At Law and Liberty, Jesse Merriam (Loyola University Maryland): Is Legal Conservatism as Accomplished as It Thinks It Is? Here is the introduction (to a long post):
The editors of Law & Liberty have kindly put to me the following questions: “Is legal conservatism, in its moment of triumph, as accomplished as it thinks it is? Is it time to celebrate or are there problems on the horizon?” In answering them, it is best to begin with some background on the postwar conservative movement, so I will start there, and then briefly sketch how Election 2016 fits into the movement’s trajectory. Both are critical to what I have to say about the successes, failures, and future of legal conservatism.
The author answers the question "no," as this discussion of originalism suggests:
So, the logic goes, the legal conservative movement is indeed triumphant because it is co-extensive with the Federalist Society; the Federalist Society is principally about promoting originalism; and originalism has spread considerably since its formalization in the early 1980s—to the point that even Justice Elena Kagan said in her confirmation hearing that “we’re all originalists now.”
This reasoning ignores, however, the extent to which legal conservatism has advanced originalism inconsistently and pursuant to an ideological agenda that is not necessarily conservative. …
Likewise, this reasoning disregards how originalism is now practiced to accommodate liberal values and policies. Under the New Originalist approach to “original public meaning,” almost every constitutional controversy that reaches a federal court permits a wide range of originalist resolutions, always ready to be updated to fit the politics of the moment. As I explained in a previous Law & Liberty article, it was not until the legal conservative movement became predominantly libertarian that originalism took on this flexibility, and only then did liberal scholars and liberal-oriented law firms start looking to originalism as a vehicle for advancing liberal causes.
Many defenders of originalism see in this process a Wechslerian neutralization of constitutional discourse and the restoration of the rule of law. But the steps by which this process has occurred have been anything but neutral, in that they involved repeated efforts to fine-tune originalist theory so that it did not entrench outmoded social relations, but instead promoted rather broadly understood linguistic meanings that could be continuously updated with evolving (which is to say, progressive) normative content. As a result, originalists could point to each successive landmark liberal victory (for example, applying the Bill of Rights to the states through the incorporation doctrine, race and gender equality, sexual relations, same-sex marriage) and explain how it fits with the original meaning of the Constitution. This did not neutralize constitutional law; it created yet another juridical tool for concealing the extent and nature of our normative disagreements about law and politics.
He quotes me in this passage:
In contrast to the early days of legal conservatism, we now find a movement that is largely coextensive with originalism, to the point that the possibility of “a conservative living constitutionalist” is used to strike fear into the hearts of liberals, with the hope that they will finally see the Wechslerian virtues of originalism. In fact Professor Michael Ramsey has observed that “originalism is actually a middle ground between liberal living constitutionalism and conservative living constitutionalism.” If this is right, the movement is even worse off than I imagined, with the legal world playing a one-sided game whereby swarms of liberal living constitutionalists are trouncing a phantom opponent, as a handful of originalists play the role of umpire and tally up the score.
If the legal Right is going to have an actual movement, it will need a substantive agenda. It will also need some players in the game, rather than mere observers standing on the sidelines.
I stand by the quote (it's from a post about how originalism supports a broad view of birthright citizenship while a conservative living Constitution might not). And, to the extent that conservatives want to use the Constitution as a cover to enact their political preferences through the courts, then I agree that originalism is not always useful to them. I think originalism appeals to legal conservatives because it promotes the rule of law, because it often (though far from always) leads to conservative results, and because it often (though far from always) leaves policy decisions to the political branches, where conservatives tend to be more successful that they are with elite judges.
But I actually agree with the broader propositions of the article, that conservative living constitutionalism is underdeveloped as a theory, and that its broader development would be a useful contribution to constitutional debate. At the end of the post, Professor Merriam says that will be will be part of his next project.
(Thanks to Mark Pulliam for the pointer).
Posted at 6:26 AM