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Ecumenicalism Through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955–1980

Published online by Cambridge University Press:  10 March 2011

Ken I. Kersch*
Boston College


Contemporary conservatism places an affinity for, fidelity to, and defense of the U.S. Constitution at the center of its electoral, institutional, and movement politics. Through a survey of popular constitutional discourse in postwar conservatism's premiere magazine, National Review between 1955 and 1980—presented in the context of the development of (conservative) political thought and the institutional infrastructure for idea generation and propagation—I argue that that defense began to assume an ecumenically populist, antielitist, and antijudicial form only beginning in the mid-1950s, and a shared commitment to “originalism” only in the late 1970s. From the 1950s through the late 1970s, conservative constitutional argument was centered not on the judiciary, but rather on the (often divisive) constitutionalism of Congress and the executive, and on divergent views concerning structuralist versus moralist constitutional understandings. Over time, however, through dialogic engagement taking place over and through unfolding political events, the movement's diverse intellectual strands reframed and reinforced their relationship by focusing less on their differences and more on an ecumenically shared populist critique of judicial power emphasizing a virtuous demos arrayed against an ideologically driven, antidemocratic, law-wielding elite. During this formative period, besides advocating a particular approach to textual interpretation, constitutional discourse played a critical role in fashioning movement symbols and signifiers, forming hopes and apprehensions, defining threats and reassurances, marking friends and enemies, stimulating feelings of belonging and alienation, fidelity and betrayal, and evoking both rational logics and intense emotions—all of which motivate and inform the heavily constitutionalized politics of American conservatism today.

Research Article
Copyright © Cambridge University Press 2011

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3. Brown v. Board of Education, 347 U.S. 483 (1954) (holding unconstitutional de jure racial segregation by public schools); Roe v. Wade, 410 U.S. 113 (1973) (announcing a woman's constitutional right to terminate her pregnancy). My account here can be added to the list of critiques of Gerald Rosenberg's argument against the significance of Brown and Roe: Rosenberg, Gerald, The Hollow Hope: Can the Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991)Google Scholar. On the significance of popular constitutional discourse, see Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar.

4. I do not seek here to “prove” that the postwar conservative movement shifted from either a non- or a less-constitutionalist to a Constitution-focused paradigm. Because my research has surveyed only constitutional discussion, I cannot demonstrate that there is more or less of it than some other kind of talk (such as nonconstitutional “policy” discourse). Moreover, because I did not survey earlier conservatisms, I cannot “prove” that constitutionalism became a more important part of conservative discourse in this period. My interest is in illustrating the ways in which that discourse was important to this movement, at this time. Given space limitations, I look only at constitutional discourse in the movement's flagship journal, and focus on only a few illustrative areas: judicial power, race, and morals (abortion). —The article is suggestive, providing circumstantial evidence for its thesis, anticipating future scholarship on its subject.

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16. Wolfe, “Libertarians and the Constitution.”

17. Ibid.

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19. See, e.g., Weaver, Richard, Ideas Have Consequences (Chicago: University of Chicago Press, 1948)Google Scholar; Kirk, Russell, “Prescription, Authority, and Ordered Freedom,” in Meyer, , ed., What Is Conservatism? 2340Google Scholar. For this reason, the stark opposition commonly posited between the movement's libertarian and traditionalist wings can be overstated. Many libertarians either support this argument for moral traditionalism or implicitly acknowledge it by choosing to subsume their misgivings to forge serviceable political alliances. See Burgin, “The Return of Laissez-Faire.” See also Ken I. Kersch, “Conservative Stories about the Common Law,” Paper presented at the Annual Constitutional Law Schmooze, Program in Law and Public Affairs, Princeton University (December 3-4, 2010).

20. See, e.g., Ken I. Kersch, “Roe and the Supreme Court in Thick Ideological Context: The Conservative Evangelical Documentary Films of Francis Schaeffer,” Paper Presented at the Annual Meeting of the New England Political Science Association, Newport, R.I. (April 2010).

21. Hoplin, Nicole and Robinson, Ron, Funding Fathers: The Unsung Heroes of the Conservative Movement (Washington, DC: Regnery Publishing, Inc., 2008), 54Google Scholar; Allitt, Conservatives, 175. See

22. Morley, a Rhodes Scholar and Pulitzer Prize–winning journalist, left his position as the editor of The Washington Post (1933–1940) to assume the presidency of his alma mater, Haverford College (1940–1945).

23. Hoplin, and Robinson, , Funding Fathers, 3941Google Scholar; Allitt, Conservatives, 175.

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25. See also Fellowship for Catholic Scholars Quarterly ( A current hub for conservative Catholic constitutional thought is the Witherspoon Institute in Princeton, New Jersey ( (named, with studied symbolism, for John Witherspoon, an early president of Princeton University, teacher of James Madison, and the only clergyman to sign the Declaration of Independence). Witherspoon's Program in Political Thought and Constitutional Government is directed by the Catholic conservative Princeton professor Robert P. George. Gerard Bradley was the first director of its Center on Religion and Constitution (newly endowed by William E. Simon, it is now headed by Matthew J. Franck). The Institute is directed by an Opus Dei numerary. The Washington, DC–based Opus Dei priest John McCloskey—who is responsible for converting Sam Brownback, Robert Novak, Lawrence Kudlow, Alfred Regnery, and Robert Bork to Catholicism—served as a Catholic chaplain at Princeton from 1985-1990, and, following his controversial tenure there, as chaplain of the Princeton-based Opus Dei community, before moving to Washington in 1998. See Chris Suellentrop, “The Rev. John McCloskey: The Catholic Church's K Street Lobbyist,” Slate (August 9, 2002) (; Feuerherd, Joe, “Selling Orthodoxy to Washington Power Brokers: Opus Dei Priest Brings Conservatives to Catholicism,” National Catholic Reporter (September 5, 2003)Google Scholar. See also McCloskey's website ( On George, see Kirkpatrick, David D., “The Right Hand of the Fathers,” New York Times Magazine (December 20, 2009), 24Google Scholar. On the midcentury neo-Thomistic revival generally, see Purcell, Edward A., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University of Kentucky Press, 1973)Google Scholar.

