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Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation Ernest Young

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Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation Ernest Young NORTH CAROLINA LAW REVIEW Volume 72 | Number 3 Article 4 3-1-1994 Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation Ernest Young Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994). Available at: http://scholarship.law.unc.edu/nclr/vol72/iss3/4 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. REDISCOVERING CONSERVATISM: BURKEAN POLITICAL THEORY AND CONSTITUTIONAL INTERPRETATION ERNEST YOUNG* Recent decisions of the Rehnquist Court-particularlythe Court's 1992 decision in Planned Parenthood v. Casey-have caused many to question widely-held assumptions about the meaning of judicial conservatism. In this Article, Ernest Young argues that the views of modern judicial "conservatives" such as Judge Robert Bork and Justice Antonin Scalia are antitheticalto classicalconservative political theory, as exemplified by the writ- ings and speeches of the eighteenth-century British philosopher! politician Edmund Burke. In particular,Mr. Young argues that strict adherence to the originalunderstanding of the Constitution, judicial deference to democratic majorities, and formulation of legal directives as bright-line rules are all inconsistent with class- ical conservatism. Instead, Mr. Young advocates an approach to constitutional interpretationinspired by Burke's emphasis on tra- dition and evolutionary reform. Moreover, Mr. Young speculates that it is precisely this "common-law constitutionalism" that may be driving the emerging center of today's Supreme Court. TABLE OF CONTENTS I. MODERN CONSERVATIVE JURISPRUDENCE ................... 625 A. Originalism ........................................... 627 B. Judicial Restraint...................................... 634 C. Rules over Standards .................................. 637 II. THE CONSERVATIVE PHILOSOPHY OF EDMUND BURKE ........ 642 A. Human Reason and the Rejection of Abstract Theory .... 644 B. Tradition and Prescriptive Wisdom ..................... 648 C. The Organic Social Contract........................... 650 D. The Possibility of Evolutionary Change ................. 653 E. The Natural Aristocracy ............................... 656 * B.A. 1990, Dartmouth College; J.D. 1993, Harvard Law School. The author is currently a law clerk for the United States Court of Appeals for the First Circuit. I would like to thank Doug Driemeier, Richard Fallon, Charles Fried, Marc Goldman, Jennifer Olsson, Laurence Tribe, Adrian Vermeule, and Jonathan Zasloff for reading and commenting on earlier versions of this Article. I am also profoundly indebted to Vincent Starzinger for introducing me to the thought of Edmund Burke. NORTH CAROLINA LAW REVIEW [Vol. 72 III. MODERN CONSERVATIVE CONSTITUTIONALISM THROUGH BURIEAN EYES ........................................... 659 A. The Dilemma of American Conservatism................ 660 B. Originalism ........................................... 664 C. Judicial Restraint...................................... 674 D. Rules and Standards................................... 681 IV. TOWARD A BURKEAN APPROACH TO CONSTITUTIONAL INTERPRETATION ........................................... 686 A. Common-Law Constitutionalism........................ 688 B. In Defense of Tradition ................................ 697 1. W hich Tradition? ...... ............................ 698 2. Bad Traditions ..................................... 701 3. Is Tradition Undemocratic? Or Is It Too Democratic? ........ ............................... 706 4. The Need for Innovation ........................... 708 C. The Owl of Minerva ................................... 712 V. EPILOGUE: THE UNSURPRISING "PHENOMENON OF SURPRISING M ODERATION" ............................................ 715 Conservative constitutional theory might be interesting, but it isn't. -Mark Tushnet' Until very recently, few would have questioned that conservative juris- prudence is ascendant in this country, at least outside of legal academia. Professor Robin West, for example, observed in 1990 that "[c]onservative constitutionalism now dominates the Supreme Court, may soon dominate the federal judiciary, and has already profoundly shaped the constitutional law of the foreseeable future."2 The Court's 1991 and 1992 Terms, how- ever, have led some to doubt whether the five Reagan-Bush appointments to the Court have created a monolithic conservative block. Professor Kath- leen Sullivan, for example, observed that "the Supreme Court did not unveil a full-tilt conservative revolution [in the 1991] Term," and that although "the Court continued to veer sharply to the right" in some respects, "[iln other areas.., the Court showed surprising moderation."3 Writing from a perspective substantially to the right of Professor Sullivan, Professor Lino Graglia demanded to know "[h]ow ... a Court that in its [1991] term reaffirmed ...a constitutional right to an abortion, disallowed nonsectarian 1. Mark Tushnet, Conservative Constitutional Theory, 59 TutL. L. Rav. 910, 927 (1985). 