An Intellectual History of Modern Legal Conservatism

The historian Johnathan O’Neill is the author of one of the best treatments of the history of originalism in law and politics in the 20th century. Here he is with a new, somewhat broader book on similar themes that looks more like an intellectual history and well worth picking up: Conservative Thought and American Constitutionalism Since the New Deal (Johns Hopkins Press).

The New Deal fundamentally changed the institutions of American constitutional government and, in turn, the relationship of Americans to their government. Johnathan O’Neill’s Conservative Thought and American Constitutionalism since the New Deal examines how various types of conservative thinkers responded to this significant turning point in the second half of the twentieth century.

O’Neill identifies four fundamental transformations engendered by the New Deal: the rise of the administrative state, the erosion of federalism, the ascendance of the modern presidency, and the development of modern judicial review. He then considers how various schools of conservative thought (traditionalists, neoconservatives, libertarians, Straussians) responded to these major changes in American politics and culture. Conservatives frequently argued among themselves, and their responses to the New Deal ranged from adaptation to condemnation to political mobilization.

Ultimately, the New Deal pulled American governance and society permanently leftward. Although some of the New Deal’s liberal gains have been eroded, a true conservative counterrevolution was never, O’Neill argues, a realistic possibility. He concludes with a plea for conservative thinkers to seriously reconsider the role of Congress—a body that is relatively ignored by conservative intellectuals in favor of the courts and the presidency—in America’s constitutional order. Conservative Thought and American Constitutionalism since the New Deal explores the scope and significance of conservative constitutional analysis amid the broader field of American political thought.

Eliot’s Prose Works

“We can never, I mean wholly, explain the practical world from a theoretical point of view, because this world is what it is by reason of the practical point of view, and the world we try to explain is a world set out upon a table — there!”

Knowledge and Experience in the Philosophy of F.H. Bradley

“Some one said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”

Tradition and the Individual Talent

Just a couple of lines from two of T.S. Eliot’s essays, the second comparatively well-known and the first less so. Eliot’s prose work has been an important influence in some recent law and religion scholarship, including Steve Smith’s “Pagans and Christians in the City,” as well as in some recent reflections on politics and populism. It has also provoked forceful reactions and objections. Eliot’s prose, however, has been less carefully studied than his poems.

This new compilation in 8 volumes, therefore, is well worth looking at (I am celebrating a birthday soon, just in case anybody is thinking of giving me a $700 gift) and sure to stimulate many responses: The Complete Prose of T.S. Eliot: The Critical Edition (Johns Hopkins Press), edited by Ronald Schuchard.

This monumental eight-volume edition of modern literature brings together, for the first time in print, all of the vastly influential prose writings of Nobel laureate T. S. Eliot, the poet and dramatist whose theories and criticism shaped twentieth-century thought and literature around the world. This complete collection provides access to over 6,000 pages of Eliot’s nonfiction prose writings on literature, philosophy, religion, cultural theory, world politics, and other topics of urgent and enduring import. It includes all of the essays that he collected in his lifetime, but also more than 1,000 uncollected, unrecorded, or unpublished items, many of which were missing or inaccessible for decades. From the formative “Interpretation of Primitive Ritual” (1913), written in graduate school at Harvard, to the summative “To Criticize the Critic” (1961), the Complete Prose offers readers full access to the immense scope and variety of Eliot’s works in their biographical, historical, and cultural context.

The individual volumes have received the highest praise from prominent scholars: volume II won the Modernist Studies Association’s 2015 Book Prize for an Edition, Anthology, or Essay Collection, while volumes V and VI were jointly awarded the 2017 Prize for a Scholarly Edition by the Modern Language Association. They display “uniform excellence,” wrote the Awards Committee: “Their thorough textual introductions, sophisticated annotations merging intelligent commentary with brevity and completeness, make the volumes a pleasure to read… and enlarge our understanding of Eliot as the public intellectual at work.” Together with recent editions of the Poems, the eight volumes of Letters, and the sensational opening in 2020 of Eliot’s letters to Emily Hale, the Complete Prose brings us to the threshold of a new age for the study of Eliot and the modernist writers of his day.

Freedom in the Classical and Christian Traditions

When I taught my Jurisprudence course last spring, one of the many striking moments was in reading Aristotle’s discussion of freedom in The Politics with my students. Toward the end of Book V, Chapter 9 (1309a33-1310a38), Aristotle says that two criteria are generally countenanced for judging the efficacy of democratic regimes: the sovereignty of the majority and freedom. In democracies, he writes, “freedom is seen in terms of doing what one wants.” But this conception of freedom is a pathology of democracy for Aristotle. To focus entirely on the state as a coercive power, a force that demands obedience, and to ask why we should obey, is to look at only one aspect of politics. Citizenship is not just about being ruled, but about ruling well and about being ruled well. Freedom, like the accumulation of wealth, is not the purpose of politics. I tell my students that Aristotle could never endorse the view, stated by a famous American president, that the business of America is business. Freedom, wealth, property—these exist for the sake of virtue, in Aristotle’s account, not virtue for the sake of them.