26. See Kersch, Ken I., “Neoconservatism and the Courts: The Public Interest, 1965-1980,” in Watson, Bradley C.S., ed., Ourselves and Our Posterity: Essays in Constitutional Originalism (Lanham, MD: Rowman and Littlefield, 2009)Google Scholar; Ken I. Kersch, “Courts and the Constitution in the Crucible of Commentary: The Genesis of the Neoconservative Vision, 1950-1970,” Paper presented at the Legal History Colloquium, University of Virginia Law School, Charlottesville, VA (November 2006). See also Friedman, Murray, The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy (New York: Cambridge University Press, 2006)Google Scholar; Vaïsse, Justin, Neoconservatism: The Biography of a Movement (Cambridge, MA: Belknap Press of Harvard University Press, 2010) (trans. Goldhammer, Arthur)Google Scholar; Balint, Benjamin, Running Commentary: The Contentious Magazine That Transformed the Jewish Left into the Neoconservative Right (New York: PublicAffairs, 2010)Google Scholar; Allitt, Conservatives, 203–14.

27. For a contemporaneous report, see Steinfels, Peter, The Neoconservatives: The Men Who are Changing American Politics (New York: Simon and Schuster, 1979)Google Scholar.

28. Wattenberg, Ben J., Fighting Words: A Tale of How Liberals Created Neo-Conservatism (New York: Thomas Dunne Books, 2008), 3Google Scholar.

29. In the aftermath of the Democratic sweep in the 2008 presidential election and a perceived crisis of conservative intellectual life, a new neoconservative journal, National Affairs, was launched in fall 2009 by the publisher of the then-defunct Public Interest (

30. See Teles, , Rise of the Conservative Legal Movement, 2257Google Scholar.

31. Piereson, James, “Investing in Conservative Ideas,” Commentary (May 2005): 47Google Scholar. The move amongst conservatives toward big ideas and away from business apologetics thus dates from at least the mid-1940s. See also Phillips-Fein, Invisible Hands. This movement in conservative intellectual life long pre-dates the same movement amongst conservative legal scholars and advocacy groups, which Teles traces back only to the early 1980s. (Teles, Rise of the Conservative Legal Movement.) For a recent, representative list (with commentary) of landmark conservative books, see, Jeffrey O. Nelson, Ten Books That Shaped America's Conservative Renaissance (Intercollegiate Studies Institute, n.d.). The ten are: Mises, Ludwig von, Socialism: An Economic and Sociological Analysis (New York: Macmillan, 1936)Google Scholar; Nock, Albert Jay, Memoirs of a Superfluous Man (New York: Harper and Brothers, 1943)Google Scholar; Hayek, , Road to Serfdom (1944)Google Scholar; Weaver, Richard M., Ideas Have Consequences (Chicago: University of Chicago Press, 1948)Google Scholar; Chambers, Whittaker, Witness (New York: Random House, 1952)Google Scholar; Voegelin, Eric, The New Science of Politics, An Introduction (Chicago: University of Chicago Press, 1952)Google Scholar; Kirk, Russell, The Conservative Mind: From Burke to Santayana (Chicago: H. Regnery, 1953)Google Scholar; Nisbet, Robert A., The Quest for Community: A Study in the Ethics of Order and Freedom (New York: Oxford University Press, 1953)Google Scholar; Meyer, Frank S., In Defense of Freedom: A Conservative Credo (Chicago: H. Regnery, 1962)Google Scholar; and Kristol, Irving, On the Democratic Idea in America (New York: Harper and Row, 1972)Google Scholar. The pamphlet concludes with a note that all of these “ten best” can be ordered from ISI at a discount, and provides a toll-free number to place orders.

32. Hoplin, and Robinson, , Funding Fathers, 2526Google Scholar. Luhnow was William Volker's nephew. See David Boutros, “The William Volker and Company” (Kansas City, MO: Western Historical Manuscript Collection, 2004).

33. Burgin's “The Return of Laissez-Faire” is the most complete account of the founding, development, and influence of the Mont Pelerin Society. See also See also Hoplin, and Robinson, , Funding Fathers, 2630Google Scholar. Director's sister, Rose, later married Milton Friedman and co-authored his book making the case for free-market capitalism, Free to Choose (1980), and the subsequent PBS series (1980) based on it. Milton, and Friedman, Rose, Free to Choose: A Personal Statement (New York: Harcourt, Brace, Jovanovich, 1980)Google Scholar. See Allitt, , Conservatives, 183187Google Scholar; Phillips-Fein, , Invisible Hands, 4552Google Scholar.

34. Hayek, Friedman, Stigler, James Buchanan, Maurice Allais, Ronald Coase, Gary Becker, and Vernon Smith.

35. Hoplin, and Robinson, , Funding Fathers, 2829Google Scholar.

36. Ibid., 30.

37. For a similar process amongst progressives, see Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap Press of Harvard University Press, 1998)Google Scholar. On the transatlantic dynamic within twentieth-century free-market conservatism, see Burgin, “The Return of Laissez-Faire.”

38. Hayek, quoted in Hoplin and Robinson, Funding Fathers, 159–60.

39. See,, and See also Wolfe, Tom, “Revolutionaries,” New York Post (January 30, 2003)Google Scholar; Murray, Charles, Losing Ground: American Social Policy, 1950–1980 (New York: Basic Books, 1984)Google Scholar; and Kelling, George L. and Wilson, James Q., “Broken Windows,” Atlantic Monthly (March 1982)Google Scholar.

40. Hoplin and Robinson, Funding Fathers, 148–66. See Dane Starbuck, The Goodriches: An American Family (Indianapolis: Liberty Fund Press>, 2001) and

41. See Allitt, Conservatives, 155–56. See also Regnery, William H. II, “Preface,” in Sarles, Ruth and Kaufman, Bill, eds., A Story of America First: The Men and Women Who Opposed U.S. Intervention in World War II (Westport, CT: Praeger, 2003)Google Scholar. With General Robert E. Wood, the C.E.O of Sears Roebuck, Co., Regnery helped establish the isolationist America First Committee (1940).

