The data previously discussed about the conservatism of the Robert’s Supreme Court being the most conservative since the 1930s has been studied and documented in terms of actual decisions and ideological bent of the justices. Anyone that would doubt this should address their concerns to the studies and we can debate them but not to me personally as I am simply conveying the facts.

I think one important problem that comes into play in this discussion concerns the question, what is a conservative? The only way to really address this is to clarify our terms from a historical perspective. In particular, the words ‘conservative’ and ‘liberal’ have undergone some rather substantial modifications in recent times. When the Supreme Court rules on cases it codifies not only constitutional concerns but also historical, hermeneutic concerns we call precedence. In other words, the court must inevitably interpret and codify the founding documents of the country from these considerations:

1. the changing, historical challenge which results from shifting vernacular semantics
2. the need for further detail
3. the need address issues never explicitly formulated by the Country’s founders as illustrated by Amendments to the Constitution and their ramifications

The Supreme Court does not act in a hermeneutic and historical vacuum. In order to understand what a conservative Supreme Court would be, it is important to get some historical perspective on conservatism and liberalism. This discussion makes no attempt to discuss what ‘liberal’ or ‘conservative’ mean for the studies themselves, that is already defined in the perspective studies, but only historical considerations which should come into play when contemplating these concepts.

The Liberal and Conservative Tradition

Traditionally, the liberal tradition since the democracy of Athens was a liberation from oppressive and entrenched social, religious and governmental power structures. This is not to suggest that ancient Greece got this right from a modern perspective, only that the beginnings of these historical notions can be found from these early sources. The word ‘liberal’ comes from an ancient Greek word eliferos. It means to free or liberate. From this root we get the words liberty, liberal, liberate, liberation, liberator, liberally, liberality, liberalist, liberalize, libertinism, libertine, libertarian.¹ Liberation and freedom assume liberation from something or a freedom to something. Traditionally, this came to be thought as liberation from oppressive forms of government, ethnocentrism, misogyny, slavery, and economics. It was also thought in terms of human nature as liberation from vice, sin and selfishness. However, even in this case, socially organized, centralized power structures such as religion or secular law were typically already set up and present with the reckoned plight of the inflicted individual. Thus, in this case, liberation from an individual’s human nature was generally already entangled in a centralized secular or religious hierarchy which historically did encroach on individual liberties or freedoms (i.e., according to the Reformation’s critique of Catholicism). A historical notion that emerged from liberalism is the idea of equality. In the Declaration of Independence Thomas Jefferson in his immortal declaration declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

What and how this equality gets worked out remains controversial to this day. However, from Jefferson’s explicit admonition we can say without reserve that this was an ontological claim. The claim is made on our origin, our beginning and thus, our being. In view of the aristocracies and monarchies of Jefferson’s day this was a radical and liberal statement. Jefferson, as many liberals before him, could not find a way to justify individuality on any basis other than equality. If preference is given by a state, a religion or social mores of one individual over another it is a form of untruth. Liberalism opposes favoritism and calls for impartial justice for all individuals; for not conserving the status quo of traditional power structures.

Individualism in liberalism has historically evolved into what philosophers call a metaphysic. A metaphysic operates as an axiom of truth which cannot be proven; at least from what modernity would think as a law of physics. A metaphysic addresses us at the level of being or ontology. The metaphysical axiom operates at a pre-conscious level. We always, already act as if it was a simple given. Even when we disagree with the axiom, we are still compelled by the axiom to disagree. For example, some may want to claim some sort of racial eugenics which goes radically against equality and individuality but they continually have to fight an uphill battle to do so once the absolute metaphysic of individualism and equality has been historically established. A metaphysic has gone to the level of unquestioned truth by most and is deeply rooted in historical consciousness. It can be opposed but even in vehement opposition it assumes a struggle with a deeply rooted adversary.

