The Conservative Encounter with Leviathan

with Johnathan O'Neill,
hosted by John G. Grove

Johnathan O’Neill joins host John Grove to discuss his recent book, Conservative Thought and American Constitutionalism Since the New Deal. 

John Grove:

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org and thank you for listening.

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty. In his recent book, Conservative Thought and American Constitutionalism Since the New Deal, Johnathan O’Neill chronicles the conservative movement’s response to and development following the New Deal’s Constitutional Revolution.

Conservatives found themselves in a unique situation, one in which the old constitutional order had not been utterly destroyed, but one in which, to use the author’s words, a new dispensation was laid over its predecessor without fully undoing the reality or the memory of what was defeated. The New Deal and subsequent constitutional developments gave birth to a more self-conscious conservatism, but it did so in circumstances of uncertainty. How should one respond to this new situation? What should we make peace with and what should we fight? What touchstones do we appeal to in resisting this encroaching Leviathan?

Tradition, philosophy, written law, the so-called principles of the regime, be they democracy, natural rights, natural law, or some other fundamental principle? Self-described conservatives did not have a unified answer and various approaches sometimes led to interesting and consequential differences. Joining me to discuss the dynamics of 20th-century conservative constitutional visions is Professor of History at Georgia Southern University, Johnathan O’Neill. Jonathan, thanks for coming on.

Johnathan O’Neill:

Oh, wonderful to be here. I very much appreciate the invitation. I’ve been looking forward to this talk for a while now.

John Grove:

Great. This book is structured around four basic groupings of conservatives, traditionalists, neoconservatives, Straussians, and libertarians. You walk through very systematically how these groups addressed questions like the expansion of the administrative state, the decline of federalism, their vision of the presidency, judicial review. Let’s start, why these four groupings? What are the distinctives of these four groups? And what did each see as the essential threat that this New Deal political order posed? All we’re concerned with it, but maybe sometimes for slightly differing reasons?

Johnathan O’Neill:

I start the book out, as you know, by defining in a thumbnail way the major commitments of each of the schools that you named, and from there try to look at how the post-New Deal developments, how they assess them and responded to them. While it’s hard to quickly summarize each of them, I attempted to do it in the beginning of the book. I think that traditionalists’ primary focus is on the local custom, oftentimes with a religious basis, but not exclusively so, and tending towards a conception of American political order as inherited from the long tradition of Western civilization, more particularly the English and the common law Christian humanist tradition.

Libertarians focus on individual liberty and suspicion of the state as inherently coercive and dangerous, an orientation towards private ordering through the market and spontaneous order. Straussians, a little harder to pin down in part because they argue so much amongst themselves, but an orientation towards the great debates of Western civilization, in particular, biblical morality versus ancient philosophy and trying to understand America as in some sense and its constitutionalism as a place where this vitiating tension can still exist and be argued about and improve people at the individual level of virtue, but also improve our politics in America, while a modern regime still has an openness to this kind of input, and therefore they find American constitutionalism worth defending.

Neoconservatives, again, an always definitional problem, in part because they gather so much from preexisting forms of conservatism and oftentimes resolutely refuse to define themselves. But I think for my purposes, the characteristic element of neoconservatism that I’m interested in is its assessment of post-1960s progressive liberalism as just asking too much of the state. A great word that they always used in the period was overloading, that the state is overloaded, and the polity is asking you to do things that just can’t be accomplished by a government.

Another element of, which we’ll talk about more I’m sure, of the neoconservatives is the idea of a new class, of a managerial conception of politics in which elites in various kinds of institutions, media, government, cause lawyering are pursuing… They have an inherent interest in the growth of the state because it gives them something to do and something to direct. I think that that plays very much in their assessment of modern post-New Deal conservatism.

John Grove:

You distinguished pretty clearly between Straussian and neoconservatives. A lot of times those two are lumped together. Why has that conception developed, and why do you think that’s wrong?

Johnathan O’Neill:

I talk about this a fair amount in the chapter on the presidency, and of course, I mean, the behemoth in the room here is the debate about the post 9/11 foreign policy and the George W. Bush administration invasion of Iraq. I think very quickly the media conflated Straussian and neoconservatives in part because there were some people with somewhat attenuated Straussian connections or influences in the Bush administration. But it quickly became this conspirational notion that Straussians were directing American foreign policy by hijacking neoconservatism, which no one was really good at defining anyway.