42. Hoplin, and Robinson, , Funding Fathers, 3638, 43Google Scholar. See Boutros, “William Volker and Company.”

43. Since the books Regnery was driven to publish cut against intellectual currents of the time, he had no expectation of ever turning a profit. When he founded the company in 1947, he first tried to organize it as a nonprofit, but the IRS rejected his application. The earliest Regnery book runs were a response to immediate post—World War II challenges to Western civilization. Conservatives understood themselves as Western civilization's most firmly grounded stay against Nazism and Nazi ideology. (Hoplin and Robinson, Funding Fathers, 42.) These early books included Blueprint for World Conquest, As Outlined by the Communist International (Chicago: Human Events, 1946)Google Scholar; Gollancz, Victor, In Darkest Germany (Hinsdale, IL: H. Regnery, 1947) (introduction by Robert Maynard Hutchins)Google Scholar; Picard, Max, Hitler in Our Selves (Hinsdale, IL: H. Regnery Co., 1947)Google Scholar; and Gollancz, Victor, Our Threatened Values (Hinsdale, IL: H. Regnery Co., 1948)Google Scholar. Victor Gollancz, a Jewish publisher and author, was, in almost every respect, a man of the British Left. He was (with John Strachey and Harold Laski) a founder of Britain's Left Book Club—publishers of George Orwell's The Road to Wigan Pier (1937)—an opponent of capital punishment, and a humanitarian, antipoverty, and antinuclear activist. A staunch anti-Fascist and anti-Communist, Gollancz was frustrated in his efforts to get Britain (and the world) to recognize and act early against the Nazi efforts to exterminate the Jews, and worked to rescue Jews from Hitler's Germany. Picard, a Swiss physician, Jew, and Catholic convert, abandoned the practice of medicine to devote himself to philosophical reflection on the ills of the modern age. His The Flight from God (Chicago: H. Regnery and Co., 1951)Google Scholar is an attack on the decline of faith and on modern relativism. The book was re-issued by Regnery Gateway in 1989. See also Picard, Max, The World of Silence (Chicago: H. Regnery, 1952)Google Scholar.

44. It also, of course, reflected Regnery's German heritage. The fact that, in the Middle Ages, the gate had been transformed into a church was probably quite attractive to Regnery as well. Napoleon, however, had attempted to remove the church and restore the gate to its (secular) Roman glory, a move that was successfully resisted. Regnery's Porta Nigra mark thus symbolically commemorated to conservative cognoscenti a triumph of the progress of Christian-based Western civilization over modern secular despotism. Hoplin and Robinson, Funding Fathers, 42; Beam, Alex, A Great Idea at the Time: The Rise, Fall, and Curious Afterlife of the Great Books (New York, Public Affairs, 2008), 64Google Scholar.

45. Beam, A Great Idea at the Time. This role has been assumed today by the Liberty Fund. Great Books courses and curricula are supported in the movement today by the Manhattan Institute's Veritas Fund. In its early years, 10 percent of the books sold by Regnery were Catholic school textbooks published for the Archdiocese of Chicago as a service to Catholic parents whose children were forced to attend (secular) public schools. Regnery then moved—in conjunction with Pierre Goodrich (who founded The Liberty Fund in 1960) and the Volker Fund's Harold Luhnow—to establish a line of college textbooks on secular subjects like American history, Latin, and economics. (Hoplin and Robinson, Funding Fathers, 44, 49.)

46. Beam, A Great Idea at the Time, 88, 133, 182. Mortimer Adler was one of William F. Buckley's favorite guests on Firing Line. Adler converted to Catholicism shortly before his death.

47. Mellon's Old Dominion Foundation also helped support St. John's College, a Great Books college in Annapolis, Maryland, and was a predecessor of the Andrew W. Mellon Foundation, named for Paul Mellon's father. The flame of the Great Books burns brightest today at St. John's College (Annapolis and Santa Fe), with outposts at Straussian centers like Kenyon College and Claremont McKenna College and at (often Straussian) Catholic universities like Notre Dame, Boston College, and the University of Dallas.

48. See Macdonald, , “Masscult and Midcult, I & II,” Partisan Review 27 (Spring, Fall 1960), 203–33Google Scholar, 589–631; Rubin, Joan Shelley, The Making of Middlebrow Culture (Chapel Hill: University of North Carolina Press, 1992)Google Scholar. These same trends were behind the establishment of the Reader's Digest Condensed Books and Britannica's Great Books (1950).

49. Beam, A Great Idea at the Time, 65, 57, 70; Purcell, Crisis of Democratic Theory; Behnegar, Nasser, Leo Strauss, Max Weber, and the Scientific Study of Politics (Chicago: University of Chicago Press, 2003)Google Scholar.

50. Beam, A Great Idea at the Time, 70–71. Benton later founded the advertising firm Benton and Bowles (1929-2002), served as a U.S. Senator from Connecticut and U.S. Ambassador to UNESCO, and founded the Encylopedia Britannica. See Hyman, Sidney, The Lives of William Benton (Chicago: University of Chicago Press, 1969)Google Scholar. See also Ashmore, Harry S., Unseasonable Truths: The Life of Robert Maynard Hutchins (Boston: Little Brown, 1989)Google Scholar. While dean of Yale Law School, Hutchins championed legal realism. He moved to Chicago in 1930, where, turning away from realism, he began to question the ability of empirical social science to solve important social problems. As such, the origins of the Great Books can be considered in part an outgrowth of the reaction against legal realism by one of its prominent proponents. Eventually, Hutchins made his way all the way to Aritoteleanism and Thomism. (“[Hutchins's] opponents [at the University of Chicago] spread rumors that Hutchins and Adler, who simply couldn't shut up about St. Thomas Aquinas, were plotting to convert the student body to Catholicism. Historian Tim Lacy writes that the Chicago faculty thought Hutchins ‘was calling for the restoration of the medieval university.’”). This situation gave rise to the oft-repeated quip that the University of Chicago was a former Baptist school where Jewish professors were now teaching Catholic theology to atheists. Upon retiring from Chicago in 1952, Hutchins took up the cause of global justice and world government. (Beam, A Great Idea at the Time, 59, 94, 120-121.) The official relationship between Regnery and The Great Books Foundation ended in 1951, when the heads of the foundation were incensed by Regnery's publication of Buckley's vitriolic God and Man at Yale (1951). (Hoplin and Robinson, Funding Fathers, 47.) Today, Regnery's Gateway book series publishes new editions of (amongst others) Adam Smith's Wealth of Nations, Orestes Brownson's The American Republic, John Locke's The Reasonableness of Christianity, The Political Writings of St. Augustine, St. Augustine's Enchiridion on Faith and Hope, Romano Guardini's The Lord (with foreword by Cardinal Joseph Ratzinger), and St. Thomas Aquinas's Treatise on Law.

51. Favorably reviewed in the New York Times, it caught the attention of William Casey, who told Henry Regnery in private correspondence what a formative influence the book had had upon his thinking. As CIA Director in the 1980s, Casey played a major role in the support of the Contra insurgency against the Communist government in El Salvador and the resistance to the Marxist Sandanista government in Nicaragua. (Hoplin and Robinson, Funding Fathers, 44–45.)