Once an absolute metaphysic of the individual is maintained, the question comes into play, how and should individuals be given preference in such an ideology? Historically, this question has been answered in various ways such as natural rights, meritocracy, libertarian, Keynesian, social safety net and civil rights. The limits of liberalism seem to be on one hand at conservatism and on the other hand at collective ideologies, which understand the individual in terms of a group and tend towards centralized organizational structures, such as various forms of socialism and communism. However, it is interesting to note that whether conservatism is on the right or the far left, both agree on a form of statism, a central governing power structure which requires conservation not liberation.

From the ancient Greeks throughout history there were always those who interests were protected by social, political and religious structures. These folks wanted to preserve the status quo and suppress tendencies for liberation. The word, conservative, was not used until recent times but it accurately describes those that wanted to resist changes to the norm, the established order. Moral judgments such as good conservatism or bad liberalism were always relative to each group. However, historically, liberators stood for freedom from tyranny. Historically, conservatives stood for persevering what was tried and true, in their opinion. Nonetheless, problematic issues have shown themselves from the conservative/liberal dialectic.

A historical transition from the new liberators to the old oppressors has been a constant criticism of the conservatives in order to invalidate the initial impetus for freedom. In spite of this, there has never been a shortage of liberation seeking folks as there has never been a utopia which did not necessitate liberals. Conservatives have maintained the charge that ‘the new boss may be worse than the old boss’ so to speak. As long as social doubt remains about change, the conservatives have historically won the day. However, when conditions become severe enough to necessitate change, liberals or revolutionaries have prevailed. Liberals have also been accused of enabling conservatism in the form of the bourgeoisie. The conflict between liberalism and conservatism illustrates a fundamental conflict in how humans understand being. At its roots, being has elements of individualism and collectivism. This archetypal conflict was encoded in the U.S. Constitution with the struggles of Thomas Jefferson and John Adams. After the federalism of George Washington, John Adams and Alexander Hamilton, the liberal ideology of James Madison and Thomas Jefferson won out in American politics from the 1790s to the 1820s. At that time the Jeffersonians were called the Democratic-Republicans or simply the republicans for short but they were very different from the modern Republican Party.

Jefferson wrote in 1798:

Two political Sects have arisen within the U. S. the one believing that the executive is the branch of our government which the most needs support; the other that like the analogous branch in the English Government, it is already too strong for the republican parts of the Constitution; and therefore in equivocal cases they incline to the legislative powers: the former of these are called federalists, sometimes aristocrats or monocrats, and sometimes tories, after the corresponding sect in the English Government of exactly the same definition: the latter are stiled republicans, whigs, jacobins, anarchists, disorganizers, etc. these terms are in familiar use with most persons.²

However, near the end of the 1820s the Democratic-Republican Party split into the Republicans with John Quincy Adams and the Democrats with Andrew Jackson. John Adams believed in a strong central government while Jackson opposed central banks. In those days, typically, liberals were skeptical of established, centralized forms of government and defended individual freedoms. Conservatives championed federalist causes and central banking. The traditional ideas of liberal and conservative have undergone even more mutations in more recent times but these mutations may be more of a modern confusion than a real challenge to these observed categories of human behavior.

As mentioned, conservatives did not want change existing power structures. They wanted to guard established orders and traditions which organized society both religiously and politically. Liberalism can be traced throughout history in the writings of Aristotle, Machiavelli, Hobbes, Spinoza, Locke, Adam Smith, Kant and Thomas Jefferson. For Aristotle liberation was from personal vices and selfishness to the highest virtues. Aristotle wrote that “Of all the varieties of virtues, liberalism is the most beloved”. Others thought of liberalism as a kind of interventional development out from pure self-interest which emerges as virtuous from nature, reason, social contract either validating or invalidating government or efficient, laissez-faire capitalism. In more recent times, the notion of virtue with regard to liberalism, the esteem of individualism over protectionist institutions, has either been dismissed as yet another strategy of the state or as a metaphysically assumed, absolute individual which has no essential relation to social structures external to itself. These developments have muddled the traditional approach to liberalism and conservatism. One such example of these mutations can be thought from the perspective changes of the ‘old right’ and the ‘new right’ in the United States.

