AuthorMerriam, Jesse
PositionSubstantive Due Process: Critical Safeguard of Fundamental Rights, Flawed Doctrine or Illegitimate Fiction
  1. The RISE of Legal Conservatism: Formally conservative. Substantively Conservative. 75 A. Background on the Post-War Conservative Movement 75 1. Before National Review': The Baltic Over the Meaning of Conservatism. 75 2. Fusion ism and the Triumph of National Review Conservatism. 79 3. Willmoorc Kendall's Strategy for Conservatives and Law 82 4. Brent Bozell's Critique of the Warren Court Revolution. 87 B. The Wolf of Conservatism Comes to the Legal Academy 90 1. Legal Realism v. The Legal Process School. 91 2. Herbert Wechsler and the Shift Toward Neutral Principles. 93 3. Robert Boric and the Rise of Originalism. 96 4. Raoul Bcrger and the Originalist Critique of the Warren Court's Fourteenth Amendment Jurisprudence. 97 II. The Dec line of legal conservatism: Formally Conservative, Substantively Liberal 104 A. The Four Events That Turned the Reagan Revolution into a Counterrevolution 105 I. The Horowitz Report and the Conservative Embrace of Civil Rights. 105 2. The Federalist Society and the Legal Conservative Movement's Fusionism. 108 3. Justice Scalia and the Rise of Public-Meaning Originalism 109 4. The Loss of Political Will and Judge Bork's 1987 Confirmation Hearings 111 B. Turning the Reagan Movement into a Libertarian Movement. 112 C. New Ornginalism 120 1. Three Conceptual Differences Between Old Originalism and New Originalism 121 2. Three Political Differences Between Old Originalism and New Originalism 123 Conclusion. 128 This is a story about how and why social conservatives began to look beyond originalism. The focus of the story is how this transition within legal conservatism relates to the topic of this Faulkner Law Symposium. "Substantive Due Process: Critical Safeguard of Fundamental Rights. Flawed Doctrine, or Illegitimate Fiction." But the implications are much broader, extending beyond substantive due process, and indeed, constitutional law. The broader story is about legal change and shitting political coalitions

    Before we begin, a caveat is in order In tracing the development of how social conservatives began to look beyond originalism, 1 will not argue whether "substantive due process" should be understood in accord with any of these three positions. I will instead describe how legal conservatism as a movement has shifted on these positions in concert with broader changes in conservative and originalist thought. I will argue that these shifts have had a significant impact on legal discourse, producing an implosion of legal conservatism as an organized social movement. This is not an argument for a version of substantive due process as much as it is a story of how shifting views on substantive due process have contributed to a larger crisis within legal conservatism.

    This crisis was on full display on March 31. 2020. when Harvard Law School Professor Adrian Vermeule startled the legal world by writing an essay for The Atlantie on how legal conservatives must start to think "beyond originalism."(2) Vermeule, a highly influential constitutional theorist and Catholic "integralist,"(3) explained in the Atlantic article that originalism "has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation."(4) Vermeule therefore proposed that conservatives adopt a new form of constitutional interpretation, a form that Vermeule dubbed "common-good constitutionalism"(5) i.e., a constitutionalism "based on the principles that government helps direct persons. associations, and society generally toward the common good,"(6)

    Just a few days later, Georgetown Law Professor Randy Darnett issued an extensive and vituperative reply, also published in The Atlantic.(7) Barnett. a leading originalist and libertarian thinker. warned that Vermeule's "common-good constitutionalism" is merely "conservative living constitutionalism."(8) And "this wolf comes not as a sheep, but openly "as a wolf."(9)

    Barnett's phrasing, derived from an influential Justice Scalia dissent,(10) refers to how liberals have often viewed originalism as a "judicial cover"--i.e., as a way of dressing up "the wolf of conservative judicial politics in "the sheep's clothing" of judicial neutrality.(11) Bamctt thus invoked this phrasing to contrast his own originalism with Vermeulc's "conservative living constitutionalism." which makes no attempt at judicial neutrality. In Barnctt's view, Vermeulc's "common-good constitutionalism" comes as a "wolf"--an open and flagrant danger to liberal values and goals.(12) The implication of Barnett's argument, of course, is that liberals should reconsider their support for "living constitutionalism." given that it justifies Vermeulc's "conservative living constitutionalism." And liberals should likewise reconsider their indictments against originalism and originalists.(13)

