The Journal of Contemporary Legal Issues


The conservative phenomenon in the United States in the years since the Second World War has entailed—I hesitate to say “embraced”—a variety of diverging views, preoccupations, and commitments, some of them at least in tension with, if not actually opposed to, one another. This has been true for conservative writers, thinkers, and publicists; it has also been true for America’s conservative voting constituencies. For many decades, conservatives were often said to be subdivided between traditionalists and libertarians. There were (and are) diverging tendencies even among the traditionalists: these tendencies can be religious or secular, with styles and emphases that diverge even between various Christian and Jewish religious denominations; and then there were southern agrarians; or Russell Kirk-like Burkeans; Taft-like semi-isolationists, or anti-Communist interventionists —these were (and are) just a few of the possibilities. There were even (and may still be) rare sightings of quasi-European throne-and-altar conservatism: ironic or perhaps not-entirely-ironic salutes to Charles the First, King and Martyr, from the Party of the Right at Yale.

More recently, there is a divergence between advocates of “common good conservatism” and those they disparage as individualists, libertarians, or—especially in the legal and constitutional contexts—“positivists”. Common good conservatives themselves subdivide, for example between those who reject constitutional (or statutory) “originalism” (e.g. Adrian Vermeule) and “common good originalists” (e.g. Josh Hammer). The divergence between today’s common good conservatives and those they criticize echoes in part, but only in part, an older divergence between “communitarians” (some but not all of them conservatives) and “individualists”.

There has been another important divergence within the conservative sphere, at least since the Second World War, over the proper place of principle in politics and law. How devoted to principle ought American politics and adjudication to be?





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Lawrence Alexander & Steven D. Smith

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