Conservative Legal Thought

CONSERVATIVE LEGAL THOUGHT….Publius makes an effort today to categorize contemporary conservative legal thought:

In the legal context, I believe that a nominee can be ?too conservative? in at least three different senses: (1) she subscribes to the king-in-wartime theory; (2) she?s a bible thumper; or (3) she?s hostile to the New Deal….So, when you hear that someone is ?too conservative,? the key question is determining what year that person wants to send America back to. For the #3 conservatives, it?s 1932. For the #2 conservatives, it?s pre-Enlightenment. For the #1 conservatives, it?s pre-Magna Carta. So take your pick ? 1932, 1600, or 1214.

Over at the Volokh Conspiracy, they’re all #3 conservatives, and not very happy ones at the moment. Why? They’re afraid that Samuel Alito isn’t a real conservative like Clarence Thomas, but instead a toothless liberal-in-sheep’s-clothing like….Antonin Scalia.

Yes, Antonin Scalia. Apparently, in Federalist Society circles, the Thomas-Scalia split in Gonzales v. Raich is a big topic of conversation. The issue relates to just how much power Congress has to regulate commerce-related activities via the Commerce Clause, and Randy Barnett writes that “Justice Scalia endorses the Roosevelt New Deal Court’s approach to that clause; while Justice Thomas endorses Madison’s approach.” In other words, 1940 vs. 1789.

David Bernstein follows up with a post agreeing that originalism is “in a state of crisis” thanks to Scalia’s weak-kneed unwillingness to suck it up and declare the New Deal unconstitutional:

Scalia’s fainthearted originalism begins to look a lot like, “I got into this business to overturn Warren Court decisions, and I’ll use originalism as tool to that end, but I’m not especially interested in reconsidering New Deal precedents.”

….But simply pulling a Scalia, and begging off from the tough issues as distractions from what I believe he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won’t do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That’s culture war politics, not originalism. [Italics mine.]

This strikes me as a remarkably honest assessment of what originalism is really about for most of its supporters, but unfortunately Bernstein doesn’t follow it up. Instead, he talks about whether or not genuine originalists should overturn New Deal opinions from the 40s, which strikes me as sort of like arguing over whether or not Superman could kick Green Lantern’s butt: harmless, to be sure, but hardly part of the real world. If Federalist Society members are convinced that even Antonin Scalia is too liberal for their taste, and what’s really needed is someone who will vote to repeal the Social Security Act, they’re just fantasizing, not discussing real-life issues. What’s the point?

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