Atelier Amérique du Nord

David O’Brien (University of Virginia)

The Paradoxes and Crisis of Contemporary Conservatism in Politics and Law in the United States

I will address today what appears to me as the paradoxes and crisis of contemporary conservatism. First permit me to lay out what I take to be the principal tenets or hallmarks of conservatism in the United States. In doing so, I’m thinking of works that helped shape the post World War Two conservative movement in the United States, like that of Russell Kirk’s The Conservative Mind (1953), Clinton Rossiter’s Conservatism in America (1955), Michael Oakeshott’s Rationalism in Politics (1962), and the writings of the likes of William F. Buckley, T.S. Elliott, Irving Kristol, and columnist George Will, to name a few as in legal circles, the late Chief Justice Rehnquist, Judge Robert Bork, and Justices Antonin Scalia and Clarence Thomas.

By conservatism, I consider the following five tenets of hallmarks most prominent:

(1) epistemological scepticism or “intellectual modesty” – in other words, an embrace of doubt and distrust of reason (runs back to Burke and to notably Oakshott).
(2) secondly, and related, has been the association with and emphasis on religion, in opposition to reason, in the control of human behavior and institutions. The role of Evangelican Christians is also linked – groups like 1980s Moral Majority and in the 1990s and nows groups like Dobson’s Focus on the Family. All this reflected in political discourse and policies: Reagan’s calling the Soviet Union “an Evil Empire” and G W Bush’s “axis of evil” – Iraq, Iran, and South Korea – as well as his “faith-based initiatives” and support for governmental aid to religion.
(3) Third, and also closely related is alliance on tradition, prior politics, habits and accordingly a distrust of change and most certainly a disdain for governmentally sponsored programs of social change – and which have been increasingly derided as social experimentalism. See the opposition to the New Deal, the New Frontier and the Great Society.
(4) Fourth, a devotion to limited government and individual self-reliance. Actually, several components :

a)embrace of separation of powers and federalism. Traced to the Anti-Federalists during the Founding, the rugged individualism of late 19th century, and to opposition to Brown v. Board of Education (1957), Roe v. Wade (1973), and more recently Lawrence v. Texas (2004). Both separation of powers and federalism, of course, were designed to make political change difficult and to limit the power of the national government;
b)opposition to governmental regulations, embrace of laissez-faire capitalism, and free markets;
c)financial self-restraint in the national government;
d)in foreign affairs, isolationism, non-intervention, except when necessary for containment of the former Soviet Union

5) Fifth, and finally, a hallmark of contemporary conservatism has been opposition to the role of the federal judiciary, and specifically the Supreme Court’s rulings from Brown and the Warren Court’s due process and reapportionment revolutions in the 1960s to the abortion ruling in Roe v. Wade and more recently rulings striking down laws discriminating against homosexual and homosexual sodomy.

Nixon in 1968 campaigned against “judicial activism” and promise to appoint “strict constructions”; Reagan in 1980 and 1984 championed “ a jurisprudence of original intent” and George W. Bush’s vows in 2000 and 2004 elections to name judges like Justices Scalia and Thomas.

Now let me turn to the paradoxes of contemporary conservatism.

First, instead of philosophical scepticism, over the last 25 years there has been a rise of fundamentalism – Christian fundamentalism. No doubt, but instead moral certitude.
Recall that the New Christian Right was central to Reagan’s winning coalition in 1980 and 1984, and part of Bush’s election victories in 2000 and 2004; not to mention to its war against Democratic President Bill Clinton, or Bush’s dogged certitude about his foreign policy.

Second, the federal government has not shrunk, but expanded, contrary to traditional conservatism, most notably with the creation of the Department of Homeland Security. To be sure, the tragedy of 9/11 attacks dictated a national and international response. But, supporting “first responders” – state and local authorities – the Bush administration consolidated power and mandated directives for state and local government that run against federalism and state and local governance.
Not unrelated, recall that in the 1980s Reagan called the abolition of the Department of Education. By contrast, G.W. Bush pushed the “No Child Left Behind” law –establishing national standards for primary and secondary schools, and expanding the scope of the Department of Education. Another clear erosion of federalism, and contrary to traditional conservative principles.

Third, instead of financial restraint and after the balanced budget years of the Clinton administration, the Bush administration’s policies have run up enormous budgetary and trade deficits.

Fourth, in spite of the traditional position in foreign affairs – emphasizing isolationism and non-intervention, a position that figured in Bush’s 2000 presidential campaign, Bush, Cheney, and their neoconservative advisors have advanced a position of preventive war and exporting democracy and engaging in “national building” in Iraq and in the Middle East.

Fifth, in spite of the fact that each Republican in the last 35 years campaigned on the themes of “law and order”, “strict constructionism”, a jurisprudence of original intent, and judicial self-restraint, as well as appointed 11 of the 13 justices named to the Supreme Court during that period, there has been only a moderately conservative trend in the areas of
    (1)criminal justice and the rights of the accused
    (2)reinvigorating federalism and limiting congressional power
    (3)and in affirming more governmental aid to religion

On the other hand a supposedly conservative Court handed down Roe v. Wade and subsequent conservative Courts have not overturned that controversial decision on abortion. In addition, the Supreme Court, even with its more conservative composition, has become an even stauncher defender of the guarantee of free speech, for example, repeatedly striking down laws banning pornography on the internet and hate speech laws. Needless to say, New Christian Right conservatives have also been disillusioned by an ostensibly conservative Court’s striking down laws forbidding discrimination against homosexuals, and criminalizing homosexual sodomy.

Finally, I turn to the crisis of contemporary conservatism. If there were any doubt, the November 2006 elections underscore he crisis of at least the contemporary Republican conservatism. Admittedly, presidents usually lose support in midterm elections in their second term. But Bush lost majorities and control in both the House and Representatives and the Senate.
Then, there is the misadventure in the war in Iraq, which was the major factor in 2006 election. Notably, the bipartisan study commission’s report, released after the election, repudiated Bush’s handling of the war. No more stay the course was the main message, though Bush once again remains dogged and will not respond until after the new year.
Christian conservatives simply were not as mobilized as in 2000 and in 2004 or the 1980s elections. They too are disillusioned with the neocon’s foreign policy and with the staggering deficits and continued growth in the
federal government.

In conclusion, the fundamentalism of the contemporary conservatism is being called into question by traditional conservatives and that underscores the crisis of contemporary conservatism.
Among the books published this year, for example, criticizing contemporary conservatism in the United States is pundit Andrew Sullivan’s The Conservative Soul. But even more telling is John Danforth’s recent book. Danforth, a long time conservative, is a minister, former Republican senator, key sponsor of the nomination of Clarence Thomas to the Supreme Court, and former Bush ambassador to the United Nations. The point and the crisis is underscored, not only in the 2006 election, but in the title of Danforth’s book, Faith and Politics: How the “Moral Values” Debate Divides America.

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	David O’Brien (University of Virginia) The Paradoxes and Crisis of Contemporary Conservatism in Politics and Law in the United States Elements of bibliography I will address today what appears to me as the paradoxes and crisis of contemporary conservatism. First permit me to lay out what I take to be the principal tenets or hallmarks of conservatism in the United States. In doing so, I’m thinking of works that helped shape the post World War Two conservative movement in the United States, like that of Russell Kirk’s The Conservative Mind (1953), Clinton Rossiter’s Conservatism in America (1955), Michael Oakeshott’s Rationalism in Politics (1962), and the writings of the likes of William F. Buckley, T.S. Elliott, Irving Kristol, and columnist George Will, to name a few as in legal circles, the late Chief Justice Rehnquist, Judge Robert Bork, and Justices Antonin Scalia and Clarence Thomas. By conservatism, I consider the following five tenets of hallmarks most prominent: (1) epistemological scepticism or “intellectual modesty” – in other words, an embrace of doubt and distrust of reason (runs back to Burke and to notably Oakshott). (2) secondly, and related, has been the association with and emphasis on religion, in opposition to reason, in the control of human behavior and institutions. The role of Evangelican Christians is also linked – groups like 1980s Moral Majority and in the 1990s and nows groups like Dobson’s Focus on the Family. All this reflected in political discourse and policies: Reagan’s calling the Soviet Union “an Evil Empire” and G W Bush’s “axis of evil” – Iraq, Iran, and South Korea – as well as his “faith-based initiatives” and support for governmental aid to religion. (3) Third, and also closely related is alliance on tradition, prior politics, habits and accordingly a distrust of change and most certainly a disdain for governmentally sponsored programs of social change – and which have been increasingly derided as social experimentalism. See the opposition to the New Deal, the New Frontier and the Great Society. (4) Fourth, a devotion to limited government and individual self-reliance. Actually, several components : a)embrace of separation of powers and federalism. Traced to the Anti-Federalists during the Founding, the rugged individualism of late 19th century, and to opposition to Brown v. Board of Education (1957), Roe v. Wade (1973), and more recently Lawrence v. Texas (2004). Both separation of powers and federalism, of course, were designed to make political change difficult and to limit the power of the national government; b)opposition to governmental regulations, embrace of laissez-faire capitalism, and free markets; c)financial self-restraint in the national government; d)in foreign affairs, isolationism, non-intervention, except when necessary for containment of the former Soviet Union 5) Fifth, and finally, a hallmark of contemporary conservatism has been opposition to the role of the federal judiciary, and specifically the Supreme Court’s rulings from Brown and the Warren Court’s due process and reapportionment revolutions in the 1960s to the abortion ruling in Roe v. Wade and more recently rulings striking down laws discriminating against homosexual and homosexual sodomy. Nixon in 1968 campaigned against “judicial activism” and promise to appoint “strict constructions”; Reagan in 1980 and 1984 championed “ a jurisprudence of original intent” and George W. Bush’s vows in 2000 and 2004 elections to name judges like Justices Scalia and Thomas. Now let me turn to the paradoxes of contemporary conservatism. First, instead of philosophical scepticism, over the last 25 years there has been a rise of fundamentalism – Christian fundamentalism. No doubt, but instead moral certitude. Recall that the New Christian Right was central to Reagan’s winning coalition in 1980 and 1984, and part of Bush’s election victories in 2000 and 2004; not to mention to its war against Democratic President Bill Clinton, or Bush’s dogged certitude about his foreign policy. Second, the federal government has not shrunk, but expanded, contrary to traditional conservatism, most notably with the creation of the Department of Homeland Security. To be sure, the tragedy of 9/11 attacks dictated a national and international response. But, supporting “first responders” – state and local authorities – the Bush administration consolidated power and mandated directives for state and local government that run against federalism and state and local governance. Not unrelated, recall that in the 1980s Reagan called the abolition of the Department of Education. By contrast, G.W. Bush pushed the “No Child Left Behind” law –establishing national standards for primary and secondary schools, and expanding the scope of the Department of Education. Another clear erosion of federalism, and contrary to traditional conservative principles. Third, instead of financial restraint and after the balanced budget years of the Clinton administration, the Bush administration’s policies have run up enormous budgetary and trade deficits. Fourth, in spite of the traditional position in foreign affairs – emphasizing isolationism and non-intervention, a position that figured in Bush’s 2000 presidential campaign, Bush, Cheney, and their neoconservative advisors have advanced a position of preventive war and exporting democracy and engaging in “national building” in Iraq and in the Middle East. Fifth, in spite of the fact that each Republican in the last 35 years campaigned on the themes of “law and order”, “strict constructionism”, a jurisprudence of original intent, and judicial self-restraint, as well as appointed 11 of the 13 justices named to the Supreme Court during that period, there has been only a moderately conservative trend in the areas of (1)criminal justice and the rights of the accused (2)reinvigorating federalism and limiting congressional power (3)and in affirming more governmental aid to religion On the other hand a supposedly conservative Court handed down Roe v. Wade and subsequent conservative Courts have not overturned that controversial decision on abortion. In addition, the Supreme Court, even with its more conservative composition, has become an even stauncher defender of the guarantee of free speech, for example, repeatedly striking down laws banning pornography on the internet and hate speech laws. Needless to say, New Christian Right conservatives have also been disillusioned by an ostensibly conservative Court’s striking down laws forbidding discrimination against homosexuals, and criminalizing homosexual sodomy. Finally, I turn to the crisis of contemporary conservatism. If there were any doubt, the November 2006 elections underscore he crisis of at least the contemporary Republican conservatism. Admittedly, presidents usually lose support in midterm elections in their second term. But Bush lost majorities and control in both the House and Representatives and the Senate. Then, there is the misadventure in the war in Iraq, which was the major factor in 2006 election. Notably, the bipartisan study commission’s report, released after the election, repudiated Bush’s handling of the war. No more stay the course was the main message, though Bush once again remains dogged and will not respond until after the new year. Christian conservatives simply were not as mobilized as in 2000 and in 2004 or the 1980s elections. They too are disillusioned with the neocon’s foreign policy and with the staggering deficits and continued growth in the federal government. In conclusion, the fundamentalism of the contemporary conservatism is being called into question by traditional conservatives and that underscores the crisis of contemporary conservatism. Among the books published this year, for example, criticizing contemporary conservatism in the United States is pundit Andrew Sullivan’s The Conservative Soul. But even more telling is John Danforth’s recent book. Danforth, a long time conservative, is a minister, former Republican senator, key sponsor of the nomination of Clarence Thomas to the Supreme Court, and former Bush ambassador to the United Nations. The point and the crisis is underscored, not only in the 2006 election, but in the title of Danforth’s book, Faith and Politics: How the “Moral Values” Debate Divides America.
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