52. Hoplin and Robinson, Funding Fathers, 45–48. Later, Regnery Books was aptly cited by many pivotal policymakers in the Reagan administration as a wellspring of many of the era's most influential ideas. Regnery remains a major player in contemporary conservatism, where it has published many notable books, including Coulter, Ann, High Crimes and Misdemeanors: The Case Against Bill Clinton (Regnery, 2002)Google Scholar; Goldberg, Bernard, Bias: A CBS Insider Exposes How the Media Distort the News (Regnery, 2001)Google Scholar; Ingraham, Laura, Power to the People (Regnery 2008)Google Scholar; Meese, Edwin, Spalding, Matthew, and Forte, David F., eds., The Heritage Guide to the Constitution (Regnery, 2005)Google Scholar; and (most recently) D'Souza's, Dinesh, The Roots of Obama's Rage (Regnery, 2010)Google Scholar and Gingrich's, NewtTo Save America: Stopping Obama's Secular–Socialist Machine (Regnery 2010)Google Scholar. Regnery's Politically Incorrect Guides series offers a broad-ranging (one is tempted to say comprehensive), playful, and easily readable conservative counternarrative to American history, U.S. constitutionalism, and controversial policy issues. In addition to its guide to the U.S. Constitution, the series includes “politically incorrect” guides to American history, the Founding Fathers, the New Deal, the Bible, Western civilization, the Civil War, the South, Islam, Darwinism and intelligent design, capitalism, global warming, hunting, the Vietnam War, and women, sex, and feminism. Henry Regnery gave generously in helping to establish the Young Americans for Freedom (YAF) ( and the Philadelphia Society ( (Hoplin, and Robinson, , Funding Fathers, 5253, 55.Google Scholar) See

53. Hoplin and Robinson, Funding Fathers, 192, 196–97; Phillips-Fein, Invisible Hands, 169–73; Kirk, Russell, The Conservative Mind: From Burke to Santayana (Chicago: Regnery, 1953)Google Scholar. Heritage created (1995), an internet clearinghouse for conservative thought and opinion, and publishes Policy Review, a leading conservative policy journal. See

54. Hoplin and Robinson, Funding Fathers, 202. See; Intervening in politics directly, Coors helped Phyllis Schlafly defeat the ERA and gave $250,000 to Ward Connerly's American Civil Rights Coalition to promote the anti–affirmative action California Proposition 54. (Hoplin and Robinson, Funding Fathers, 201–2, 209. Southworth, Lawyers of the Right, 127.) See generally, Scheingold, Stuart A. and Sarat, Austin, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998)Google Scholar; Scheingold, Stuart A. and Sarat, Austin, Something to Believe In: Politics, Professionalism, and Cause Lawyering (Stanford, CA: Stanford University Press, 2004)Google Scholar.

55. Critchlow, Donald T., The Conservative Ascendency: How the GOP Right Made Political History (Cambridge, MA: Harvard University Press, 2007), 7, 11Google Scholar. See also Nash, “Creation Story: Building the House of Conservatism,” 154, in Nash, Reappraising the Right; Phillips-Fein, , Invisible Hands, 325Google Scholar; Bloomfield, Maxwell, Peaceful Revolution: Constitutional Change in America from Progressivism to the New Deal (Cambridge, MA: Harvard University Press, 2000)Google Scholar.

56. Buckley, William F. Jr., Flying High: Remembering Barry Goldwater (New York: Basic Books, 2008), ix, xGoogle Scholar. See also Critchlow, Conservative Ascendency, 23, 40; Allitt, Conservatives, 175–76.

57. See Nash, “God and Man at Yale Revisited,” in Nash, Reappraising the Right, 133–47.

58. Hoplin, and Robinson, , Funding Fathers, 6869Google Scholar. Goldwater was recruited to both run for president and write Conscience of a Conservative by Clarence Manion.

59. At William F. Buckley, Sr.'s request, Regnery agreed to buy back $25,000 worth of shares in Buckley's company, which made it possible for Buckley père to underwrite his son's new magazine. (Hoplin and Robinson, Funding Fathers, 55.) See also Nash, “Forgotten Godfathers,” in Nash, Reappraising the Right, 204–5; Hoplin, and Robinson, , Funding Fathers, 7071Google Scholar; and Phillips-Fein, , Invisible Hands, 7781, 147, 224Google Scholar. William Casey, a New York lawyer, and, like Buckley, a devout Catholic, drew up NR's initial articles of incorporation and later ran Ronald Reagan's 1980 presidential campaign, subsequently becoming one of his closest advisors and a controversial CIA director. Casey was also a co-founder of The Manhattan Institute. Major investors in NR included Henry Salvatori, a California engineer and pioneer of off-shore oil drilling, who was active in the 1964 Goldwater campaign and part of the group of influential businessmen who encouraged Ronald Reagan to run for Governor of California in 1966. In 1969, Salvatori became the benefactor of the Henry Salvatori Center for the Study of Individual Freedom in the Modern World at Claremont McKenna College, the home of contemporary Straussianism. ( The center publishes the Claremont Review of Books (

60. Hoplin and Robinson, Funding Fathers, 71.

61. Ibid., 72. The Conservative Book Club was founded later, in 1964, to serve the community that NR helped to create. Today, it is a subsidiary of Eagle Publishing, a conglomerate that owns Regnery, Human Events, and other conservative outlets. “Conservative Book Club Membership Soars,” Human Events (October 2, 2007).

62. In that statement, Buckley wrote: “We begin publishing … with a considerable stock of experience with the irresponsible Right, and a despair of the intransigence of the Liberals, who run this country; and all this in a world dominated by the jubilant single-mindedness of the practicing Communist …. All this would not appear to augur well for National Review. Yet we start with a considerable—and considered—optimism.” NR, he proudly proclaimed, “stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” Buckley continued: “[NR] is out of place because … literate America rejected conservatism in favor of radical social experimentation. Instead of covetously consolidating its premises, the United States seems tormented by its tradition of fixed postulates having to do with the meaning of existence, with the relationship of the state to the individual, of the individual to his neighbor, so clearly enunciated in the enabling documents of our Republic.” Buckley, William F. Jr., “Mission Statement,” National Review (November 19, 1955)Google Scholar. NR would make the case for those postulates, as articulated in the nation's founding texts.

63. In September 1960. See Kramnick, Isaac and Lowi, Theodore J., American Political Thought: A Norton Anthology (New York: W.W. Norton, 2008), 1281–82Google Scholar.