A new book by the political theorist, D.C. Schindler, looks like a superb new intellectual and political history of classical conceptions of freedom, as adopted and modified by various figures (some of whom I confess not to have known about) in the Christian tradition: Retrieving Freedom: The Christian Appropriation of Classical Tradition (Notre Dame Press).

Retrieving Freedom is a provocative, big-picture book, taking a long view of the “rise and fall” of the classical understanding of freedom.

In response to the evident shortcomings of the notion of freedom that dominates contemporary discourse, Retrieving Freedom seeks to return to the sources of the Western tradition to recover a more adequate understanding. This book begins by setting forth the ancient Greek conception—summarized from the conclusion of D. C. Schindler’s previous tour de force of political and moral reasoning, Freedom from Reality—and the ancient Hebrew conception, arguing that at the heart of the Christian vision of humanity is a novel synthesis of the apparently opposed views of the Greeks and Jews. This synthesis is then taken as a measure that guides an in-depth exploration of landmark figures framing the history of the Christian appropriation of the classical tradition. Schindler conducts his investigation through five different historical periods, focusing in each case on a polarity, a pair of figures who represent the spectrum of views from that time: Plotinus and Augustine from late antiquity, Dionysius the Areopagite and Maximus the Confessor from the patristic period, Anselm and Bernard from the early middle ages, Bonaventure and Aquinas from the high middle ages, and, finally, Godfrey of Fontaines and John Duns Scotus from the late middle ages. In the end, we rediscover dimensions of freedom that have gone missing in contemporary discourse, and thereby identify tasks that remain to be accomplished. Schindler’s masterful study will interest philosophers, political theorists, and students and scholars of intellectual history, especially those who seek an alternative to contemporary philosophical understandings of freedom.

Smith on Liberalism and Hate Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Steven D. Smith (University of San Diego School of Law) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

What is the relation between liberalism and the regulation of–or, conversely, the legal protection of–“hate speech”? And what if anything does the problem of hate speech tell us about liberalism?


Hate speech is pretty much by definition vicious and hurtful, and a legal regime without “liberal” aspirations might have no prima facie reason to respect or protect it (assuming that it could be adequately defined). Conversely, a liberal government might extend constitutional protection to hate speech–for pragmatic reasons (slippery slope concerns, for example, or worries about overbreadth) but also for more principled reasons. More specifically, liberalism implies that people should have the freedom to do and say things that are objectionable or wrongful so long as they cause no harm to others.

“Harm,” to be sure, turns out to be a complicated–and often conclusory or question-begging–notion. Suppose Puritan is profoundly disturbed by his neighbor Pru’s practice of watching prurient movies in her basement. Puritan’s emotional distress may be real enough. And emotional distress is unpleasant; in other contexts it can constitute a compensable injury. But under liberalism, Puritan’s emotional distress in this context will not count as “harm”–or at least not as the cognizable harm that can justify a restriction on Pru’s liberty. Why not? We will say that Pru’s practice cannot be restricted because it causes no harm, but what we mean is that Puritan’s very real pain cannot count as harm here because (we know in advance) Pru’s liberty should not be restricted. We will express this foreordained conclusion by saying that Puritan’s “offense” or “hurt feelings” do not amount to cognizable “harm.”

But offense and hurt feelings are exactly the kinds of harm–or rather of non-harmful “hurts”–produced by hate speech (unless, that is, such speech goes beyond mere hatefulness by, for example, inciting listeners to violence). Or so it may seem. And on this view, there is no justification for regulating people’s ability to express themselves hatefully, no matter how worthless such speech may be.

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Lugato on the International Legal Framework for Hate Speech and Its Limits

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.

2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).

The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.

3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.

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The Terror of “the Rights of Man”

A new book, Robespierre: The Man Who Divides Us the Most (Princeton UP), by the French historian, Marcel Gauchet, looks very interesting in connecting the light side of the revolutionary leader (the ardent and uncompromising crusader for human rights) with the dark features of his zealous commitment in the coming of the Terror. They were two sides of the same coin, in this telling, it seems. Interestingly, the blurb below suggests that it is part of the author’s thesis that the transition occurred at the point where governing, rather than revolutionizing, became necessary.

Maximilien Robespierre (1758–1794) is arguably the most controversial and contradictory figure of the French Revolution, inspiring passionate debate like no other protagonist of those dramatic and violent events. The fervor of those who defend Robespierre the “Incorruptible,” who championed the rights of the people, is met with revulsion by those who condemn him as the bloodthirsty tyrant who sent people to the guillotine. Marcel Gauchet argues that he was both, embodying the glorious achievement of liberty as well as the excesses that culminated in the Terror.

In much the same way that 1789 and 1793 symbolize the two opposing faces of the French Revolution, Robespierre’s contradictions were the contradictions of the revolution itself. Robespierre was its purest incarnation, neither the defender of liberty who fell victim to the corrupting influence of power nor the tyrant who betrayed the principles of the revolution. Gauchet shows how Robespierre’s personal transition from opposition to governance was itself an expression of the tragedy inherent in a revolution whose own prophetic ideals were impossible to implement.

