Law's culture: conservatism and the American constitutional order.

• Author: Frohnen, Bruce P.

1. 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)

1. 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. (13)

   These canons do not produce a blueprint for a perfect society or posit any single overriding value to which social action must aim. Indeed, Kirk rejects such programs as dangerously "ideological," by which he means overly abstract, simplistic, and likely to lead to political zealotry. (14) Yet Kirk's canons do provide a general picture of conservatism as a "persuasion" supportive of habit, tradition, and accustomed ways of life (15) They show an attachment to pre-existing institutions, beliefs, and practices, combined with a determination to use prudence in applying general precepts of a moral, universal natural law to the particular needs of one's given society. (16)

   Kirk, self-consciously following Burke, translates conservative political precepts into specifically constitutional principles. First among these is the principle "that a good constitution grows out of the common experience of a people over a considerable elapse of time." (17) Constitutions capable of protecting "order, justice and freedom" (18) in this view are not manufactured, but develop out of the habits and social relations of the people. (19) Second among Kirk's Burkean constitutional principles is the religious nature of mankind and the necessity for the Constitution and public order to uphold transcendent standards, impressing on those in power their duties to a power higher than themselves or the state. (20) Kirk's third constitutional principle is society's need for a "natural aristocracy" combining those with personal, demonstrated talent and those who have inherited power, position, and responsibility to the public. (21) Finally, Kirk asserts the principle that a good constitution will maintain "a balance or tension between the claims of freedom and the claims of order." (22) In order to protect the rights of individuals as it ought, the constitution also must protect the order of society such that anarchy will not result. (23)

   Like his canons of conservative thought, Kirk's constitutional principles stop short of providing a blueprint for the one best society. Instead they provide a sketch of general goals--again summed up as order, justice, and freedom (24)--and an argument that these goals should be pursued through a diversity of communities and classes given order by traditional beliefs and customs. Yet Kirk's focus is not on discussion at this level of general principle. Instead, as befits one committed to cultural and historical roots, he focuses on conservation of his own inherited constitutional order--that of the United States.

2. CONSERVATISM AND THE AMERICAN FOUNDING

   Much hinges on the question of whether America was founded out of a commitment to ideological goals or a desire to conserve an inherited way of life. The answer indicates the nature and tendency of our founding documents and our nation's intended path. If America is at its core a set of ideological beliefs we all must accept and serve, then we must constantly reshape ourselves and our way of life to fit these ideas. (25) But, if our nation was founded to preserve a pre-existing way of life that the Founders valued deeply, then it is this concrete way of life--the institutions, beliefs and practices central to the local communities in which we live--that we must work to conserve, rather than any abstract notion of the best political regime. (26)

   Kirk emphasizes the role of conservatives, particularly John Adams, in seeking to maintain the historical continuity of Americans' traditions and ways of life within their new nation during the Founding era. Of course, Jefferson and his followers took a different path. They sought to reform society on the basis of abstract principles akin to those promoted by the French revolutionary Jacobins. (27) Yet, in Kirk's view, even the abstract language of the opening of the Declaration of Independence is of limited relevance: it must be read as an appeal to French sensibilities occasioned by Americans' need for French financial and military support. (28) Moreover, it is to the Constitution itself that we look as our governing document, and Kirk seeks to re-emphasize the extent to which the American Constitution was drafted by men rooted in a culture of local communalism, practical religiosity, and commitment to social traditions and virtues as opposed to political ideology. (29)

   Kirk's is most decidedly a conservative Constitution. It aims at maintaining political order and, more than this, conserving Americans' "social inheritance." (30) This interpretation puts Kirk in a curious tension with progressive historians. A tradition of interpretation beginning with James Allen Smith (31) and continuing through Vernon Parrington, (32) Charles Beard, (33) and Herbert Croly, (34) has read the Constitution as a conservative document intended to preserve inegalitarian distributions of wealth and power from democratic action. These commentators see American government as fundamentally (and unjustly) liberal in the sense of privileging individuals and individualism at the expense of communal concerns. (35)

   Traditional conservatives' rivals, the neoconservatives, (36) have built on the individualist reading of the Constitution, interpreting it as a positive good and seeking to portray America as a truly "new nation" founded on an ideological commitment to equality, progress and an abstract freedom divorced from prescriptive institutions, beliefs and practices. (37) Ironically, neoconservatives point to conservatives' insistence on the importance of American culture and history in shaping their constitutional order as showing that conservatives have, at best, only marginal relevance to the American constitutional experience. (38) Some neoconservatives have gone so far as to deny the very existence of traditional conservatism outside a few enclaves of extreme isolationism and pseudo-European pretensions. (39)

   In opposition to...