cry diagnosis; George’s book The Clash of Orthodoxies (2001) sports a picture of the dome of St. Paul’s Cathedral in London enveloped in billowing smoke during the Nazi Blitz; Arkes’ James Wilson Center on Natural Rights and the American Founding sponsors new work reinforcing this framing, along with a rising cohort of law clerks and other conservative legal actors.
In erroneously placing me in the box of the academic Left, Munoz suggests that I am writing from a position of distance from the thought I describe and from the people I am criticizing. This is wrong. Conservatives and the Constitution was not written from “the Left,” or “the academic Left.” I have moved in conservative circles for decades. I studied extensively in graduate school with a prominent conservative scholar (Jeremy Rabkin) and was a student of two founders of The Federalist Society (Steve Calabresi and Gary Lawson). I was in the first class of fellows at Robert P. George’s James Madison Program in American Ideals and Institutions at Princeton and was closely affiliated with the program for a decade. I have participated in many Liberty Fund colloquia. I have written for conservative publications. The list goes on. I may get some things wrong in Conservatives and the Constitution, but it is not from a lack of exposure to and experience with these people and their ideas. To be sure, I feel distant from them right now. But it is not because I have joined “the Left,” academic or otherwise. I am an Independent—by registration, and inclination.
But let’s turn to substance. Munoz argues that my account of Jaffa’s constitutional and political thought makes a “serious” and “significant error” in describing that thought as advancing a unified and ultimate Good. Jaffa, Munoz says, was a liberal: Jaffa not only signed onto but influentially articulated the Straussian framework for understanding contemporary politics that holds that, in the modern world, the ends sought by politics—tragically, perhaps, but inevitably—were lowered from the high political ideals pursued by the ancients (a unified and ultimate Good) in favor of the lowered ends of the moderns (peace and good order, agnostic as to ultimate ends, which are left to individuals to determine and pursue).
I was and am well aware of this core distinction in Straussian thought. By describing Jaffa as I did, however, my emphasis was on the ways that, while ostensibly hewing to and even championing this distinction between the ancients and the moderns, Jaffa simultaneously moved to subvert it. (I would note that these same dynamics are at play in the ostensibly state-legitimizing—but ultimately state-subverting—social contract theory advanced by James Buchanan and Gordon Tullock in another area where it has been argued in these pages by an otherwise favorable reviewer that I had committed a “serious misreading.”)
Yes, Jaffa’s public face within the modern conservative movement was as a liberal: as Munoz notes—and as my book makes perfectly clear—Jaffa spoke the language of stentorian liberalism. The core of his political theory emphasized the equality of natural rights. It doesn’t get any more liberal than that. That said, Jaffa’s entire intricate and subtle project was to introduce ways in which the classical, Aristotelian teleological (and for others, religious/theological) ends can be smuggled back into the prevailing, ostensibly neutral liberal framework.
Jaffa and Jaffaites do this by importing robust understandings of telos, a summum bonum, back into the equation through their stipulations of strenuous moral tests for the content of legitimate “natural rights” and their belligerent denunciations of heretical and corrupting imposters. This importation of “comprehensive doctrines” into the ostensibly liberal framework through strenuous philosophical and theological separation between legitimate and illegitimate rights claims is precisely what was done, as recounted in my book, by the leading evangelical, fundamentalist, and Roman Catholic thinkers who came together in the late 1970s and early 1980s as the modern Christian Right.
To be sure, as George Thomas notes, there were and remain key figures on the postwar Right who openly challenged and sought to repudiate liberalism tout court. But even without active coordination, the West Coast Straussians and much of the Christian Right worked towards the same ends within the liberal framework as did Jaffa, whether through Thomist epistemologies or varieties of (Protestant) Christian nationalism that believed the Constitution and American law to be anchored in the commands of The Bible or in a bedrock Christian faith. My book’s short conclusion blames this strain of illiberal “liberalism” for the current Right’s widespread embrace of the egregiously illiberal Donald Trump. Far from constituting a “serious error,” my characterization of Jaffa in this regard seems to me not only correct, but essential.
Are There Any Martin Diamonds Left?
George Thomas’s essay, quite appropriately, has an undertone of wistfulness and lament for the eclipse of a conservatism characterized by the “sobriety and moderation” exemplified by Martin Diamond (a thinker, Thomas has reminded me, who also taught for many years at Claremont McKenna College). I discuss Diamond at some length in the book. But if we look back on this trajectory from the time of Donald Trump’s ascendency and subsequent capture of the Republican Party, it is clear that the cause of the Founders has been hitched to those strains of conservatism that have long been aching for a twilight struggle and a Holy War—for a final showdown between the forces of Truth and Falsehood, God and Man. This desire has been skillfully manipulated by the solipsistic demagogue Trump. This was not the world of Martin Diamond.
Beienburg wonders whether that element has really taken over the constitutionalist Right. Whatever the currents in the popular and traditionalist intellectual Right, Beienburg suggests, old-school free market, limited government, localist, and libertarian constitutional thinkers and theorists still predominate in the peak organizations of the conservative legal movement like The Federalist Society and in legal academia amongst originalist constitutional theorists.
We shall see, I suppose. As I note in Conservatives and the Constitution, there are signs that these two elements have begun to merge, both practically and substantively. Whatever the ostensible high regard in which they hold “The Founders’ Constitution,” lest they derail their careers, most legal academic originalists have decided that it is best to stick to highly technical debates about interpretive methodology and keep their mouths shut about Donald Trump. At the same time, the Straussians and the Christian Right, who were once quite removed from the work of training lawyers and tutoring legal professionals like judges and law clerks, have lately begun to make their influence felt in that arena.
I don’t know where all this is going. What I wanted to do in Conservatives and the Constitution was to at least map the terrain over which these armies will pass.