It just became this post-modern media firestorm without a lot of basis and fact. I spent a couple, well, at least a section of one chapter sorting this out and trying to show that there are many neoconservatives who are not Straussians. There are Straussians who condemned the Bush administration foreign policy. There are Straussians who explicitly rejected the invasion of Iraq. There are Straussians who use one of Strauss’ masses or concepts of the regime or politeia as this fundamental ordering of society, its norms, its mores, not simply its laws, its institutions that is pervasive and hard to change.

If you understand that, you would understand why just writing a new Iraqi constitution isn’t necessarily going to remake the place. There were Straussians making that argument against the gist of Bush administration policy. I think it took me a lot of pain and suffering to sort through all of that and make sense of it for myself, but I became increasingly convinced that this conflation of Straussians and neoconservatives is just mistaken and was a media bubble that a lot of people made a lot of for a short time. You don’t really hear much about it anymore.

John Grove:

How did some of these groups differ in terms of the way they thought about constitutionalism and political order? I draw out one distinction, it’s partly just it’s a pet interest of mine, but the traditionalist, you talk a good amount about the traditionalists’ nomocratic vision of constitutionalism, very much process oriented about the establishment of particular rules, very much went along with a heavy emphasis on federalism and the division of authority versus some conservatives that had more of an emphasis on fundamental principles, more ends oriented vision of constitutionalism. How did their overarching vision differ before we get into some of the specifics?

Johnathan O’Neill:

I learned a lot in writing about this about some of the deeper more principle basis for traditionalist or customary conservatism, which oftentimes is just dismissed as it’s ours and therefore it’s good or unquestioning, thoughtless loyalty to one’s own. The distinction which comes initially from Michael Oakeshott between a nomocratic regime and a teleocratic regime. Telos, end, right? A teleocratic regime is a regime with a kind of uber value that it tries to instantiate and permeate because it’s loyal to it, but as a pervasive political program, whereas a nomocratic regime, as you suggested, is more about process, about deliberation on a small scale.

It doesn’t have an ambition to remake things in the name of a teleocratic concept. It’s much more modest in its understanding of what politics is capable of and what institutions are for. On some level it’s because it is rooted in people’s customary shared moral understandings. Therefore, because we are rooted as a civilization in this way, we don’t need to ask institutions to remake our civilization. We just need to use them to abide together and make common decisions together.

I think that a lot of traditionalists would say that, and this is one of the fundamental cleavages in American conservatism, would say that the release of the equality idea, the egalitarianism that comes a lot of these people would say from the Declaration of Independence and from Abraham Lincoln’s ratcheting up of the idea of equality has derailed their understanding of the way the regime really should be. As I’m sure you have some familiarity with, this is a major conflict between people like some Straussians and some traditionalists. You see it come up in the book.

One of the things that certainly became clear to me over time thinking about traditionalists and studying people like George Carey or Russell Kirk is a sense of loss. The regime as they knew it, they just see as, in some basic sense, irretrievable. You see more conservatives of that dispensation, someone like Rod Dreher, The Benedict Option. There’s a withdrawal, that we’re aliens in a regime that is now operating on different principles. And to the extent that we can preserve what we believe in, we have to withdraw from it a little bit. I think that’s certainly something that became clear to me as I studied this more.

John Grove:

Getting into some of the specifics, you spent a lot of time talking about federalism. Obviously that’s one of the biggest conservative themes of this time. You put it this way. “The reality that post-New Deal conservatives faced was that federalism had precipitously and irreversibly declined even though constitutionalists since the founders in Tocqueville had taught that the US regime needed it to survive.” Federalism has been undermined. It’s been eroded to the point almost like you were just saying, almost to where it’s just irretrievable. It’s not something that can ever be revived, at least in the sense that a lot of conservatives thought it ought to be.

And yet it was seen as something that you can’t just say, “Oh, well, let’s just make peace with this.” It’s absolutely essential. A difficult situation. In defending it then, conservatives have to make this positive case for it beyond just this is the constitution’s inheritance that it’s given us. What’s the reason for federalism? You get into themes of community, which brings up one of my favorite conservative thinkers, Robert Nisbet, of Democratic self-government, arguments about that, the kind of polycentric political order, public choice.