This panoramic book tells the story of how the man most associated with the founding of modern French democracy was also the first tyrant of that democracy, and it offers vital lessons for all democracies about the perpetual danger of tyranny.

Obedience and Freedom

It’s probably fair to say that most people today regard obedience and freedom as antonyms, and that obedience is regarded as the bad side of that duality. We might even say that we are free just insofar as we obey no one, except perhaps ourselves or our own will. Going further, obedience seems like the kind of orientation to the world that depends upon there being unquestionably rightful authority, but perhaps we don’t regard authority, any authority, in that way any longer–as having unquestionably right claims on us. Sometimes obedience is thought to be a kind of mindless servility or rote submission, though older conceptions of obedience incorporated an important element of free choice. Is it then not obedience if one chooses to submit oneself to the authority whom one obeys? Again, that position would assume that choice and obedience are necessarily antagonists, but the structures of authority to which one might voluntarily submit oneself might actually make one more free to achieve certain objectives than one would be without the submission (think here of the structures of excellence in sports or writing or some other practice).

Ok, enough already. I raise all this in light of an interesting new book by Jacob Phillips, Obedience is Freedom (Polity Press). The abstract is below, and here is an interesting review of the book that came out a few months back.

The virtue of obedience is seen as outdated today, if not downright toxic – and yet, are we any freer than our forebears?

In this provocative work, Jacob Phillips argues not. Many feel unable to speak freely, their opinions policed by the implicit or explicit threat of coercion. Impending ecological disaster is the ultimate threat to our freedoms and wellbeing, and living in a disenchanted cosmos leaves people enslaved to nihilistic whim. Phillips shows that the antiquated notion of obedience to the moral law contains forgotten dimensions, which can be a source of freedom from these contemporary fetters. These dimensions of obedience – such as loyalty, discipline and order – protect people from falling prey to the subtle forms of coercion, control and domination of twenty-first-century life.

Fusing literary insight with philosophical discussion and cultural critique, Phillips demonstrates that in obedience lies the path to true freedom.

Walsh on Juridical Post-liberalism and Ius

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.

I. Overcoming liberalism through transformation from within the juridical domain

When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?

To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]

From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]

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Pojanowski on Authenticity and Free Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Jeffrey Pojanowski (Notre Dame) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Consider two very different works of art. The first is the 1943 Norman Rockwell painting, Freedom of Speech. There, a workman in a New England town hall stands resolute amid his nattier neighbors, preparing to say his piece. The painting’s model was the Arlington, Vermont farmer, Jim Edgerton, the sole dissenter to the town selectmen’s decision to build a new school. This painting, one in a series commemorating Roosevelt’s “Four Freedoms,” links freedom of speech with republican self-governance, deliberation about a shared good, and an idea of equality that elevates the dignity of the common man to the plane of his more aristocratic fellow citizens. Edgerton’s mien is reminiscent of Lincoln.

The second is a 2002 Joseph Frederick banner, 14-feet-long and emblazoned with the message “BONG HiTS 4 JESUS.” This banner, which the Juneau, Alaska high school senior created just before he displayed it at an Olympic torch parade, was, in the words of its creator, “just nonsense meant to attract television cameras.” The Supreme Court of the United States explained that this message, displayed at a school-sponsored event, could be reasonably understood as advocating illegal drug use, but it was “plainly not a case about political debate over the criminalization of drug use or possession.” Over a vigorous dissent, the Court held that the First Amendment did not prohibit Frederick’s school from disciplining Frederick. Frederick’s claim links free speech with a bare right of self-expression, even if the message that the autonomous self seeks to assert is admittedly “nonsense.” Frederick is reminiscent of Cartman.

Frederick could be forgiven for thinking he could prevail, which he did before the Court of Appeals. The Supreme Court has interpreted the First Amendment as protecting lying about military honors, virtual child pornography, and crush films (don’t google the term). Now, this protective agnosticism in the Court’s doctrine need not reflect a deep skepticism about truth or beauty; it could flow from a sincere interpretation of the Constitution’s positive-law strictures or reflect prudential worries about empowering government to limit speech. There are many threads in American free speech jurisprudence and culture. Even so, one of the more vibrant ones is the notion that expression is good for its own sake, is self-constituting, and that interferences with, or even judgments about, such autonomous expression in the name of standards outside the self are unjustified and tyrannical.

This thread in jurisprudence and culture has given rise to powerful post-liberal critiques of free speech. Neutrality, the argument goes, is impossible because it presupposes this postmodern celebration of standard-less self-assertion and substantively demands its enforcement through law and culture. Alternatively, even if it does not share such premises, it is no defense against that worldview’s imperialistic designs. To invoke Fr. Richard John Neuhaus’s “law”: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.” This debate about the compatibility of liberal legal forms like free speech protections and non-liberal culture is challenging, fascinating, and important, and I am hesitant to claim I have anything important to add, especially through short-form scholarship. Rather, I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism. (A caveat: I am operating here primarily at the level of normative argument, not legal doctrine. I don’t claim, and am not qualified to claim, to offer an argument about the best reading of the First Amendment and/or its subsequent implementing doctrines.)

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Ekins on Some Features of Liberalism in a Censorious Age

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction. 

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