2. Robin West, Progressive and Conservative Constitutionalism,88 MicH. L. Rav. 641, 642 (1990). 3. Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARv. L. REv. 22, 24 (1992). 1994] CONSERVATIVE CONSTITUTIONALISM prayer at a high school graduation ceremony, and continued to discover new limitations on capital punishment and new protections for the crimi- nally accused [can] possibly be considered . conservative?"' And although the 1992 Term lacked a defining moment comparable to Planned Parenthoodv. Casey and, on the whole, produced rather ambiguous results, the one thing that does seem clear is that the predicted conservative revolu- tion never arrived. The reason that those who anticipated a conservative apocalypse are now scrambling for explanations is that those observers never really stopped to consider what made the new constitutionalism "conservative." Instead, virtually all participants in the debate have defined "conservatism" operationally, as whatever jurisprudence is advocated by judges, academics, and politicians generally considered to be on the rightward end of the polit- ical spectrum.5 This is even true of those who now criticize our new, more complicated Court from the right. A recent article by Professor Graglia, for example, never defines "conservatives" in any more meaningful way than "those likely to be opposed to the ACLU on every issue."' Such sweeping categorizations ignore differences that divide "conservative" justices from each other as sharply as those that separate them from their more liberal counterparts; as Professor Michael Paulsen points out, "there are deep rifts beneath the surface of an apparently 'conservative' Court, rifts that erupt occasionally into earthquakes along legal conservatism's ideological fault lines."7 Although these rifts have been characterized by different commen- tators in a number of ways," virtually all observers share the belief that the various positions on the Court, with the obvious exceptions of those of Jus- 4. Lino A. Graglia, A Conservative Court? No, 1993 Pua. INT. L. REV. 147, 147. 5. Professor West's article is an excellent example. In her twenty-six page description of the "conservative constitutional paradigm," see West, supra note 2, at 651-77, Professor West does not cite to any representatives of conservatism outside the group of modem legal academics and judges whom she is analyzing. Hence, although Professor West presents an interesting analy- sis of the group she defines as "conservative," she ignores the logically prior question of whether that group is really conservative at all. Cf. James G. Wilson, Justice Diffused: A Comparisonof Edmund Burke's Conservatism with the Views of Five Conservative, Academic Judges, 40 U. MIAMI L. Pav. 913, 913 (1986) (comparing the views of Judges Bork, Easterbrook, Posner, Scalia, and Winter with traditional Burkean conservatism). 6. Graglia, supra note 4, at 149. Although Professor Graglia generally seems to be using "conservatism" as the opposite of judicial activism, he also makes clear that activism may be used for "conservative" purposes as well. See id. at 149-5i, 158-59. However, he never provides any general definition of what would constitute such a purpose. 7. Michael S. Paulsen, The Many Faces of "JudicialRestraint," 1993 Put. Irr. L. REv. 3, 3. 8. See id. at 4 (arguing that the conflict is among five different sources of authority-text, original intentions, Congress and the Executive, state governments, and judicial precedent-to which advocates of "judicial restraint" might defer); Christopher H. Schroeder, A Conservative Court? Yes, 1993 PuB. INT.L. REv. 127, 130-46 (characterizing the divisions as between "judicial role" conservatism, "ideological" conservatism, and "dispositional" conservatism); Sullivan, NORTH CAROLINA LAW REVIEW [Vol. 72 tices Stevens, Blackmun, and (perhaps) Ginsburg, can be accommodated under the "conservative" umbrella.9 This consensus, however, fails to take conservatism seriously as a co- herent ideology rather than a simple devotion to the status quo. Conserva- tism, I will argue,
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