In some of these cases, also maybe just some more lukewarm defenses, especially some of the Straussians and neo-conservatives, they weren’t as animated about federalism. They defended it, but like I said, maybe a little bit in a more lukewarm way, maybe as a practicality, not to be taken as too axiomatic. Talk to us a little bit about the variety of the defenses of federalism that you see coming out of these different groups.

Johnathan O’Neill:

I’ll start with the one that probably seems the least obvious, which is neoconservatives in the ’60s and ’70s who were questioning the Great Society and the principles of the Great Society and the way that it was run and administered. They’re frequently urban Eastern intellectuals. They’re not Southern States’ rights guys. They don’t really argue in the idiom of states’ rights or traditionalist custom localism. And still, what you see them saying is this one size fits all policies administered from the center don’t take account for differences in local moraes, inheritances. They don’t take account for local level cultural differences.

This approach will inevitably founder on the particularities that exist at the local level, which, of course, is a very old argument in defense of federalism that you hear from all kinds of different conservatives for much of American history. One of the things I found fascinating is that even though the neoconservatives don’t really understand themselves as arguing oftentimes in explicitly constitutional principles, they come round to this way of thinking because the reality of it is just right there in their face. I saw that Straussians, or at least different groups of them, changed tacks on several issues as time went on.

Federalism, certainly one of the core arguments for much of the Straussians was that America was always designed to centralize power more than oftentimes writers in The Federalist Paper wanted to overtly reveal. It was a somewhat veiled, careful project, but they thought all along that the orientation of the nation will be to become a continental and world power, and that you need to overcome the weaknesses of the Articles of Confederation in order to do this. And then when people see that the federal government is fundamentally more competent than the states and administers affairs better, their loyalties will gravitate towards this.

It may take a little time, but this is what will happen. And on some level, endorsing this basic idea. And then by the time you get to the ’80s, you start to see more Straussians saying, well, this kind of centralized leviathan behemoth amidst a commercial and materialistic society is just destroying the capacity of local communities to recreate Republican virtue, public mindedness, at the local level, which is the only place it can be created.

If the larger part of the constitutional government is going to endure, we have to have some provision for localities to tend to inducing virtue in the next generation, and concomitantly then we have to restrict the federal government putting its hands into everything, which is not really an argument that you saw them making against segregationist in the ’50s and ’60s. But as time goes on, they come to see that this kind of argument is necessary to preserve the regime in the way that they want to.

John Grove:

It seems a little bit more circumstantial in the sense that similar kind of arguments were made at the founding era by Anti-Federalists and Jeffersonians and so forth. Straussians were in this position, it was like, well, no, the Jeffersonians were wrong, and Hamilton and Marshall and Company were generally right at that time, but that things have just gone a little too far now.

Johnathan O’Neill:

Famously, Herbert Storing is the one who goes back to the Anti-Federalists and the first one to really retrieve the Anti-Federalists arguments and start publishing major Anti-Federalists writers who are making this argument. It’s through his efforts that we start talking much more about the Anti-Federalists starting in the ’80s. I think that that’s true that the… I would say it’s another thing that impressed me writing this book is the universe of constitutional concepts and the grammar of their use moves around and is used and deployed by people sometimes in one circumstance making one kind of argument that they run away from.

People in that camp run away from decades later. As I tried to point out a little bit in the conclusion, one of the ways you preserve a constitutional system is by having this argument about what its fundamentals are, what its limitations are, what it asks of us as citizens, what we need to adapt to technologically, but what we should never cleave off as a fundamental. I think that that discourse of constitutional debate contestation is itself a fundamental way that conservatives are contributing to the project of constitutional government.

John Grove:

Yeah, that’s interesting. Federalism goes along with, of course, the rise of the administrative state at the federal level. If you’re concerned about this expansive new administrative state, one answer is reviving federalism, just the federal government as a whole doing less. Other potential answers that become important themes here. You already mentioned a little bit the idea of thinking about the type of person that’s in the administrative state and is there a way to reform our elites in some way.

Why don’t we talk about that a little bit? You mentioned that was a big neoconservative theme and a little bit I wouldn’t say making peace, but more so than say the traditionalists and the libertarians, a little bit of sense of making peace with certain elements of the modern system.

