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06/27/2020

Jack Balkin: The Great Debate in the Conservative Legal Movement
Michael Ramsey

At Balkinization, Jack Balkin: The Great Debate in the Conservative Legal Movement.  From the introduction:

There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.

Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.

The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.

By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.

...

Each part of the conservative movement, in other words, saw something to gain from originalism and textualism. The logic of originalism and the logic of the different forms of conservatism (more or less) converged.

Several things happened in the past twenty years that have upset those assumptions and created tensions within the conservative legal movement. Today's intellectual ferment is the result of those changes. ...