Law's Culture: Conservatism and the American Constitutional Order
Frohnen, Bruce P., Harvard Journal of Law & Public Policy
I. THE CONSERVATIVE PERSUATION II. CONSERVATISM AND THE AMERICAN FOUNDING III. LAW'S CULTURE IV. JUDICIAL INTERPRETATION AND THE LIMITS OF LAW V. INTEGRATING THE TRANSCENDENT WITH THE CONCRETE VI. CONCLUSION: POLITICS, CULTURE, AND LAW
In an important article on Judicial Activism and Conservative Politics, (1) Ernest A. Young argues that it is not possible to define the Rehnquist Court as consistently conservative. This is due in part to the significant doctrinal inconsistencies in the Court's decisions and in part to the fact that "some areas of constitutional law--such as free speech--have gotten so ideologically turned-around that it is very difficult to say what is 'conservative' and 'liberal' anymore." (2) There is indeed significant confusion as to what it means to be "conservative" in the field of law. At least in part this is because the term is used as shorthand for one who is merely anti-poor people, (3) pro-creditor, (4) "extremely deferential and partial to the state," (5) or possessed of "a political preference for majoritarian power over individual rights and liberty." (6) This article seeks to add coherent content to the term "conservative" in the legal context by setting forth the traditional conservative vision of law in general and of American constitutionalism in particular. The goal is not an iron-clad formula for predicting the Court's decisions on the basis of political philosophy. Rather, it seeks greater understanding of the general conservative viewpoint to provide greater conceptual clarity and the basis for developing more reliable predictive criteria.
The article begins with a brief introduction to traditional conservative thought, emphasizing the work of Russell Kirk, a leading founder of post-World War II conservatism in America (7) who did much to shape that body of thought. (8) It proceeds to outline the conservative view of the American Founding era--contrasting it with the more ideological vision of the origins of American constitutional government provided by neoconservatives, the ideological competitors of traditional conservatives. Then, it outlines the historical and cultural factors shaping American constitutionalism, the limits of law and constitutionalism--including the conservative groundings for a jurisprudence of original intent--and, finally, the conservative approach to integrating natural law principles with historical experience. The resulting picture is one of law in general and the American Constitution in particular as a culturally-rooted set of rules intended to preserve the permanent, universal, and interdependent goods of order, justice, and freedom. (9) For conservatives, law and its interpreters play relatively limited roles in the organization of society; roles necessitating adherence to standards and interpretations embedded in the culture and history of the people. (10) Thus, the conservative vision is opposed in fundamental respects to prevalent forms of modern jurisprudence, but is nonetheless deserving of greater understanding in the interest of conceptual clarity and fair debate. (11)
I. THE CONSERVATIVE PERSUASION
Kirk's Conservative Mind is often credited with forging an intellectual tradition for modern American conservatism. (12) In it, Kirk traces conservatism's roots to British statesman Edmund Burke and sets forth six "canons of conservative thought." These canons can be summarized as follows: (1) "[b]elief in a transcendent order, or body of natural law, which rules society as well as conscience;" (2) attachment to diversity in human lives and social relations "as opposed to the narrowing uniformity, egalitarianism, and utilitarian aims of most radical systems;" (3) "[c]onviction that civilized society requires orders and classes, as against the notion of a 'classless society;'" (4) respect for private property as a bastion of liberty; (5) trust in "custom, convention, and old prescription" as protections against both anarchy and tyranny; and (6) commitment to prudent change combined with opposition to hasty or overzealous reform. …