"Merely a moderate opposition to the trend of centralized government"

Damon W. Root | May 12, 2008

Writing in the spring issue of the Manhattan Institute's City Journal, Gerald Russello, author of The Postmodern Imagination of Russell Kirk, offers a provocative review of Steven M. Teles' new The Rise of the Conservative Legal Movement in America. In Russello's view, despite a number of clear victories—most prominently the Supreme Court appointments of Justices Scalia, Thomas, and Alito—conservative legal activists have largely failed in their endeavors. Here's why:

Perhaps the very strategy that enabled such conservative successes has also limited it: conservative groups adopted some of the premises of judicial liberalism, pushing for activist federal courts and the use of rights language to achieve their goals. Conservative lawyers, like their liberal New Deal forbears, flocked to Washington to take posts in presidential administrations, too often leaving state legal systems at the mercy of liberals (like New York's Eliot Spitzer). Instead of developing a truly conservative legal philosophy based on decentralization and the rights of local communities, the conservative legal movement often became merely a moderate opposition to the trend of centralized government and heavy reliance on the courts to achieve political goals.

One of my problems with this is that Russello's "truly conservative legal philosophy" lets state and local governments off the hook for various assaults on individual rights. I'd also distinguish more carefully between the various groups under discussion. For instance, elsewhere in the article Russello describes the great Institute for Justice (IJ) as conservative, when in fact they're libertarian, probably the single best example of what a truly libertarian legal philosophy might entail.

But Russello is undoubtedly correct that the rights-based IJ approach has taken a beating in recent years, most notably in the double-whammy of 2005, when the Supreme Court came out in favor of eminent domain abuse (Kelo v. City of New London) and against medical marijuana (Gonzales v. Raich). Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?

Whole thing here.

Comments

Rimfax|5.12.08 @ 11:12PM|#

If Scalia signifies anything, it is the bullshit behind the facade of small-government conservatism. This is same conservatism behind that crony capitalism upon which progressivism is modeled. The same conservatism that treated the Cherokee and Seminole as subhuman. The same conservatism that tried to keep and spread the institution of black slavery. The same conservatism that crushed the Whiskey Rebellion.

The association between conservatism and small government advocacy is only as old as the rise of the progressives. It is born of fear, and, as such, can be relied upon no more than the honesty of a thief.

Edward|5.12.08 @ 11:15PM|#

Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?

Maybe keep fighting the good fight but doing with candidates that aren't certifiable wacko nut jobs?

BTS|5.12.08 @ 11:17PM|#

Edward. Explain the connection between IJ and Ron Paul to me. Enlighten me, PLEASE. Because if there isn't one, then you ought to...hell, if there IS one, you ought to just shut the hell up.

Edward|5.12.08 @ 11:19PM|#

Who said anything about Ron Paul?

leTerrassier|5.12.08 @ 11:29PM|#

Liberalism: The federal government oppresses you.

Federalism: The state government oppresses you.

Neoconservatism: Everyone oppresses you.

Small government, big government, it's all the same.

Travis|5.12.08 @ 11:34PM|#

The Institute for Justice is the only Libertarian organization that is actually achieving results in the real world. I wish there was an Iowa chapter.

Travis|5.12.08 @ 11:38PM|#

I hate conservatives they always try to take credit for Libertarian ideas & then water them down to the point they are as bad as the status quo.

Mad Max|5.12.08 @ 11:38PM|#

"Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?"

That's not exactly the most neutral way of phrasing the question. Since our Constitution's scheme of federalism is more pro-freedom than the current regime, replacing the current regime with the original Constitutional understanding would be an unambiguous good, even if libertarians would fret that the states still have too much power to commit oppression. But counteracting such oppression with libertarian or right-wing judicial activism is itself an example of federal overreaching, which endangers freedom by the principle it establishes and the precedent it sets, regardless of the libertarian results in individual cases.

"Maybe keep fighting the good fight but doing with candidates that aren't certifiable wacko nut jobs?"

You're deserting McCain so soon, Edward?

Mike Laursen|5.12.08 @ 11:47PM|#

I don't agree that the Institute for Justice took a beating in Kelo. It was tremendously disappointing at the time, but the Supreme Court left the door open for the states to clean up eminent domain abuse individually. The Institute dusted themselves off and went to work at the state level. And have kicked some ass!

Looks like we have a couple of eminent domain initiatives coming up on our California ballot.

Mike Laursen|5.12.08 @ 11:49PM|#

The Institute for Justice is a libertarian organization. Small letter L.

Neil|5.13.08 @ 12:05AM|#

Judges are the biggest reason an Obama Presidency is so frightening.

Richard Daley for Supreme Court Justice. It could happen.

SIV|5.13.08 @ 12:22AM|#

Conservatives and libertarians have even more agreement on legal/judiciary matters than political ones. Intolerant cosmotarians are loath to admit this.

|5.13.08 @ 12:36AM|#

So long as the Feds are able to over-ride state law at will - whether by simply ignoring it the way the DEA likes to, or through legislative arm-twisting ('sure, you could pass that law, if you don't like federal highway funding') - then state-level victories are always subject to sudden reversal.

Kolohe|5.13.08 @ 2:00AM|#

The same conservatism that crushed the Whiskey Rebellion.

Now that's holding a grudge!

jtuf|5.13.08 @ 7:29AM|#

Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?

Different situations call for different approaches. In each case it depends on logistical considerations, the topic at hand, what level of government has jurisdiction over that topic, and where others are fighting over it. For example, if we are proposing a new bill on foreign policy, we should petition congress. If someone else is proposing a resolution on foreign policy at a town hall meeting, then we should say that the resolution is outside the council's jurisdiction.

|5.13.08 @ 7:59AM|#

The Supremes definitely decided Kelo correctly. As Justice Scalia, who is totally not my favorite Supreme, pointed out, deciding the case the other way would have turned the Supremes into the nation's zoning board of last resort. As for Gonzalez, well, conservatives hate marijuana. As for Russalo, anyone who would title a book "The Postmodern Imagination of Russell Kirk" is starting off on the wrong foot, totally. I mean, for one thing, Kirk was a horse's ass, irredeemably.

anon.|5.13.08 @ 9:17AM|#

"The Supremes definitely decided Kelo correctly. As Justice Scalia, who is totally not my favorite Supreme, pointed out, deciding the case the other way would have turned the Supremes into the nation's zoning board of last resort."

Scalia dissented in Kelo.

Gerald|5.13.08 @ 9:29AM|#

Thanks for noticing the review. I see your point about IJ, which I should perhaps have clarified in the review. However, I think my larger point is still valid: conservative legal grops have largely conceded the nationalized court-centered system invented by liberals beginning in the progressive era, so its victories have only been partial. I was not entering into the debate over whether or not smaller communities oppressed individual liberties as well as, or more than, the central government.

|5.13.08 @ 9:34AM|#

O'Connor's dissent in Kelo, joined by Scalia, among others.

robc|5.13.08 @ 10:16AM|#

Thomas's dissent for completeness. He also joined O'Connor's.

Rimfax|5.13.08 @ 12:46PM|#

IJ lost the battle in Kelo, but they made tremendous strides in the war. They brought the issue to the public notice and are largely responsible for framing the resulting outrage.

Regarding my seeming non sequitor about The Whiskey Rebellion, it demonstrates that, from the outset, conservatives were as willing as modern liberals to crush lives for the sake of tax revenue. The only difference between the two groups is who bears the brunt.

|5.13.08 @ 4:02PM|#

The Heller case might have the author changing his tune...