Progressive and Conservative Constitutionalism

Abstract

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is replacing, the new paradigm is overtly political - and overtly conservative - in its orientation and aspiration. Over the last few years, a substantial and growing number of Supreme Court Justices, federal judges, and some theorists, including Raoul Berger, Robert Bork, Frank Easterbrook, Michael McConnell, Sandra Day O'Connor, Richard Posner, and Antonin Scalia, have begun to articulate a profoundly conservative interpretation of the constitutional tradition. There are obviously many differences between the conservative views of each of these theorists. But there is also significant commonality: the conservatives share enough ground and sufficient themes that we can discern, without too much difficulty, an emerging conservative paradigm of constitutional interpretation - what this article calls "conservative constitutionalism." Conservative constitutionalism now dominates the Supreme Court, may soon dominate the federal judiciary, and has already profoundly shaped the constitutional law of the foreseeable future.

Keywords: Constitutional law, Constitutional interpretation, Supreme Court, Conservative constitutionalism

JEL Classification: K00, K10, K30, K40