Johnathan O’Neill:

That’s a fascinating question because this is one of the things that really surprised me when I was writing this book is leading Straussians, Herbert Storing and then I believe John Rohr, who was a student of Storing, they basically say, “Look, we’re not going to be able to undo the New Deal,” which a lot of other people say too, but they say modern regulatory bureaucracy is here to stay. In the complex society of even the middle of the 20th century, let alone today, the social interactions and the economic interactions are so complex that no legislature will be able to write a law that can contemplate every possible situation, and therefore you will need to seed some discretion to regulators.

And that no system of law understood as rules will ever be able to do without discretion as it is applied. So then the question becomes, what kind of people do we want to have exercising this discretion? How do we inform their discretion? How do we bound their discretion? The argument that Storing and Rohr and then others after them give is you want to educate bureaucrats in American regime principles. You want the exercise of their discretion to be informed in the most basic sense by the constitutional tradition, by understandings of the rule of law, by understandings of the importance of private property, the limitations cast on office holders by the remit of their office, by consent.

They can’t be automatons. Fundamentally, applying the law is a political act, but you have to educate their discretion by having them read some of the great opinions of John Marshall, having them read some of The Federalist Papers, so that they understand what the basics of the regime are and what their place in the regime is, and therefore the limits cast upon them because of the kind of regime it is. I found this fascinating because I just didn’t know that this argument from this group of people was out there.

It’s a fundamental admission that this understanding of law in administrative state is inescapable, that you won’t go back to the minimal 19th-century state. If you’re a fundamentally realistic person about politics, you have to accept this and then you have to decide what to do about it.

John Grove:

Another thing that a lot of conservatives wanted to do about it was then rein it in by focusing on the person of the president more than the executive branch as a whole. That’s another part of this reaction to the administrative state, the unitary executive. It seemed to me going through this that the unitary executive emerged first as thinking in terms of how do you reign in this administrative state and saying, well, not the “value-neutral expert bureaucrat” making decisions, but ultimately these people are making decisions on the behalf of a president. Getting the president more in charge, gripping the reins of the executive branch a little bit more.

But then it also evolved into just a broader, more general trust in the presidency over and against Congress and the courts at times, among some conservatives. This is one where there’s really major differences. At one point, you quote Buckley, I think, saying that conservatives had become spastic, specifically pro-executive, and that seemed about right. All of a sudden, here’s this really pro-executive branch conservative movement. How did this emerge, because presidency had always been this… It’s the progressive branch. It can unify. It can plan. It’s more plebiscitary. It’s the voice of the whole nation and not part.

Big progressive themes. And then second half of the 20th century, you get conservatives coming to embrace the presidency. How did that come about?

Johnathan O’Neill:

I am as verklempt about this one in a lot of ways as many of the people I’m writing about. I mean, one answer, which one of my political science buddies forced upon me as he was reading this manuscript, is Democrats held Congress for most of the second half of the 20th century, and the Republicans held the presidency for most of the second half of the 20th century. On what level, if you think the administrative state is getting out of control, Congress is not going to rate it in, it’s the one delegating all its authority to it and then running and hiding from any responsibility.

If you’re going to have any hope of reigning it in by people who think it needs to be disciplined and brought within the discipline of the rule of law more, then that leaves the executive branch. I think that there’s something elementally true about that, kind of unavoidably true maybe even in a mundane sense. I have a section of the book where I write about Scalia and Scalia’s juts of the administrative state. This was fundamentally his answer that you described a little bit, which was that ultimately the president has to be responsible for what the administrative state does and for directing it.

Scalia, pulling no punches as usual, says that means we should overturn Humphrey’s executor and he should be able to fire anybody in the executive branch too who is not administering the law that he’s ultimately responsible for executing. There’s a serious philosophical argument there, but it never really gets off the ground very far. I think in thinking about some of the things that you had said to me as I was preparing for this, I think seems like we’re moving away from that conception of reigning in the administrative state more.

It seems now in recent times that the court is sticking itself into the situation more by trying to reign in deference, reign in the Chevron Doctrine, and trying to compel on the opposite side of the equation Congress to take more responsibility for what it delegates to the administrative state by saying, “We’re not just going to simply defer to whatever an agency says.”