    For anyone who does not closely follow trends in American legal conservatism, the Vcrmeulc-Barnett squabble must have been confusing perhaps even bewildering. Given that an originalist interpretation of the Constitution would seem to justify things like established state churches (14) and state promotion of public morality (including the regulation of marriage, abortion, pornography, and homosexuality),15 why would a "social conservative"(16) like Vermeule be so eager to look "beyond originalism"? This question can be adequately answered only if one appreciates multigenerational trends within legal conservatism as a movement. the Federalisi Society as an organization, and originalism as a mode of constitutional interpretalion.

    Over the last year, this intramural feud has intensified. Several prominent scholars and pundits within the legal conservative movement have recently called for a reconsideration of originalism.(17) This has prompted Josh Blackman to offer a dire prognosis for the legal conservative movement: Blackman warns that, if in its upcoming abortion case, Dubbs v. Jackson Women's Health Organization.(18) the Supreme Court does not reject the substantive due process doctrine developed in Hoe v Wade. ortginalism and the Federalist Society will lose their credibility within the larger conservative movement. In Blackman's words, "Dobbs is the fulcrum on which our movement pivots," and a Dubbs decision that affirms Roe "could be the end of FedSoc as we know it."(19)

    This Faulkner Law Symposium, in other words, is coming at an auspicious time. The aim of this Article, within the context of the Symposium, is to shed light on why Professor Blackman has identified Dohhs (and by extension, substantive due process) as the fulcrum of legal conservatism But my more general aim is to show how. over the last 75 years, legal conservatives have shifted from viewing the Fourteenth Amendment as a foe to viewing it as a friend. And in the process, legal conservatives have shifted among the three constitutional positions identified in this Symposium. Indeed, the first two generations of legal conservatives took Position A (viewing the federal judiciary's substantive protection of uncnumcratcd liberties against state and local governments through the Fourteenth Amendment as an "illegitimate fiction" that has no basis in any of the provisions in the Fourteenth Amendment). Bui beginning in the early 2000s. the legal Right began shifting toward Position B (viewing "substantive due process" as a "flawed doctrinc," in that the federal judiciary's substantive protection of uncnumcratcd liberties against stale and local governments has a basis in the Fourteenth Amendment but in the Privileges or Immunities Clause rather than the Due Process Clause). After Position A became an "off the wall" position.(20) the debate over substantive due process shifted--both among legal conservatives, and within the legal academy as a whole--so that the debate is now between Position B (accepting much of the doctrine in its effect but tracing its proper ongin to the Privileges or Immunities Clause) and Position C (viewing substantive due process as a "critical safeguard or fundamental rights," one that operates independently of the additional protection provided in the Privileges or Immunities Clause).

    The result is that, insofar as substantive due process is concerned, the Left-Right division in American law has become largely a matter of form: Whereas those on the legal Right provide originalist reasons for supporting the rights that the Court has generated through substantive due process (e.g.. the incorporation of the Bill of Rights, privacy rights), those on the legal Left openly admit that they support a broad and evolving view of substantive due process to make the Constitution fit changing political values and circumstances. In short, at least when it comes to the liberties the Court has derived through the Due Process Clause, there are no more "wolves" in the legal academy, because the nononginalist Left and the originalist Right largely agree on the substance of Fourteenth Amendment liberties. But while they are both "sheep" in terms of their relationship to the established legal order, one "sheep" comes openly as a "sheep." and the other "sheep" comes deceptively dressed as a "wolf." I he goal of this Article is to trace shifting conservative positions on the doctrine of substantive due process, as part of a broader exploration of how and why some of the "sheep" of legal liberalism came to be dressed as the "wolves" of legal conservatism.

    In the course of this exploration on substantive due process. the Article will engage three broader themes relating to scholarship injudicial politics and constitutional theory One, by showing how originalism and conservatism both have contestable meanings and applications, the Article will challenge normative efforts to root out the "true conservatism" or the "true originalism." Understanding how these concepts operate in our political and legal discourse requires studying how they have changed over an extended period of lime, rather than...

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