64. Hoplin, and Robinson, , Funding Fathers, 8081Google Scholar; Allitt, Conservatives, 177–80; Schneider, Gregory L., Cadres for Conservatism: Young Americans for Freedom and the Rise of the Contemporary Right (New York: NYU Press, 1998)Google Scholar. Buckley also was named the first president of Intercollegiate Studies Institute (ISI), which nurtures young conservative talent on university and college campuses. ISI (initially known as the Intercollegiate Society of Individualists (, the first national organization for conservative students, was founded in 1953 by Frank Chodorov, a staunch libertarian and founder of The Freeman, to undertake a “fifty-year project” to reform American universities and win them over to the cause of “freedom.” This is an objective that other foundations—Olin (now defunct), Bradley, Scaife, Earhart, Veritas, and Jack Miller, amongst others, still pursue—in part by founding college and university centers devoted to the study of the Constitution, American political thought, and the values and foundations of Western liberal democracy. ISI's extensive publishing arm, ISI Books, publishes writing on constitutional topics, including that by Robert Bork, Gerard V. Bradley, Christopher Wolfe, Robert P. George, Walter Berns, and George W. Carey. It provides free books to campus reading groups.

65. Buckley's run led directly to the founding of the influential New York State Conservative Party. Hoplin, and Robinson, , Funding Fathers, 8083Google Scholar; Marlin, George J., Fighting the Good Fight: A History of the New York Conservative Party (South Bend, IN: St. Augustine's Press, 2002)Google Scholar. The Firing Line video archive is housed at Stanford University's Hoover Institution (

66. Buckley, William F. Jr., “The Week,” National Review (28 November 1980), 1434Google Scholar, quoted in Hoplin and Robinson, Funding Fathers, 74. Speaking as a sitting president at the magazine's thirtieth anniversary banquet, Reagan testified to NR's significance to his own political education, noting that he had been a Democrat when he had first read it, and hadn't stopped reading since. “National Review is to the offices of the West Wing of the White House what People is to your dentist's waiting room,” President Reagan declared, adding “I want to assure you tonight: you didn't just part the Red Sea—you rolled it back, dried it up, and left exposed, for all the world to see, the naked desert that is statism.” The magazine, he said, was the “principal intellectual influence in [the] formative years” for “young [conservative] leaders in the media, academia, or government” in the postwar United States. Quoted in Hoplin, and Robinson, , Funding Fathers, 7375Google Scholar.

67. This analytic rigor of this discussion was mocked by Dwight Macdonald in his early assessment of NR. Dwight Macdonald, “Scrambled Eggheads on the Right,” 370 (“Their idea of a hot series is four articles on ‘Presidential Inability’ in which the Constitutional problems posed by Eisenhower's recent illness are explored with a grim thoroughness that includes the facsimile reproduction of two Congressional bills and one resolution.”).

68. See Kersch, Ken I., Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, UK: Cambridge University Press, 2004), ch. 2CrossRefGoogle Scholar; Kersch, Ken I., “The Reconstruction of Constitutional Privacy Rights and the New American State,” Studies in American Political Development 16 (Spring 2002): 6187CrossRefGoogle Scholar.

69. See, e.g., Williams, C. Dickerman, “Reflections on the Fifth Amendment,” National Review (December 21, 1955) 1: 15, 15Google Scholar. See also Williams, C. Dickerman, “Problems of the Fifth Amendment,” Fordham Law Review 24: 19 (1955): 2630Google Scholar; Griswold, Erwin N., The Fifth Amendment Today (Cambridge, MA: Harvard University Press, 1955)CrossRefGoogle Scholar; Williams, C. Dickerman, “The Watkins Case,” National Review (March 21, 1956): 1, 23Google Scholar. For the liberal view in the earlier period, see Frankfurter, Felix, “Hands Off the Investigations,” New Republic 38 (1924): 329Google Scholar; and Landis, James M., “Constitutional Limitations on the Congressional Power of Investigation,” Harvard Law Review 40 (1926): 153CrossRefGoogle Scholar.

70. See, e.g., Meyer, Frank S., “The Revolt Against Congress,” National Review (May 30, 1956): 9, 10Google Scholar; Kornhauser, Samuel J., “Lippmann's ‘Prerogatives’” National Review (May 2, 1956): 1617Google Scholar.

71. Burnham, James, Congress and the American Tradition (Chicago: Regnery, 1959)Google Scholar. Burnham's book was recently re-issued by Regnery, with a forward by Newt Gingrich. Burnham, , Congress and the American Tradition (Washington, D.C.: Regnery, 1996)Google Scholar. On Burnham, see Diggins, John P., Up From Communism: Conservative Odysseys in American Intellectual Development (New York: Columbia University Press, 1994), 160200, 303–338Google Scholar. On the conservative push for the Bricker Amendment to the Constitution, limiting the president's treaty-making power, see Tananbaum, Duane, The Bricker Amendment: A Test of Eisenhower's Political Leadership (Ithaca, NY: Cornell University Press, 1988)Google Scholar. See also Skowronek, Stephen, “The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive,” Harvard Law Review 122 (2009): 2070Google Scholar.

72. Hart, Jeffrey, “Peter Berger's ‘Paradox’,” National Review (May 12, 1972): 511–16, 512Google ScholarPubMed. Hart has published a history and memoir of his years at the magazine: Hart, Jeffrey, The Making of the American Conservative Mind: The National Review and its Times (Wilmington, DE: ISI Books, 2005)Google Scholar. See also Hart, Jeffrey, The American Dissent: A Decade of Modern Conservatism (Garden City, NY: Doubleday, 1966)Google Scholar.

73. Kesler, Charles, “A Special Meaning of the Declaration of Independence: A Tribute to Harry V. Jaffa,” National Review (July 6, 1979): 850–59, 850Google Scholar. Jaffa had been a speechwriter for Barry Goldwater's 1964 presidential campaign and he became famous for penning the line in Goldwater's nomination acceptance speech asserting that “Extremism in the defense of liberty is no vice … And … moderation in the pursuit of justice is no virtue.”

74. See Kristol, Irving, “The American Revolution as a Successful Revolution,” in America's Continuing Revolution: An Act of Conservatism (Washington, DC: American Enterprise Institute, 1975)Google Scholar, reprinted in Kristol, Irving, Reflections of a Neoconservative: Looking Back, Looking Ahead (New York: Basic Books: 1983), 7894Google Scholar.

75. Kesler, “A Special Meaning of the Declaration of Independence,” 851.

76. See Diamond, Martin, “The Declaration and the Constitution: Liberty, Democracy, and the Founders,” The Public Interest 41 (Fall 1975): 3955Google Scholar.