It seems to me that, and I’m not a lawyer, but the protections of independent agencies and civil service protections just doesn’t seem like a live option to wipe all of those away and say, “Yes, the president is responsible and he can fire anyone at any time,” which it may be reductive, but I think that is what you would ultimately need if you wanted to put the president in charge. I just don’t think that’s going to happen. Maybe it shouldn’t. But if it doesn’t happen, then it seems that the only other way around is to try to discipline Congress more from delegating so much and the court from endorsing all of the delegation.

John Grove:

Both of these seem to be swirling around very much to today. I mean, you do have some recent cases where some of these independent agencies, the discretion that they had and the protections from presidential removal have been pulled back in the last couple years. It seems like some of the Trump right has been focused on putting the president back in charge. But at the same time, it seems Congress, I think, there’s maybe, maybe I’m just hoping, maybe there is a growing recognition that ultimately reshuffling the executive branch isn’t really going to solve the problem long-term. Congress has to be involved, which stay tuned for that.

We will talk about that a little bit, which is where you ultimately bring the book. Let’s talk a little bit then about judicial review. Obviously when people think about conservatives in the Constitution, this is primarily what they think about. They think about the development of originalism, maybe slightly less division among the conservatives on this point than the executive questions that emerged. Of course, we didn’t get into that fully, but you really show nicely… I mean, pretty much the traditionalists on the executive, the traditionalists pretty much always were very skeptical of this vision of the executive, whereas Straussians and neoconservatives a little bit more inclined to see some benefits.

Particular visions of statesmanship probably played into that a little bit and what is expected of individual leaders. There was a lot of division on that question, probably not as much on judicial review, but certainly there were and continue to be some interesting cleavages among conservatives. I mean, the conservative approach to the court in the 20th century seems to have had its roots and a vision of judicial restraint. That’s such a slippery phrase because it could mean deference the legislature, deference the president. It could mean so many things.

But essentially there’s this core argument it seemed like that the idea of sticking to the actual written constitution and looking for a fixed meaning is a kind of fundamental restraint on the judge, in the sense looking at the Warren Court’s rights decisions or the New Deal Courts just abandoning of what conservatives would’ve seen as constitutional limits on the federal government, that these courts were looking to practical outcomes. They’re doing outcomes-based assessment or a moral analysis or something like that, and that the Constitution is a restraining force compared to that.

But of course, it could never just be a matter of deference to legislatures given the New Deal Constitution was made possible by extreme deference to legislature. It could never just be a judicial restraint. But from this visceral reaction against the New Deal Court’s demolition of the original constitutional limits of the federal government and then the Warren Court’s erection of new more substantive policy limits on all governments, federal, state, local, how did conservatives try to reassert some form of stable constitutionalism? Basically, tell us the story of originalism here or 20th-century originalism.

Johnathan O’Neill:

The first book I wrote was on the history of originalism, the emergence of originalism, and very much more lawyer and court centered. The jurisprudential emergence of originalism within the discourse of lawyers, courts, briefs, Supreme Court decisions. That book came out just as originalism had come back onto the scene. And then for the next 20 years, it just has exploded as far as the debate within law schools. It has, of course, much more of a presence on the court. Chronologically, I ended that book in the 1990s, and then I was fortunate enough that originalism just continued to explode.

My story of its initial emergence had some traction. By the time I got to this book, I came to see the reality of the notion that all conservatives want to claim to be originalists. And not simply within the context of briefs and arguments, which maybe we could talk about some of them do get involved in those, but in the sense that our core beliefs have a place in, are reflected in the Constitution, and therefore we’re the real originalist, we’re the true originalists.

John Grove:

Almost everybody does that at the end of the day, even the progressive jurors. I mean, at the end of the day, it’s always like, well, this basic principle is there.

Johnathan O’Neill:

We learned something about American political culture when we come to that realization though, right, which is to say it’s a failing argument. As some extreme progressive liberals say, it’s just a failing argument to say, “Yeah, the constitution, we’re going to junk it and start over.” That’s never going to happen. The more interesting argument is how do you sustain your claim to purchase in the originalist idiom. Again, to take the traditionalists just as an example, in the 1950s and the reaction to the Brown decision and coming out of Southern Agrarianism, there were essentially racist segregation defenses of states’ rights and reassertion of interposition as this is the real meaning of the Constitution.

