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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, February 15, 2005 ::
    Meet the "genuine conservatives"

    I think I'm picking up a new meme from the academic Con Law Left in response to President Bush's reelection, renomination of judges, and possible S.Ct. vacancies to fill. The meme is: We're the real conservatives; we favor continuity, going slow, and no suddent shifts in constitutional law -- not like those Bushies, who aren't real conservatives at all because they favor (gasp) change in the jurisprudential status quo.

    The same move was made by numerous pundits in 1981: Reagan was not a "true conservative," see, because he wants to change things, whereas a "true conservative" would cherish the ancient folkways of the New Deal and the Great Society.

    Prof. Kathleen Sullivan recently told an audience at Penn:
    The purpose of a written Constitution is to prevent us from doing things that we regret. There is a notion of pre-commitment, a trump that serves exactly when temptation is greatest.
    That's quite true -- in a sense. E.g., "to be confronted with the witnesses against him" means "to be confronted with the witnesses against him," even if the reasons not to confront the defendant with the witnesses against him appear very good. (Yeah, I'm assuming incorporation. 'Nother day.) At the same time, the Constitution-as-check-on-government rhetoric, at such a high level of generality, is perfectly consistent with Lochner (when we're "tempted" to regulate working conditions) and Roe (when we're "tempted" to protect the lives of the human unborn).

    Then consider Bruce Ackerman, writing in the London Review of Books (I found this through Jack Balkin's blog -- thank you, Jack!):
    There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation.
    Yes, you'll have noticed how conservative the legal profession is. Can't walk into a big firm these days without being solicited for a Republican campaign. Can't visit a law school without stumbling into a faculty teach-in on the sanctity of human life or the importance of traditional marriage. Moving right along:
    Bork was a cutting-edge neo-conservative of the 1980s, but his successors may well go far beyond him, striking down laws protecting workers and the environment, supporting the destruction of basic civil liberties in the war on terrorism, and engaging in a wholesale attack on the premises of 20th-century constitutionalism.
    The Constitution, of course, is a late 18th-century document, and its most transformative and influential amendments are a set of mid-19th-century documents. But what Ackerman wants to protect -- the tradition that turns him into a walrus-mustached Tory swinging his stick at the confounded radicals -- is "20th century constitutionalism." Oh, that tradition!

    But wait -- there are "genuine conservatives" out there after all:
    Or then again, Bush may hesitate. Despite his professed admiration for neo-con jurists such as Antonin Scalia and Clarence Thomas, he may offer up genuine conservatives, such as Sandra Day O’Connor, who reject radical change as a matter of principle.
    So, all you "genuine conservatives," pack up your monocles and shooting sticks and go join Justice O'Connor and Prof. Ackerman and "reject radical change." You have nothing to lose but your reputations as liberals, and somehow I don't think those are in real danger.

    :: David M. Wagner 6:10 PM [+] ::

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