77. Kesler, “A Special Meaning of the Declaration of Independence,” 852.

78. Jaffa, Harry V., The Crisis of the House Divided: An Interpretation of the Issues in the Lincoln–Douglas Debates (Garden City, NY: Doubleday, 1959)Google Scholar.

79. Kesler, “A Special Meaning of the Declaration of Independence,” 854. Jaffa's understandings have served as the wellspring of the contemporary conservative constitutional vision some have called “Declarationism.” With its intellectual core housed at Claremont McKenna College, in the Claremont Review of Books, and at Claremont's Salvatori Center, Declarationism rests on the conviction that the Declaration of Independence is not only an inherent component of the U.S. Constitution, but foundational. Declarationists understand the Declaration to be both philosophically and temporally prior to the Constitution. For, without a prior commitment to the (purportedly Christian) proposition that all men are created equal, there is no basis for considering consent to the Constitution binding. That shared philosophical commitment created the American nation, which then composed and ratified the Constitution. Significantly, this understanding amongst many conservative intellectuals serves as a bridge between the Founders and conservative Catholics, fundamentalist and evangelical Protestants, and Mormons. See, e.g., Murray, John Courtney, We Hold These Truths: Catholic Reflections on the American Proposition (New York: Sheed and Ward, 1960)Google Scholar; Schaeffer, Francis A., A Christian Manifesto (Wheaton, IL: Crossway Books, 2005)Google Scholar; A. Scott Loveless, “The Forgotten Founding Document: The Overlooked Legal Contribution of the Declaration of Independence and California's Opportunity to Revive It Through Proposition 8,” SSRN Working Paper (October 23, 2008). See also Kirkpatrick, “Right Hand of the Fathers.” Declarationism has the special virtue to many conservatives of putting them on the “right side” of civil rights (Lincoln is a hero to Declarationists, which had initially made them anathema to the now largely vanished remnant of neo-confederates). And, because of its appeal to natural law as the root of human equality, Martin Luther King, Jr.'s “Letter From a Birmingham Jail”—which quotes Thomas Aquinas—has been adopted as a core Declarationist text. Today, even the University of Mississippi has a newly opened Declaration of Independence Center for the Study of American Freedom (founded by a Princeton Ph.D. student of conservative Catholic Natural Law philosopher Robert P. George)with images of Lincoln, Jefferson, and King on its homepage banner ( In recent years, Princeton's James Madison Program in American Ideals and Institutions, founded and directed Robert George, and his relatively new, free-standing, Princeton, New Jersey think tank, The Witherspoon Institute, which is leaded by an Opus Dei cleric, is assuming increasing leadership in the propagation of the Declarationist vision. Operating under a “teach the controversy” rubric, Witherspoon (with the sponsorship of the Bush administration's National Endowment for the Humanities) has recently launched a “Natural Law, Natural Rights and American Constitutionalism” web resource, with banner graphics (quotes and photos) juxtaposing the opening lines of the Declaration, Abraham Lincoln on the Declaration, and Martin Luther King, Jr. (quoting Catholic natural law—here, St. Augustine) with the positivist counter-tradition, as represented by Oliver Wendell Holmes, Jr., and Hugo Black. See (for the initiative's announcement notice, see

80. Kesler, “A Special Meaning of the Declaration of Independence,” 855, 858. Kendall, Willmoore and Carey, George W., The Basic Symbols of the American Political Tradition (Baton Rouge, LA: LSU Press, 1970)Google Scholar. Bradford was the pick of Republican traditionalists to head the National Endowment for the Humanities in Ronald Reagan's first term; they were infuriated when he was spurned in favor of William Bennett. Taney wrote the majority opinion in Dred Scott.

81. Kesler, “A Special Meaning of the Declaration of Independence,” 859.

82. Ibid.

83. Jaffa, Harry V., “Another Look at the Declaration,” National Review (July 11, 1980): 836–40, 836, 840Google Scholar. In recent years, Jaffa has been arguing that Thomas Aquinas's thought was more important to the American Founding than John Locke's. See Harry Jaffa, “Natural Law and American Political Thought,” Lecture in the America's Founding and Future Series, James Madison Program in American Ideals and Institutions, Princeton University (September 29, 2003).

84. Jaffa, “Another Look at the Declaration,” 840. See Leo Strauss, , Natural Right and History (Chicago: University of Chicago Press, 1953)Google Scholar.

85. Kendall was once described by Dwight Macdonald as “a wild Yale don of extreme, eccentric, and very abstract views who can get a discussion into the shouting stage faster than anybody I have ever known.” Dwight Macdonald, “Scrambled Eggheads on the Right,” 368. A more endearing portrait was drawn by Saul Bellow in “Mosby's Memoirs,” where the title character Willis Mosby is based on Kendall. Bellow, Saul, Collected Stories (New York: Viking, 2001), 355–73 [originally published in The New Yorker]Google Scholar. See also Nash, , “The Place of Willmoore Kendall in American Conservatism,” in Nash, Reappraising the Right, 6071Google Scholar.

86. Sobran, M.J., “Saving the Declaration,” National Review (December 22, 1978): 1601–2, 1601Google Scholar. Hart's characterization of both Kendall and Strauss suggests that they are progenitors of originalism in that both sought to read texts as their authors intended them to be read. Kendall sought to “define a constitutional orthodoxy based on common sense, American experience, and the founding texts, closely read.” His approach was to start with the “‘We the People’ of the preamble filtered through the delaying and refining process of constitutional forms, democratic instincts and experience combined with high political theory.” See Hart, Making of the American Conservative Mind, 30, 36.

87. Hart, , “Peter Berger's ‘Paradox’,” National Review (May 12, 1972), 512Google Scholar.

88. Ibid. To the consternation of many conservatives, Hart endorsed Barack Obama for president in 2008. We might in part attribute this turn as a reaction against the influence of messianic Straussianism in the contemporary Republican Party. See Hart, Jeffrey, “Obama is the Real Conservative,” The Daily Beast (October 31, 2008)Google Scholar (

89. Hart, “Peter Berger's ‘Paradox’,” 513.

90. Meyer, Frank S., “Again on Lincoln,” National Review (January 25, 1966): 7172, 71Google Scholar. On Meyer, see Meyer, In Defense of Freedom; Smant, Kevin J., Principles and Heresies: Frank S. Meyer and the Shaping of the American Conservative Movement (Wilmington DE: ISI Books, 2002)Google Scholar.

