Varieties of American Conservatism
Discover the intellectual roots of modern conservatism.
When Justice Brett Kavanaugh took the bench in October 2018, it marked the culmination of the Republican Party’s decades-long quest to secure a conservative majority on the Supreme Court.
How will the new majority affect constitutional law? Justice Kavanaugh’s confirmation brings to the forefront divisions within the conservative legal movement that have existed for decades. In this course, students will explore the debates and disagreements among conservatives and libertarians over how to best understand the Constitution generally and the judicial power specifically. We will consider debates over originalism, natural law, traditionalism, and the burgeoning debate between advocates of “judicial restraint” and advocates of “judicial engagement.” To that end, we will read not just modern authors but also their historical antecedents.
This course will consist of two sessions per day over a one-week period. Each morning, students will participate in seminar discussion led by legal expert Adam White. Each afternoon, they will hear from a leading scholar or practitioner on that individual’s area of expertise. Past guest speakers have included Hadley Arkes (James Wilson Institute), Randy Barnett (Georgetown Law School), Alan Gura (Gura PLLC), Carrie Severino (Judicial Crisis Network), and Ed Whelan (Ethics and Public Policy Center), among others.
Image courtesy The White House
Adam J. White on the conservative legal movement
This one-week course will take place in Washington, DC. It is a full-time commitment for Monday–Friday, with required sessions in the morning, afternoon, and some evenings.
Faculty
Adam J. White
Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
Adam J. White
Adam J. White is a Resident Scholar at the American Enterprise Institute, and an Assistant Professor at George Mason University’s Antonin Scalia Law School, where he also directs the Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. He writes widely on the administrative state, the Supreme Court, the Constitution, and regulatory policy, with special focus on energy policy and financial regulation.
He is a Contributing Editor with National Affairs, The New Atlantis, and City Journal, and a contributor to the Yale Journal on Regulation‘s blog, “Notice and Comment.” He was recently appointed to the Administrative Conference of the United States, a federal advisory board focused on improving federal agencies’ practices. He also serves on the leadership council of the American Bar Association’s Administrative Law Section; on the executive committee of the Federalist Society’s Administrative Law Practice Group; and on the board of directors of LandCAN, a nonprofit organization dedicated to promoting conservation on working lands.
Prior to joining AEI, he was a Research Fellow at the Hoover Institution and an Adjunct Fellow at the Manhattan Institute. In addition to his research and writing, he practiced law with Boyden Gray & Associates, writing briefs on constitutional and regulatory issues in the Supreme Court and various other federal courts. (He continues to be “of counsel” to the firm in three pending cases involving the Consumer Financial Protection Bureau and the Federal Communications Commission.) Previously, he was a Senior Associate with Baker Botts, working on various constitutional and regulatory matters, including energy infrastructure regulation.
He received his J.D. (cum laude) from Harvard Law School, and his B.B.A. (economics) from the University of Iowa College of Business. He clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
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Constitutional Courts: Foundational Debates
Recommended Reading:
To learn more about other important figures in constitutional law, we encourage you to visit ContemporaryThinkers.org, a website covering the ideas and influence of pioneering intellectuals of the twentieth and twenty-first centuries. Sponsored by the Hertog Foundation, ContemporaryThinkers.org includes sites devoted to Walter Berns, Martin Diamond, Herbert Storing, and many others.
Readings:
- Brutus 15
- Federalist 78 (Hamilton)
- Federalist 37 (Madison)
- Federalist 51 (Madison)
- Tocqueville, Democracy in America (excerpts)
- Gibbons v. Ogden (1824)
Discussion Questions:
- What is the nature and character of judicial power, according to Brutus? To Publius? To Tocqueville?
- Why does Publius believe that the judiciary is the “least dangerous branch?” What assumptions (e.g., about the branches of government, law as a profession, human nature, etc.) are reflected in this argument?
- Is judicial independence a constitutional virtue or a constitutional vice?
- In a constitutional government based on popular sovereignty, how much power should we commit to the countermajoritarian body of judges and lawyers?
- To what extent do Brutus’s, Publius’s, and Tocqueville’s account of the judicial power presume certain qualities among the judges themselves?
Liberty and “Judicial Restraint”
Readings:
- Pierce v. Society of Sisters (1925)
- Lochner v. New York (1905)
- Buck v. Bell (1927)
- Griswold v. Connecticut (1965)
- Eisenstadt v. Baird (1972)
- Alexander Bickel, “Notes on the Constitution” (1975)
- William Rehnquist, “The Notion of a Living Constitution” (1976)
Discussion Questions:
- What is judicial restraint? How is it opposed to judicial activism?
- In deciding cases and controversies, how should judges go about exercising “merely judgment?” Is judicial restraint an answer to this problem?
- What is the “counter-majoritarian difficulty” facing judges? Why might judicial review have a tendency to “weaken the democratic process” over time?
- How much deference should judges give to Congress? To the will of the majority?
Conservative “Originalism”
Readings:
- Edwin Meese, “Speech Before the ABA” (1985)
- Antonin Scalia, “Originalism: The Lesser Evil” (1989)
- Antonin Scalia dissenting, Planned Parenthood v. Casey (1992)
- Harvey Wilkinson, “Originalism: Activism Masquerading as Restraint” (2012)
Discussion Questions:
- What is originalism, according to Meese and Scalia? How is original intent different from original meaning?
- What were modern originalism’s early proponents trying to accomplish? Does originalism accomplish it?
- How can the Constitution’s objective original meaning be ascertained and applied by judges? What should judges do when that meaning is not readily apparent—and, more important, how can they know when they’ve arrived upon such an ambiguous case?
- Why does Scalia call originalism “the lesser evil”?
- Is Wilkinson correct in arguing that originalism does not actually promote judicial restraint?
Libertarian “Judicial Engagement”
Readings:
- Randy Barnett, “Scalia’s Infidelity” (2006)
- Debate: “Scalia v. Epstein” (1985)
- Clarence Thomas, “Toward a ‘Plain Reading’ of the Constitution: The Declaration of Independence in Constitutional Interpretation” (1987)
- Clarence Thomas, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment” (1989)
- Hadley Arkes, “A Natural Law Manifesto” (2011)
Discussion Questions:
- What is judicial engagement? How is it different from judicial restraint or judicial activism?
- What is judicial engagement’s relationship to originalism?
- How strongly bound should judges be to the doctrine of stare decisis?
- Should judges read the Constitution in light of natural rights theory or the natural law principles of the Declaration of Independence? Does such an approach constrain or empower judges?
- How should conservative jurists balance their devotion to a law’s original public meaning with other conservative principles in judicial decision-making (e.g., precedent, federalism, popular rule, etc.)?
- What do Barnett’s, Thomas’s, and Arkes’s respective approaches share in common? In what ways do they disagree with one another?
“Republican Remedies”
Readings:
- Abraham Lincoln, First Inaugural Address (1861)
- Thomas W. Merrill, “Bork v. Burke” (1995)
- Employment Division v. Smith (1990)
- Yuval Levin, “Taking the Long Way” (2014)
- Mary Ann Glendon, “The Land of Rights” (1991)
- Alexander Bickel, “Watergate and the Legal Order” (1974)
Discussion Questions:
- What is conventionalism? Why should conservatives prefer conventionalism, according to Merrill?
- What is the “conservative idea of liberty,” according to Levin?
- How much deference should judges give to states and local communities? To practical experience and tradition?
- To what extent does the legitimacy of a democratic government rest on the consent of the people, and to what extent does it rest on the correctness of its principles?