Because it’s such a decentralized state-based regime, the federal government can’t tell us what to do on race, and we’re going to stand in the schoolhouse door. That conception of the union and it’s attachment to segregationism and racism had to be defeated again as a no longer acceptable form of originalism. That left the traditionalists, I think people like Nisbet, people like Russell Kirk, having to make the argument for decentralization, the decentralized constitution, the localist constitution as one based on community and, again, virtue at the local level. That’s an argument that doesn’t depend on the ultimate logic of state sovereignty or succession and is delinked from race.

I think is one that is still saleable and defensible. I’m not sure I’m answering the question in the way that you put it. I don’t think you want me to retrace the lawyerly development of originalism. What I try to do in this book instead is show that. Another example would be the Straussians who say… In the ’50s and ’60s, they’re saying the court should be our Republican school master. The court should teach the Damos virtue in the way that it interprets the Constitution, and that this was a project that was alive in the jurisprudence of John Marshall and others.

And that the way that you bring the polity into the constitutional project is the statesman-like judges who are teaching the principles of the regime as they decide cases. Now, all that’s fairly abstract, and again, it’s a kind of intellectual argument. A more on-the-ground argument is the libertarians who start out very dismissive and condemnatory of the New Deal state because of the massive changes in government, regulatory authority, et cetera, et cetera. For a while they’re just purest rejectionists. This is unfixable. We’re going to go live in a cave somewhere. And then by the time you get closer to the ’80s and ’90s, you have the Pacific Legal Foundation and the Institute for Justice.

You have the libertarians who by this point are starting to come into law school saying, “Okay, we can play the rights-based litigation game too in defense of property rights as opposed to overregulation,” and having some success at it. In cases also about First Amendment religious expression, cases about regulation of property rights. That really starts in the 80s in a way that you just didn’t see at all in the ’50s and ’60s. By the time you get to this point, you have religious groups litigating in defense of religious liberty.

You have property rights groups defending property rights and not simply submitting amicus briefs as they did, which not clear if anybody actually reads them, but actually sponsoring cases and taking them up to the court and winning some of them. It’s a small section of the book, but there’s a recognition. Again, this is a theme that runs throughout the book is it doesn’t seem like we’re immediately going to, even with the growth of originalism, constrain the court back into more traditional forms of interpretation.

Another way to say it would be that some form of modern judicial review in an assertive court is here to stay. The question for conservatives is, do you put your tail between your legs, or do you gin up your own litigation shops and try to join the battle? Increasingly, they’ve chosen the latter.

John Grove:

Well, actually, I’ll turn then to this question. Two Supreme Court cases from the last term I’ll just bring up, and perhaps maybe they point to the ways in which conservatives in some ways failed to make a dent, and in others they did turn the tide, but both of them are considered conservative victory. First is Bruen, the Second Amendment case. This is a conservative win. That was the language. But in many ways, it’s representative of the fact that the much more judicially restrained, traditional conservative view of the ’50s and ’60s and ’70s, which would’ve seen often argued pretty vehemently and I think they had a point that incorporation of the Bill of Rights was a dangerous road to go down.

It was a centralizing road. Bruen is just the outgrowth. Of course, it’s nothing new, but just the outgrowth of the fact that conservatives really did at a certain point decided to, as you said, gin up your own stuff. You start playing the game too. We’re going to get our own if we’re going to do this if the rights revolution is done, it’s accomplished, then we need to be standing up for the ones that we want. In some ways, Bruen is just indicative of that original vision of a restrained court trying to revive the Federal Republic. Now that corporation is a dead issue. People don’t even give that lip service anymore.

In some ways, that was conservatives entirely giving up on reversing the rights revolution. But then on the other hand, you have Dobbs and, of course, Roe is the case that conservatives had focused on for the last 50 years. It was the paradigm case of the overreaching court that was just making things up out of thin air without any textual basis at all. But it was also seen as the monument of the expansive progressive accomplishments made possible by the court. To a lot of people, that being overturned just five years ago, that being overturned was seen as, “That’s never going to happen.

That’s impossible,” and then down and go. In that sense, huge victory. I don’t know, mainly I wanted to mention Bruen there especially because you mentioned the tendency of that question Conservatives always had to ask was, what do you make your peace with and what do you fight? But also just Dobbs. What changes in terms of the calculation of that question? What do you make your peace with? What do you fight? What are the possible future? Dobbs, here’s an issue that was nationalized 50 years ago.