91. Meyer, “Again on Lincoln,” 71, 72.

92. See Whittington, Keith E., “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (2004): 599613Google Scholar.

93. See, e.g., Whittington, Keith E., Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999)Google Scholar.

94. See Kendall, Willmoore, “The ‘Open Society’ and its Fallacies,” American Political Science Review 54 (December 1960): 972–79 (arguing against John Stuart Mill)Google Scholar. See also Kendall, Willmoore, “The Bill of Rights and American Freedom,” in Meyer, , ed., What is Conservatism?, 4164Google Scholar. The injunction that greater attention be paid to the constitutional framers was advanced most influentially by the Straussian Martin Diamond, who published several influential articles on the topic in The Public Interest (See, e.g., Diamond, Martin, “Conservatives, Liberals, and the Constitution,” The Public Interest 1: 96–109 (Fall 1965)Google Scholar). We might, however, also trace the modern originalist impulse as far back as the thought of early twentieth-century civil libertarians like Roger Baldwin or Hugo Black who, in part through this impulse, distinguished themselves from their progressive progenitors. See Witt, John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge, MA: Belknap Press of Harvard University Press, 2007), Ch. 3CrossRefGoogle Scholar. See also Crosskey, William W., Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953)(3 vols.)Google Scholar.

95. God Save This Honorable Court,” National Review (July 17, 1962): 1012, 10Google Scholar. See also Williams, C. Dickerman, “Is It Constitutional?” National Review (July 14, 1970): 731–33, 732Google Scholar. (“Although, of course, practice cannot supply power when none exists, it is true, as once said by Justice Frankfurter, that ‘deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of the text or supply them.’ In the same opinion, he expressed the thought that when the government has ‘consistently operated’ in a given way over a long period of time, that fact ‘fairly establishes’ that it has operated according to its true nature.’”).

96. Powers and Dominations,” National Review (June 2, 1970): 550Google ScholarPubMed.

97. Kilpatrick, James J., “A Very Different Constitution,” National Review (August 12, 1969): 794800, 795Google Scholar.

98. Ibid., 796. See also Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868)Google Scholar.

99. Buckley, William F. Jr., “Two Whats for the Supreme Court,” National Review (November 5, 1971): 1258–59, 1259Google Scholar.

100. Berns, Walter, “School Prayers and ‘Religious Warfare,” National Review (April 23, 1963): 315–18, 316Google Scholar. Berns subsequently decamped to the University of Toronto with fellow Straussian Allan Bloom in the aftermath of the radical student uprisings at Cornell in 1969 and the failure, in their eyes, of the Cornell administration to defend academic standards and integrity. See Downs, Donald Alexander, Cornell ’69: Liberalism and the Crisis of the American University (Ithaca, NY: Cornell University Press, 1999)Google Scholar. Berns later moved to Georgetown, where he is currently professor emeritus, and a Resident Scholar at the American Enterprise Institute. See also Bozell, L. Brent, The Warren Revolution: Crisis in the Consensus Society (New Rochelle, NY: Arlington House, 1966)Google Scholar, 17 (“Everyone knows that constitutions may be written, as in the United States, or unwritten, as in Great Britain. What is less often noticed is that in a society like ours … only part of the Constitution is written down.” [emphasis in original]). Bozell then undertakes an extended discussion of “our unwritten constitution,” where he distinguishes the Constitution's “fixed” from its “fluid” features. Bozell, The Warren Revolution, 20–21.

101. Warren Goes,” National Review (July 8, 1969): B97Google ScholarPubMed. This article did assert, however, that criminal procedure was one area where Court was actually leading.

102. Kilpatrick, , “A Very Different Constitution,” 795. Griswold v. Connecticut, 381 U.S. 479 (1965)Google Scholar.

103. Kilpatrick, James J., “This Much, at Least: The Court,” National Review (September 28, 1973): 1047–52, 1048Google Scholar. Baker v. Carr, 369 U.S. 186 (1962).

104. Kilpatrick, James J., “A Very Different Constitution,” National Review (August 12, 1969): 794800, 794–95Google Scholar.

105. See Allitt, Conservatives, 182.

106. Buckley, William F. Jr., “They Are Going to Do It,” National Review (December 2, 1969), 1234.Google Scholar

107. Macdonald, “Scrambled Eggheads on the Right,” Commentary, 369. He added, “[a] true conservative appeals to the laws or, if desperate, to tradition, but certainly not to the ‘hearts of men.’”

108. [untitled], National Review (July 7, 1964): 1.

109. Ryder, David Warren, “The Day They Killed the Constitution,” National Review (August 23, 1966): 838Google Scholar.

110. Kilpatrick, “A Very Different Constitution,” 795. See also Epps, Garrett, “The Littlest Rebel: James J. Kilpatrick and the Second Civil War,” Constitutional Commentary 10 (1993): 19Google Scholar.

111. Jaffa, Harry V., “The Limits of Dissent,” National Review (September 10, 1968): 911–12, 911Google Scholar.

112. Herberg, Will, “Who Are the Guilty Ones?” National Review (September 7, 1965): 769–70, 769Google Scholar. Herberg, 's most influential book was Protestant, Catholic, Jew: An Essay in American Religious Sociology (Garden City, NY: Doubleday, 1955)Google Scholar. For a similar position on King and the civil rights movement from a Straussian favorably inclined toward the movement's substantive goals (rightly understood), see Storing, Herbert, “The Case Against Civil Disobedience,” in Bessette, Joseph, ed., Toward a More Perfect Union: Writings of Herbert J. Storing (Washington, DC: American Enterprise Institute, 1995), 236Google Scholar. This essay was originally published in Goldwin, Robert A., ed., Civil Disobedience: Five Essays by Martin Luther King, Jr. and Others (Gambier, OH: Public Affairs Conference Center, 1968)Google Scholar [essays by King, James Farmer, Paul Goodman, Herbert Storing, and Harry Jaffa]. Storing taught courses on the Civil War and the Constitution and edited an anthology of African-American political thought: Storing, Herbert J., ed., What Country Have I? Political Writings by Black Americans (New York: St. Martin's Press, 1970)Google Scholar.

113. Toward a Total State,” National Review (April 10, 1962): 234–35Google Scholar.

114. Segregation and Democracy,” National Review (January 25, 1956): 5Google ScholarPubMed. A journalist and editor of The Freeman, Hazlitt wrote for mainstream publications including The Wall Street Journal, The Nation, and Newsweek. He influentially reviewed Hayek's The Road to Serfdom for the New York Times, and arranged for Von Mises to teach at NYU. His libertarian classic Economics in One Lesson (New York: Harper and Brothers, 1946)Google ScholarPubMed was one of Ronald Reagan's favorite books. See Evans, Thomas W., The Education of Ronald Reagan: The General Electric Years and the Untold Story of His Conversion to Conservatism (New York: Columbia University Press, 2008), 53, 77–78, 109, 176, 203Google Scholar.

