The Conservative Legal Movement and the Importance of Intellectual Diversity in Law

I have never known any distress that an hour’s reading did not relieve.”

-Charles de Montesquieu

I’m James Barasch, a 1L and I’m pleased to be joining Impact! I used to run a book review column and blog during my time at Tufts University, and I thought I’d continue that tradition here at BC Law.

Over Winter Break, in between holiday celebrations and summer job ponderings, I relaxed by reading “The Rise of the Conservative Legal Movement: The Battle for Control of the Law” by Steven M. Teles. Starting in the 1970s, Conservatives sought to reverse the growth of legal liberalism by focusing on creating their own corps of professionals in law schools, public interest groups, and in the judiciary. Teles relates the story of political experimentation and individual innovators who organized and led this countermovement to significant successes and the prominent place many of its organizations, such as the Federalist Society, the Center for Individual Rights, and the Institute for Justice now hold in modern American legal culture.

Conservatives in the 1970s were faced with a legal system dominated by what Teles calls the “Liberal Legal Network” of institutions and professionals largely beyond electoral control committed to pursuing and furthering the legal liberalism epitomized by the Warren Court. By contrast, conservative grassroots movements and electoral successes were relatively unhelpful in reversing what conservatives saw as a profound overextension of American legal values. First proposed by Lewis Powell in his memorandum “Attack of the American Free Enterprise System” in 1971, the conservative legal movement initially emphasized increasing the conservative presence in what they saw as the overwhelmingly liberal environment of the nation’s universities and law schools. The resulting Federalist Society grew to be a powerful organization for conservative-minded law students and lawyers to gather, network, and debate legal issues from their conservative perspective. Further, faculty at the University of Chicago and elsewhere were largely successful, Teles argues, in establishing Law and Economics programs in many law school curricula, institutionalizing libertarian and conservative legal thought in legal academia, culminating in 1979 with the founding of George Mason University Law School. Teles interviewed many leaders of the conservative movement, and received unprecedented access to organizational archives. The result is an incredibly well-researched, informative and sympathetic view of the people and organizations that have introduced a diversity of opinion in American law.

Teles concludes that though the conservative legal movement has achieved great strides in a relatively short amount of time and can now effectively compete with the “Liberal Legal Network,” it has not yet established the institutional dominance enjoyed by legal liberalism in the 1960s and 1970s. In essence, the conservative legal movement has broken the intellectual monopoly of liberalism, but has not yet been able to establish one of its own. As economic conservatives argue for the salutary effects of a free-market economy, I similarly support a free market of ideas. Thus it is beneficial for society for there to be an absence of intellectual dominance of any side. An intellectual environment functions best where there exists competition, dominance leads to complacency, ossification, and the transformation of living, debated ideas into dead, accepted doctrine. Without competition there can be no growth, no innovation. Many issues face American legal culture today, and neither conservatism nor liberalism has all the practical answers. The way forward through a process of intellectual competition is not necessarily comfortable, it is not necessarily intellectually “safe,” and such a process will often confront us with ideas we find wrong-headed, damaging or politically incorrect. In an intellectual environment such as Boston College Law School, I believe that a certain level of intellectual discomfort and risk is vital in and out of the classroom. As a tree might gather strength through responding to adversity in its environment, so can we as students and our greater society better innovate through intellectual competition. After all, a Republic is at its healthiest when the people can freely express the whole spectrum of their diverse ideas, and contend with those of others, both in government and in society at large.

James Barasch is a 1L at BC Law. He is also a current member of the St. Thomas More Society and the Environmental Law SocietyFeel free to contact him with questions about his experience, BC Law, or law school in general. Comment here or send him an e-mail at baraschj@bc.edu.

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