The new right is a term used to describe a change in conservative politics starting around 1955. The previous form of conservatism, called the old right, started around 1933. They old right was for a small decentralized federal government. They opposed the federal, New Deal domestic programs started by FDR during the Great Depression. The old right was non-interventionist. They opposed entry in to World War 1 and 2. As Murray Rothbard put it:

The Old Right experienced one big sea change. Originally, its focus was purely domestic, since that was the concentration of the early New Deal. But as the Roosevelt administration moved toward world war in the late 1930s, the Old Right added intense opposition to the New Deal’s war policies to its systemic opposition to the domestic New Deal revolution. For they realized that, as the libertarian Randolph Bourne had put it in opposing America’s entry into World War I, “War is the health of the State” and that entry into large-scale war, especially for global and not national concerns, would plunge America into a permanent garrison state that would wreck American liberty and constitutional limits at home even as it extended the American imperium abroad.³

The old right mostly believed in laissez-faire, classic, liberalist economics such as articulated by Adam Smith. The old right was pro-business and anti-union as echoed by Robert Taft. The old right was for individualism and anti-statist or anti-federalists. As such, they resisted any intrusion of government into religion or morality. They had more of a stoic and silent opposition to legislating morality. Jeff Riggenbach claimed that before 1933 the predecessors of the old right was considered as classic liberals and claimed to be part of the older, Jeffersonian left.⁴ However, Jeff Riggenbach quoting Clyde Wilson, South Carolina historian Clyde Wilson, claims that the Republican predecessors of the old right departed from the company of the Jeffersonian Democratic-Republican Party:

As Wilson tells it, “[t]he very name of the Republican party is a lie. The name was chosen when the party formed in the 1850s to suggest a likeness to the Jeffersonian Republicans of earlier history. This had a very slender plausibility.” The first problem was that “the Northern Republicans were totally committed to a mercantilist agenda, every plank of which Jeffersonians had defined themselves by being against. The Republicans of the 1850s exactly represented those parts of the country and those interests that had been the most rabid opponents of Jefferson and his Republicans.”⁵

Mercantilism occurred in Europe from around 1,500 AD to 1,700AD from the collapse of the feudal system to the establishment of national states. It is generally understood as:

The underlying principles of mercantilism included (1) the belief that the amount of wealth in the world was relatively static; (2) the belief that a country’s wealth could best be judged by the amount of precious metals or bullion it possessed; (3) the need to encourage exports over imports as a means for obtaining a favorable balance of foreign trade that would yield such metals; (4) the value of a large population as a key to self-sufficiency and state power; and (5) the belief that the crown or state should exercise a dominant role in assisting and directing the national and international economies to these ends.[link]

While the old right was pro-business, they were also anti-mercantilist. The anti-mercantilist agenda was a reaction to the conspiratorial, monopolizing tendency of manufacturers and merchants with the government against consumers. Adam Smith and David Hume were major critics of mercantilism. Adam Smith wrote a very influential critique of mercantilism in 1776 called An Inquiry into the Nature and Causes of the Wealth of Nations. Adam Smith stated in this work:

MERCHANTS AND MANUFACTURERS are not contented with the monopoly of the home market, but desire likewise the most extensive foreign sale for their goods. Their country has no jurisdiction in foreign nations, and therefore can seldom procure them any monopoly there. They are generally obliged, therefore, to content themselves with petitioning for certain encouragements to exportation.⁶

This same sentiment can be found all the way to Aristotle. In Aristotle’s Politics he states this:

There are two sorts of wealth-getting, as I have said; one is a part of household management, the other is retail trade: the former necessary and honorable, while that which consists in exchange is justly censured; for it is unnatural, and a mode by which men gain from one another. The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of all modes of getting wealth this is the most unnatural.⁷

Today, we might think of this as monopolizing market manipulation and corporatism. The old right did not think highly of the “Eastern Establishment-Big Banker-Rockefeller” wing of the Republican Party. The old right thought of the Rockefeller Republicans as statists which stood for big business and New Deal policies. The Rockefeller Republicans were subsequently referred to as RINOs (Republicans in name only). When big business in the early days of Standard Oil squashed competition through the use of government sponsored regulation, the old right saw this as a new form of mercantilism.

