The Gonzo Constitutionalism of the American RightRoundup
tags: conservatism, Supreme Court, Constitutional Law, judiciary, Conservative Legal Movement, Legal theory
Corey Robin is Distinguished Professor of Political Science at Brooklyn College and the CUNY Graduate Center. His essays have appeared in The New Yorker, Harper’s, The London Review of Books, and The New York Times, and he is the author of three books: Fear: The History of a Political Idea (2004), The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin (2011), and, most recently, The Enigma of Clarence Thomas (2019). (February 2020)
This article is part of the Review’s series on the 2020 US elections.
In its heyday, American conservatism was called a “three-legged stool.” One leg was economic and libertarian, appealing to business-minded voters with a platform of tax cuts, deregulation, and gutting the welfare state. The second leg was statist and anticommunist, rallying militarists eager to fight and win the cold war. The third leg was cultural and traditionalist, speaking to voters who were anxious about religion, sex, and race, and who hoped to roll back the reforms of the Warren Court and the Sixties.
These distinctions were always artificial: the cold war was suffused with concerns about race, religion, and the economy; the economy was—and is—inseparable from issues of race and gender. Even so, the three-legged stool expressed an understanding of the conservative movement as a political coalition, an electoral operation whose power lay in the interests and values of a majority of voters and the ability of the Republican Party to mobilize them. With that majority, conservatives created a decades-long hegemony, in which liberals and Democrats were forced to accept, as a condition of governance, many of the premises of Republican rule, much as Eisenhower and Nixon had once had to accommodate parts of the New Deal.
As we head toward November, the three-legged stool of conservatism looks vastly different. Though its electoral base and concerns remain similar, conservatism is no longer a movement in ascendancy. Nor is it much of a party in power: even when it controlled all the elected branches of government, from 2016 to 2018, the GOP wasn’t able to push many parts of its agenda through Congress (the tax cuts were the notable exception). Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means. If once the goal was a mass politics of the right “suitable to governing a modern democracy,” in the words of Irving Kristol, conservatism has since reverted to what Toryism was before the Reform Act: a relic of ancient institutions, an artifact of minority rule.
To judge by its vote-getting and vote-suppressing efforts in 2020, the GOP has little hope for or interest in securing a mandate from the majority, of creating or maintaining a common sense of the whole. It seeks instead to cobble together enough electoral votes out of states representing a minority of the electorate—often rural, older, and white. The first leg of the conservative stool remains what it has been in two out of the last three GOP presidential victories: the Electoral College. Even some of the most alarming reports on the election assume that however violent and vote-suppressing Trump’s path to victory may be, it still runs through the Electoral College.
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