Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

The Rise of the Conservative Legal Movement-- An Exercise in Living Constitutionalism

By Jack M. Balkin

Tomorrow I'll be speaking at the American Enterprise Institute at a panel jointly sponsored by AEI and Brookings on Steve Teles's wonderful new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Also on the panel will be Michael Greve, an AEI scholar in residence who was the cofounder and executive director of the Center for Individual Rights, an important conservative public interest law firm. William Galston of Brookings will moderate.

Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.

That may sound strange given the familiar associations between conservatism and originalism, but in fact conservative legal though is a major contributor to the living constitutionalism of the present generation. Originalism and a call for a return to origins was one of the tropes that conservatives, like many other social and political movements before them, used to persuade people to reform constitutional law.

What conservatives were doing, in effect, was to try to persuade people-- and courts-- to keep the interpretation of the Constitution in sync with changing values-- in this case, conservative values. These values came into dominance as a result of Republican electoral successes, but also, as Teles details, through creating a conservative counter-establishment outside of electoral politics and in civil society. Obviously, many conservative arguments (made sincerely, I do not doubt) were for a return to the older, "correct" readings of the Constitution, but the actual effect of the practice was an exercise in living Constitutionalism.

You can read Teles' book as a partial critique of Sandy Levinson's and my theory of partisan entrenchment, which argues that constitutional change comes from successive appointments in the federal judiciary, reflecting the vector sum of political forces at the time of appointment. Teles point, which I think is correct, is that it's not enough to appoint new judges and Justices. You have to have a sufficient stock of potential judges and Justices who agree with the aims of your movement that you can appoint. Equally importantly, you have to do work on the "supply side" to provide a litigation support structure that can bring cases before the courts you staff. And you have to do considerable groundwork to contest and change the legal culture so that conservative ideas previously considered "off the wall" get a fair hearing and can be thought of as "on the wall." That's particularly important for a professional culture like that of the law, because professionals generally don't like to be thought of as irresponsible, eccentric or out of the mainstream. Thus, you needed to create a series of institutions that would help reshape professional culture and civil society, including the creation of conservative think tanks and conservative public interest law firms, the funding of law and economics programs in the legal academy, and the promotion of networking organizations like the Federalist Society. All of these programs had to be funded by patrons to see which ones worked and which ones didn't, and the patrons had to continue funding the successful programs over long periods of time. The liberal legal culture that conservatives objected to didn't arise overnight, and the conservative counter-establishment didn't either.

Full post as published by Balkinization on March 23, 2008 (boomark / email).