Just Like The Liberals, Conservative Hero Judges Also Godless In Their Legal Philosophy
From an article titled “The Higher Law And ‘Original Intent’: The Challenge For Conservatism” by Charles R. Kesler, in the Spring 1987 “The Intercollegiate Review.” Kesler, at the time, was an Assistant Professor of Political Science and Associate Director of the Henry Salvatori Center at Claremont McKenna College. Making the point that supposedly different conservative judges are, in reality, no different from liberal judges in that both reject any notion of a higher law, Kesler says:
“The pity is that conservative jurists seem to have no substantial alternative to offer. Judge Robert Bork, for example, holds (in his American Enterprise Institute lecture, ‘Tradition and Morality in Constitutional Law’) that ‘our constitutional liberties arose out of historical experience…They do not rest upon any general theory,’ including, of course, natural or higher law theory. Chief Justice Rehnquist, in his renowned essay on ‘The Notion of a Living Constitution,’ argues that if a democratic society ‘adopts a constitution and incorporates in that constitution safeguards for individual liberty, those safeguards do indeed take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice but instead simply because they have been incorporated in a constitution by the people. Beyond the Constitution and the laws in our society, there is simply no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa.’
“There is, in other words, no right or wrong by nature, but only ‘a generalized moral rightness or goodness’ that arises simply because a majority agrees to incorporate certain social value judgments into a constitution.
“Whereas the doctrines of liberal jurists leave us with no defense against judicial supremacy or tyranny, the doctrines of the conservatives leave us with no defense—indeed, not even an argument—against majority tyranny. At the same time, paradoxically, they also undercut any moral argument for lawful majority rule; for if there is no rational basis for value judgments or judgments of conscience, why should the will of the majority be accepted as the rule? Because they are stronger? But it is often the case that a vehement minority is stronger than a quiescent majority; and besides, what kind of a moral or legal principle is the right of the stronger?
“Sad to say, but these conservative jurists are only a part of a larger problem within the conservative intellectual movement in America. The return to a ‘jurisprudence of original intent’—like the genuine grounding of conservatism in the American political tradition—remains unconsummated, because it is perplexed by what it finds in the writings and speeches of the American founders. One will not find many leaders of the conservative intellectual movement ready to affirm that ‘We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights….’ And that is the nub of the problem. Our forefathers did not radically separate ‘facts’ and ‘values,’ did not place their faith in the ‘facts’ of progress as over against the subjective ‘values’ of morality, did not try to wrap the dictates of history up in the guise of the dictates of prudence.
“On the bicentennial of the U.S. Constitution, no approach to the original intentions of the founders is conceivable—hence no authentic American conservatism is possible— without realizing that for them, the facts of human life implied the rights of man, and man’s natural rights in turn served as a standard to which the facts of political life had, gradually, prudently, democratically to be conformed. The ‘is’ implied the ‘ought,’ and the ‘ought’ was meant to guide the ‘is’ to the fulfillment of its proper character or purpose. That was, and is, the meaning of the natural or higher law in the American political tradition. Recovering that meaning is the great intellectual and political challenge confronting conservatism in the Constitution’s third century.”