It was seen by so many as completely settled, done, it’s over. And now we have abortion back at the state level. In some ways, some people might see that as, hey, well, look, there are things that we thought were impossible that actually maybe are. Does Dobbs change the calculation of that issue at all?

Johnathan O’Neill:

I’ve been pondering that myself. One quip that I have made to myself and sometimes to others is Dobbs proves that what the court gives it can take away. I think as you’re alluding to, in some ways, the more basic question is, do you really like that, or does that really sit well with the kind of regime…

John Grove:

How many op-eds are there now every day from progressive people that could have been copy and pasted from a conservative in the 1980s and ’90s about the robed masters making our rules for us? Sorry, go ahead.

Johnathan O’Neill:

Yeah, no. I mean, you’re exactly right. As we were alluding to earlier, I mean, you can do the same thing with the presidency, where the two sides end up switching poles over the course of the 20th century. I don’t think it’s an easy question to answer what to do with that. I mean, I guess what I would say about Dobbs, which I know more about, and a lot of people… The problem with rights discourse, again, as you were alluding to, is rights discourse is to shut down and truncate the political.

Once you raise the banner of a right, you’re saying, “Okay, the barriers are up. You can’t come in here anymore,” which certainly in some basic sense philosophically we would want to affirm that if one subscribes to the notion of natural rights, which I do on some level. But of course, this is all complicated when the court says we’re going to start inventing rights, which is what happens in Griswold. I was thinking to myself as I was getting ready for this.

Actually, many moons ago, I wrote my master’s thesis on Griswold in the emergence of the Griswold opinion, which as many listeners I’m sure know is what creates the right of privacy, which is originally a contraception to defeat a Connecticut contraception law, anti-contraception law. One of the things that always impressed me about this situation was for probably a decade, the sessions of the Connecticut legislature, which had a strong Catholic component, for several sessions in a row they would come up, should we undo the anti-contraception law? The Connecticut legislature reaffirmed it every time.

And then a cadre of Yale law professors get together and start creating this case that they want to get in front of the Warren Court to undo the Connecticut contraception law. The court invents the right of privacy, undoes the Connecticut anti-contraception law, and we move on nearly a decade later to Roe. The question then, is something like contraception a constitutional issue, or does it have really little to do with the Constitution and should remain in the realm of politics? I think the more that you have a court inducing rights out of whole cloth, that common everyday citizens and even lawyers say, “Where does this come from,” the more vulnerable the supposed right is.

Therefore, even though it has been the law of the land for 50 years and some in basic sense illegitimate. And that this is certainly as a matter of life and death, this is a political issue. People who want to govern themselves should be allowed to take hold of this issue in politics and deal with it. I think that is the best defense of what the court has done and what it should have done all along and what actually was happening before Roe v. Wade. Surprise, surprise, some conservative states are defending abortion in their constitutions and their statutes right now as a result of Dobbs. Some are outlawing it.

Some are revisiting the placement of their bans as far as how many weeks should be allowed. In other words, we’re having politics about this again. I think particularly an issue that is so divisive and has such moral components on both sides, that if we’re going to be a federal self-governing people, then this is where it should be sorted out. One of the things federalism means is that regulatory regimes will differ on issues such as this one, and that’s okay.

John Grove:

Where things should be sorted out. That leads me to my last question, and I’m going to give you a few minutes to talk about maybe the only point in the book where I could tell that where you really came down. You were scrupulously objective throughout this, aside from a hint here and there, usually couldn’t really tell your proclivities on these various groups of among conservatives. But one area where you do advise, especially looking to the future, is to think about legislatures.

You were just talking about state legislatures, but in the book you talk about Congress. Basically you say conservatives on the whole haven’t given as much focused attention to Congress, why it seems so broken, and ways that it ought to be fixed. Talk a little bit about that. Why have conservatives not focused on that and what are the possibilities by refocusing on Congress.

Johnathan O’Neill:

As to why they gave it so little attention is probably a harder question to answer, although James Burnham’s famous book from I think 1959, Congress and the American Tradition, which William F. Buckley always said, this is the place to begin with in American conservatism. That book really should be reissued and deserves to be read, and, of course, Willmoore Kendall too, his defense of Congress against the presidential majority. I think that some of this is that once you get the New Deal administrative state hitch to the rhetorical plebiscitary vision thing presidency, as Burnham said, Congress starts to be just more of a sounding board and a rubber stamp.