The old right began to diminish with Eisenhower’s expansion into Vietnam and McCarthy’s ‘red scare’ of the 50s. The threat of worldwide communism was enough to shift the Republican Party from the old right’s disdain for centralized government to justification for a newly found conservative emphasis on justifying stronger Federalism for defense, or more accurately offensive, purposes. The new right rose with the presidential campaign of Barry Goldwater and Bill Buckley’s publication, The National Review. Writing of the fading old right and the rise of the new right, Murray Rothbard writes of one last stand by Ron Hamowy of the old right against the new right here:

Ron Hamowy, however, managed to publish in NIR a blistering critique of the New Right, of National Review, its conservatism and its warmongering, in a debate with Bill Buckley. Hamowy, for the first time in print, pinpointed the betrayal of the Old Right at the hands of Buckley and National Review. Hamowy summed up his critique of National Review doctrines:

They may be summed up as: (1) a belligerent foreign policy likely to result in war; (2) a suppression of civil liberties at home; (3) a devotion to imperialism and to a polite form of white supremacy; (4) a tendency towards the union of Church and State; (5) the conviction that the community is superior to the individual and that historic tradition is a far better guide than reason; and (6) a rather lukewarm support of the free economy. They wish, in gist, to substitute one group of masters (themselves) for another. They do not desire so much to limit the State as to control it. One would tend to describe this devotion to a hierarchical, warlike statism and this fundamental opposition to human reason and individual liberty as a species of corporativism suggestive of Mussolini or Franco, but let us be content with calling it “old-time conservatism,” the conservatism not of the heroic band of libertarians who founded the anti-New Deal Right, but the traditional conservatism that has always been the enemy of true liberalism, the conservatism of Pharonic Egypt, of Medieval Europe, of Metternich and the Tsar, of James II, and the Inquisition; and Louis XVI, of the rack, the thumbscrew, the whip, and the firing squad. I, for one, do not very much mind that a philosophy which has for centuries dedicated itself to trampling upon the rights of the individual and glorifying the State should have its old name back.⁸

The new right increasingly gained influence in conservative politics through Ronald Reagan and Newt Gingrich. The consolidation of fundamentalist Christians and federally sanctioned morality in such issues as anti-abortion and gay marriage has continued through the present day. Jeffersonian individualism which came out of classic liberalism was wrongly co-opted partly by the new right’s mercantilism, its big business agenda, but ultimately by the statist merger of religion and the state in terms of politically sanctified issues like the moral majority, anti-abortion and gay marriage.

When the Supreme Court rules on issues such as civil rights, gay marriage and abortion, it appears confusing to modern conservatives who have deviated from their old right roots and liberals which have moved more towards Federalist policies. However, the Supreme Court is not a modern institution only. It has a history and a precedence to preserve which does not lend itself too quickly changing ideologies. In the future I would like to look at some recent issues which have angered liberals and conservatives with a historical perspective in mind to try to understand how some of these confusions have come about not from a changing Supreme Court but more from changing historical notions of conservative and liberal ideologies.

_________________

¹ See Link

² letter to John Wise in Francis N. Thorpe, ed “A Letter from Jefferson on the Political Parties, 1798,” American Historical Review v.3#3 (April 1898) pp 488-89 in JSTOR

³ See Link

⁴ Riggenbach, Jeff. “The Mighty Flynn,” Liberty January 2006 p. 34; Also, WHY AMERICAN HISTORY IS NOT WHAT THEY SAY: AN INTRODUCTION TO REVISIONISM, Riggenbach, Jeff, page 130, Link

⁵ WHY AMERICAN HISTORY IS NOT WHAT THEY SAY: AN INTRODUCTION TO REVISIONISM, Riggenbach, Jeff, page 131, Link

⁶ See An Inquiry into the Nature and Causes of the Wealth of Nations, page 400

⁷ Aristotle, Politics, Part X, Link

⁸ THE BETRAYAL OF THE AMERICAN RIGHT, MURRAY N. ROTHBARD, page 176-177, Link