What Does It Mean, in 2009, to Be a Political or Judicial Conservative? In the Midst of a National Paradigm Shift, Defining the Term Is Increasingly Challenging

By MARCI A. HAMILTON


Thursday, Jan. 15, 2009

At this point, it is simply a myth that the term "conservative" has any coherent meaning, whether the arena in which the term is used is political, or judicial. In this column, I'll consider how the term has lost meaning and suggest that a new paradigm is upon us.

The Use of the Term "Conservative" When the Context Is Political

In politics, "conservative" is a term that has seemed to have concrete meaning at particular moments in history, but that meaning has always shifted over time. There were the small-government conservatives, who valued democracy, accountability, and fiscal responsibility; Ronald Reagan is the leading example. There were the "values" (read: "religious") conservatives, who put their personal beliefs about how others should act above an emphasis upon small, accountable government. Highest on their agenda were their strong disapproval and, often, condemnation of homosexual marriage and families, abortion, and stem cell research. Here, President George W. Bush is the leading example. Then there were the aristocratic conservatives, such as William F. Buckley, whose lives and manners exemplified higher education and wealth. Finally, there were the libertarian conservatives, like the CATO Institute, which has been the leading organization touting the notion that the government should leave individuals alone to the extent possible.

So who is a "true" conservative? All of these, and none of these. At this point, there simply is no such thing.

Moreover, current events offer little hope that any big tent can be constructed under which one might bring these groups together under a conservative (or Republican) label. The sunken economy demands government intervention, which fits awkwardly with the fiscal restraint contingent, and with the tenets of libertarian believers. Meanwhile, as the recession affects the very basics of life – shelter, work, and even food -- for millions, the values conservatives' issues will have a more difficult time obtaining national focus.

On the Supreme Court, Even "Conservative" Justices Have Favored Federal Power

Meanwhile, the same point can also be made about those labeled as conservatives on the federal bench, and especially those on the United States Supreme Court. Not long ago, the "conservatives" on the Court were Reagan-like in their devotion to smaller government and states' rights. To put the point in legal parlance, Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas have been dedicated to federalism and the principle of limited federal power.

Many law professors – especially liberal ones -- initially reacted negatively to the movement at the Court in favor of limiting federal power, treating it as an inherently conservative development. The Court was called names such as "imperialist" at the time. Yet, while the Justices who touted the developments had all been nominated by Republican Presidents, it became increasingly clear over time that federalism is neither inherently conservative nor liberal, as I have discussed in a prior column. Rather, empowering states by limiting federal power creates political possibilities for those who are out of power in Washington, whether they are conservative or liberal. We've seen concrete examples showing that federalism is as likely to support liberal causes such as medical marijuana or the "right to die," as to support conservative ones like gun rights. Thus, federalism itself is a politically neutral principle that can be employed to spur conservative or liberal causes.

When federalism, or states' rights, was still treated as a conservative principle, the Rehnquist Court conservatives primarily focused on limiting Congress's power to act, and particularly its power to act pursuant to the Commerce Clause and Section 5 of the Fourteenth Amendment with cases like United States v. Lopez and Board of Trustees of Univ. of Alabama v. Garrett. The next logical step would have been limiting the ability of federal law to cancel out related state law by strengthening preemption principles. That would have required a reaffirmation of the "presumption against preemption" of state law by the federal government – a presumption that Anthony Sebok discussed in a recent column.

The Roberts Court has augmented federalism jurisprudence in this way, but not through the conservative Justices. Rather, as Sebok pointed out, a largely liberal set of Justices in fact revived the presumption in the recently decided Altria Group v. Good decision, thereby making it harder for the federal government to trump state law. Moreover, the so-called conservative Justices dissented, meaning that they stood behind federal power, at the expense of state power. Thus, what was once the hallmark of conservatism in the 1980s and '90s is no longer an indication of political identity.

On "Values" Issues Like Abortion and Gay Rights, the Court's Conservatives Have Reached Some Traditionally Liberal Results

The Justices also have dealt with the issues close to the hearts of the religious "values" conservatives, from abortion to gay rights. On abortion, they have not overruled Roe v. Wade, nor shown much of a desire to reach that extreme conclusion. More generally, too, the Court is taking historically smaller numbers of cases, even as the Chief exhorts the Justices to grant certiorari more frequently, and is showing no particular passion for pushing these hot button issues.

On gay rights, Justice Kennedy, at one time a "solid" conservative, has become moderate if not wholly liberal. He authored Romer v. Evans, which invalidated a Colorado law banning anti-discrimination rights for homosexuals. Then he wrote Lawrence v. Texas, which held that there is a fundamental right for adults, including homosexuals, to engage in private sexual conduct without state interference. That is certainly not a "values" conservative position, though it is consistent with a libertarian conservative world view.

On another conservative front, the conservative Justices had the opportunity to roll back private enforcement of the separation of church and state by dramatically narrowing taxpayer standing, first recognized in Flast v. Cohen. Only Justices Scalia and Thomas, though, took up the invitation to overrule the case, with Justice Alito writing for a plurality that reaffirmed such standing, though rejecting an extension of it in Hein v. Freedom from Religion Foundation.

Ultimately, these developments at the Court should not greatly surprise observers. The dynamic at the Court drives both ends of the spectrum to more moderate and centrist positions. First, there is the entrenched respect for precedent and stare decisis, which provides strong disincentives that cut against changing the law either quickly or frequently. Second, there is the fact that Justices would like to have five votes (at least) supporting their opinions. A certain amount of compromise and horse-trading must occur to obtain majorities with any regularity. Third, the precedents of today that will affect the cases of tomorrow are usually drafted to obtain the maximum number of votes possible. Extreme views are intentionally left out to draw fence-sitters into the majority's fold.

For these reasons, it is actually more remarkable that there has been a breakdown in the applicability of political labels in the political sphere, than that the same has occurred in the quiet, white marble building of the Supreme Court. Though the political (and media) sphere would like to oversimplify the Justices' world views and their decisions, in fact the institution's very character leads it to defy easy formulas.

On the Supreme Court and In the Political Sphere, the Simple Label "Conservative" Has Outlived Its Use

In sum, the political labels that had defined our world as recently as the 2004 election simply do not work well anymore. The 2008 election confirmed it, as it was plain that many Republicans had crossed party lines to give Obama a handy victory.

That situation, in turn, raises a pressing question: What happens when we no longer have reliable political labels, but we do have extraordinary problems? We are forced to search for solutions anywhere they might be, to talk to our former political enemies, and to honor good ideas whoever their source. I think that dynamic provides a good explanation of not only the election of Barack Obama, but also his obvious effort to choose the best person for each cabinet position, rather than the most politically doctrinaire. The Republicans, in contrast, had only promised more political line-drawing, with Gov. Palin making the colossal mistake of calling those who agreed with her "true Americans," with the clear implication that her opponents were traitorous, treasonous, or simply somehow disloyal. No statement was more unseemly or off-putting during her seemingly endless, but blessedly short and unsuccessful candidacy for Vice President. In contrast, Sen. Obama downplayed divisive issues of political identity repeatedly, including during his victory speech, when he spoke pointedly to those who did not vote for him and emphasized that he would be their President, too.

We must now face the fact that the United States is in a massive paradigm shift. The old labels don't fit, and the old approaches don't work. It is not only or simply that an African-American man has been elected President, as enormously promising as that is. Rather, the political distinctions we relied upon for years to talk about social, legal, and economic issues are now in shadow, and a new reality is emerging.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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