To some extent, this is a hurdling of the separation of powers. Congress is simply to be led by the president and to endorse the president’s party program. And then why would you then give much attention to affirming Congress if it seems increasingly irrelevant? When you get the rights revolution of the war in court, the court says, “Well, we now have the power. We’re going to invent rights and strike down the actions of Congress and state legislatures too.” It’s not really where the action is. Why would you give it much attention? You should develop an argument about originalism, or you should whisper in the prince’s ear who you think is going to become president.

I think some of it is due to the development of the institutions after the New Deal. Congress participated in it and allowed itself to be more irrelevant. I think what we’re seeing now with undeclared wars, invented rights, bureaucrats running the nation, everyone’s looking around saying, “How have we come to this past? Who can fix this?” I think the answer that I come back to is Congress can fix it. We have to figure out how to get Congress to fix it.

John Grove:

I can’t help but think about that meme of the guy in the hotdog suit that I don’t know where it came from, but you Google it, anybody listening. The hotdog car is crashed into the buildings. We’re all trying to figure out what happened. Congress is also responsible for a lot of this in the sense that they were so happy to delegate authority to the administrative state.

I mean, all the issues that had led to some dysfunction in Congress say the ’80s and ’90s, add to that today’s mass media and just so much, so many of the most famous, all of the most famous people in Congress, maybe with exception of leadership, are famous because they’re using Congress as a platform, Twitter and so forth. Is there a path to a serious, deliberative relevant Congress?

Johnathan O’Neill:

If I had a magic wand and wave it, I would. Again, a note of realism because as I been thinking about this and working on some things, some writing related to this, I mean, in a very serious, realistic notion, you have to accept that the Congress as an institution is not constituted to make consensus where there is no consensus in the polity, right? If the nation is fundamentally polarized and divided, on some level Congress is constituted to reflect that reality.

John Grove:

That’s where I always go back to. It seems like any discussion of rehabilitating Congress has to involve rehabilitating federalism to an extent in a renewed sense. Exactly what you said. If there’s no consensus, well, then what we have with abortion right now, it’s got to be determined at another level.

Johnathan O’Neill:

There’s a growing literature on how to fix Congress and growing discontent in Congress itself. Some of the things I’ve read have said one of the keys to reforms in the past where Congress did reform itself is increasingly members of Congress have to become discontent with their own irrelevance, effectlessness, uselessness, and really not enjoy it anymore enough to try to change it. That’s one answer. Of course, the other answer is a simple answer, but also the most complex answer is they will respond to what their constituents want. Some of it is just the down-home political answer of the constituents demanding more of the people that they send there.

But there are other fixes too. One of the ones that I like being a constitutional guy, and this is something that has come up in various places, is the presidency has its own constitutional advisors. The court issues its own constitutional opinions. Congress should create an institution for itself that advises Congress on Congress’ constitutional position vis-à-vis the other branches. Unsurprisingly, the Department of Justice typically comes down on the executive branch’s constitutional position.

Congress needs something like the Office of Legal Policy, a set of informed constitutional advisors that can… Because a lot of these people, I mean, a lot of them are lawyers, but they’re not constitutional lawyers, or they’re not versed in the minutiae of Supreme Court precedents or executive branch opinions that they have to actually contend with when the other side is putting them out as a defense of their own actions, since Congress needs more of a brain in this way.

John Grove:

What do they have? There is some service for the budgetary…

Johnathan O’Neill:

Congressional Research Service.

John Grove:

Congressional Research Service and there’s a budget one too. That at the very least, it sometimes gives you a little talking point to say, “Hey, these guys actually say this is going to add a ton to the debt.” You could have something like that at least, “Hey, these guys actually say this law is unconstitutional.”

Johnathan O’Neill:

Yes, yes, yes. To me, that’s an answer that I find attractive, and I think that would help the institution grow a few more fangs, which I think it needs.

John Grove:

All right. Well, we really only scratched the surface of Johnathan O’Neill’s terrific book, Conservative Thought and American Constitutionalism Since the New Deal, which is available now. Sure to be an essential resource for anybody who writes and researches on the history of conservatism. Professor O’Neill, thanks so much for joining us.

Johnathan O’Neill:

Thank you very much. I’ve enjoyed it thoroughly.

John Grove:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts.