Varieties of American Conservatism
Discover the intellectual roots of modern conservatism.
When Justice Brett Kavanaugh took the bench in October 2018, it marked the culmination of the Republican Party’s decades-long quest to secure a conservative majority on the Supreme Court.
How will the new majority affect constitutional law? Justice Kavanaugh’s confirmation brings to the forefront divisions within the conservative legal movement that have existed for decades. In this course, students will explore the debates and disagreements among conservatives and libertarians over how to best understand the Constitution generally and the judicial power specifically. We will consider debates over originalism, natural law, traditionalism, and the burgeoning debate between advocates of “judicial restraint” and advocates of “judicial engagement.” To that end, we will read not just modern authors but also their historical antecedents.
This course will consist of two sessions per day over a one-week period. Each morning, students will participate in seminar discussion led by legal expert Adam White. Each afternoon, they will hear from a leading scholar or practitioner on that individual’s area of expertise. Past guest speakers have included Hadley Arkes (James Wilson Institute), Randy Barnett (Georgetown Law School), Alan Gura (Gura PLLC), Carrie Severino (Judicial Crisis Network), and Ed Whelan (Ethics and Public Policy Center), among others.
Image courtesy The White House
Adam J. White on the conservative legal movement
This one-week course will take place in Washington, DC. It is a full-time commitment for Monday–Friday, with required sessions in the morning, afternoon, and some evenings.
Faculty
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Mr. White practiced constitutional and administrative law, particularly in the regulation of energy and financial markets. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit.
Mr. White has testified often before Congress, including before the Senate’s Committees on the Judiciary; Commerce, Science, and Transportation; and Homeland Security and Governmental Affairs and before the House’s Judiciary and Financial Services Committees. In 2018, the Senate Committee on the Judiciary called him to testify in Brett Kavanaugh’s Supreme Court confirmation hearings to advise senators on Kavanaugh’s approach to administrative law.
In 2021, he served on the Presidential Commission on the Supreme Court of the United States, where he criticized “Court packing” and other efforts to restructure the Supreme Court. In 2017, he was appointed to serve on the Administrative Conference of the United States. He also serves on the leadership council for the American Bar Association’s Administrative Law and Regulatory Practice Section, which he will chair in 2023–24. Before joining AEI, he was a research fellow at Stanford University’s Hoover Institution and an adjunct fellow at the Manhattan Institute.
Mr. White has a JD from Harvard Law School and a bachelor of business administration from the College of Business at the University of Iowa.
Download the Full Syllabus
Preview the Syllabus by Week/Session
Constitutional Courts: Foundational Debates
Recommended Reading:
To learn more about other important figures in constitutional law, we encourage you to visit ContemporaryThinkers.org, a website covering the ideas and influence of pioneering intellectuals of the twentieth and twenty-first centuries. Sponsored by the Hertog Foundation, ContemporaryThinkers.org includes sites devoted to Walter Berns, Martin Diamond, Herbert Storing, and many others.
Readings:
- Brutus 15
- Federalist 78 (Hamilton)
- Federalist 37 (Madison)
- Federalist 51 (Madison)
- Tocqueville, Democracy in America (excerpts)
- Gibbons v. Ogden (1824)
Discussion Questions:
- What is the nature and character of judicial power, according to Brutus? To Publius? To Tocqueville?
- Why does Publius believe that the judiciary is the “least dangerous branch?” What assumptions (e.g., about the branches of government, law as a profession, human nature, etc.) are reflected in this argument?
- Is judicial independence a constitutional virtue or a constitutional vice?
- In a constitutional government based on popular sovereignty, how much power should we commit to the countermajoritarian body of judges and lawyers?
- To what extent do Brutus’s, Publius’s, and Tocqueville’s account of the judicial power presume certain qualities among the judges themselves?
Liberty and “Judicial Restraint”
Readings:
- Pierce v. Society of Sisters (1925)
- Lochner v. New York (1905)
- Buck v. Bell (1927)
- Griswold v. Connecticut (1965)
- Eisenstadt v. Baird (1972)
- Alexander Bickel, “Notes on the Constitution” (1975)
- William Rehnquist, “The Notion of a Living Constitution” (1976)
Discussion Questions:
- What is judicial restraint? How is it opposed to judicial activism?
- In deciding cases and controversies, how should judges go about exercising “merely judgment?” Is judicial restraint an answer to this problem?
- What is the “counter-majoritarian difficulty” facing judges? Why might judicial review have a tendency to “weaken the democratic process” over time?
- How much deference should judges give to Congress? To the will of the majority?
Conservative “Originalism”
Readings:
- Edwin Meese, “Speech Before the ABA” (1985)
- Antonin Scalia, “Originalism: The Lesser Evil” (1989)
- Antonin Scalia dissenting, Planned Parenthood v. Casey (1992)
- Harvey Wilkinson, “Originalism: Activism Masquerading as Restraint” (2012)
Discussion Questions:
- What is originalism, according to Meese and Scalia? How is original intent different from original meaning?
- What were modern originalism’s early proponents trying to accomplish? Does originalism accomplish it?
- How can the Constitution’s objective original meaning be ascertained and applied by judges? What should judges do when that meaning is not readily apparent—and, more important, how can they know when they’ve arrived upon such an ambiguous case?
- Why does Scalia call originalism “the lesser evil”?
- Is Wilkinson correct in arguing that originalism does not actually promote judicial restraint?
Libertarian “Judicial Engagement”
Readings:
- Randy Barnett, “Scalia’s Infidelity” (2006)
- Debate: “Scalia v. Epstein” (1985)
- Clarence Thomas, “Toward a ‘Plain Reading’ of the Constitution: The Declaration of Independence in Constitutional Interpretation” (1987)
- Clarence Thomas, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment” (1989)
- Hadley Arkes, “A Natural Law Manifesto” (2011)
Discussion Questions:
- What is judicial engagement? How is it different from judicial restraint or judicial activism?
- What is judicial engagement’s relationship to originalism?
- How strongly bound should judges be to the doctrine of stare decisis?
- Should judges read the Constitution in light of natural rights theory or the natural law principles of the Declaration of Independence? Does such an approach constrain or empower judges?
- How should conservative jurists balance their devotion to a law’s original public meaning with other conservative principles in judicial decision-making (e.g., precedent, federalism, popular rule, etc.)?
- What do Barnett’s, Thomas’s, and Arkes’s respective approaches share in common? In what ways do they disagree with one another?
“Republican Remedies”
Readings:
- Abraham Lincoln, First Inaugural Address (1861)
- Thomas W. Merrill, “Bork v. Burke” (1995)
- Employment Division v. Smith (1990)
- Yuval Levin, “Taking the Long Way” (2014)
- Mary Ann Glendon, “The Land of Rights” (1991)
- Alexander Bickel, “Watergate and the Legal Order” (1974)
Discussion Questions:
- What is conventionalism? Why should conservatives prefer conventionalism, according to Merrill?
- What is the “conservative idea of liberty,” according to Levin?
- How much deference should judges give to states and local communities? To practical experience and tradition?
- To what extent does the legitimacy of a democratic government rest on the consent of the people, and to what extent does it rest on the correctness of its principles?