115. Hazlitt, Henry, “Court or Constitution?” National Review (September 1, 1956), 14Google Scholar; The Brown Decade,” National Review (June 2, 1964): 433–34Google ScholarPubMed. The precedent was Plessy v. Ferguson, 163 U.S. 537 (1896).

116. Davis, Forrest, “The Right to Nullify,” National Review (April 25, 1956): 911, 11Google ScholarPubMed.

117. Bozell, Brent, “A Way Out for the Supreme Court?” National Review (September 13, 1958), 176Google Scholar. See also Bozell, Warren Revolution, 41–58.

118. By What It Feeds On,” National Review (December 22, 1956): 5Google Scholar. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Constitution, Amendment 10.

119. The South Girds Its Loins,” National Review (February 29, 1956): 5Google Scholar; The Court's Pleasure,” National Review (April 25, 1956): 5Google Scholar; Davis, “Right to Nullify,” 11.

120. Return to States Rights,” National Review (April 18, 1956): 4Google Scholar.

121. The Court Views Its Handiwork,” National Review (September 21, 1957): 244–45Google Scholar.

122. Kilpatrick, James J., “Right and Power in Arkansas,” National Review (September 28, 1957): 273–75Google Scholar.

123. Kilpatrick, James J., “Civil Rights and Legal Wrongs,” National Review (September 24, 1963): 231–36Google Scholar.

124. Ibid., 231 (“It should never be forgotten that whenever we vote, we vote as citizens of our states…. The Constitution makes it so.”).

125. Ibid., 236 (referring to Title VI's expansion of federal power to deny federal funds to individuals, without judicial process).

126. See also Meyer, Frank S., “The Attack on Congress,” National Review (February 11, 1964): 109–10, 110Google Scholar, apropos of the 1964 Civil Rights Act that he was concerned: “… not to deny the right of Negroes to equal treatment and dignity before the law. But no clause in that bill is concerned with such old-fashioned American rights. They are concerned rather with federal enforcement of special group privileges.”

127. On the provisions aimed at voting intimidation, he wrote: “I have no patience with conspiracies or chicanery or acts of intimidation intended to deny qualified Negroes the right to vote…“[But] [t]here is abundant law on the books … to prohibit and to punish such willful acts by local registrars.” Kilpatrick cited the 1957 Civil Rights Act as a case in point. But, see the earlier contemporaneous editorial in NR opposing the 1957 Civil Rights Act, which had argued against “put[ting] the South under the domination of federal prosecutors, federal civil rights commissioners, federal judges, and the federal Department of Justice.” In its provisions for the federal control of state election procedures, the editors wrote, “the bill remains a force bill which invades the rights of the states as guaranteed by the original constitutive compact of 1787.” Still a Force Bill,” National Review (September 7, 1957): 198Google Scholar.

128. Kilpatrick, “Civil Rights and Legal Wrongs,” 234.

129. The Brown Decade,” National Review (June 2, 1964), 434Google ScholarPubMed.

130.Gilder, George, “The Myths of Racial and Sexual Discrimination,” National Review (November 14, 1980): 1381–90, 1381Google Scholar.

131. Bakke: Enduring Question,” National Review (July 21, 1978): 880–81Google Scholar.

132. Mr. Wilkins on the Extremists, National Review (January 28, 1969): 62Google Scholar.

133. Ibid.

134. Odom, Bruce, “Some Are More Equal Than Others,” National Review (September 30, 1977): 1114–15, 1115Google Scholar.

135. See also Graglia, Lino A., Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Ithaca, NY: Cornell University Press, 1976)Google Scholar.

136. Richmond Decision,” National Review (February 4, 1972): 82Google ScholarPubMed; Holland, Robert G., “Judge Merhige's Little Plan,” National Review (February 4, 1972): 101Google Scholar; Who's Racist Now?National Review (June 6, 1975): 594–95, 595Google Scholar.

137. They've Blown It,” National Review (July 9, 1976): 719–20Google Scholar. Perhaps this article's title alludes to Wyatt's famously cryptic utterance near the end of the film Easy Rider (“We blew it….”), shortly before his dramatic quest for radical freedom ends in his murder by rednecks on the backroads of the South. Easy Rider (1969) (d. Dennis Hopper).

138. Harvey, William F., “Some Different Thoughts About Bakke,” National Review (February 3, 1978): 151–71, 151, 152Google Scholar. Sumner, William Graham, What the Social Classes Owe Each Other (New York: Harper and Brothers, 1883), Ch. IX (“On the Case of a Certain Man Who is Never Thought Of”), 123–33 (“A and B put their heads together to decide what C shall be made to do for D …. I call C the Forgotten Man.”)Google Scholar.

139. Evans, M. Stanton, “Freedom from Quotas,” National Review (December 23, 1977): 1497Google Scholar.

140. Hart, Jeffrey, “The Negro in the City,” National Review (June 18, 1968): 603–23, 604Google ScholarPubMed. See also Sowell, Thomas, Civil Rights: Rhetoric or Reality? (New York: W. Morrow, 1984)Google Scholar.

141. Hart, “The Negro in the City,” 606.

142. Bakke in a Blue Collar,” National Review (January 1, 1979): 16–17, 16, 17Google Scholar. United Steelworkers v. Weber, 443 U.S. 193 (1979). University of California v. Bakke, 438 U.S. 265 (1978) (voiding by a 5-4 vote the University of California's racial preference scheme for university medical school admissions on Fourteenth Amendment equal protection grounds).

143. See Glazer, Nathan, “One, Two, Many Equalities,” National Review (May 2, 1980): 539, 540Google Scholar [Reviewing Eastland, Terry and Bennett, William J., Counting by Race: Equality from the Founding Fathers to Bakke and Weber (New York: Basic Books, 1980)Google Scholar]. Eastland became an assistant to the Attorney General in the Reagan Justice Department, and is publisher of the Weekly Standard.

144. E.g., Engel v. Vitale, 370 U.S. 421 (1962); Abington v. Schempp, 374 U.S. 203 (1963).

145. See also Kirk, Russell, “Praying in Public,” National Review (October 15, 1976): 1125 (“the United States remains a Christian nation.”)Google Scholar.

146. Daniel K. Williams argues that, far from being quiescent between the 1920s and these provocative Supreme Court decisions, evangelical Christian conservatives were more involved in politics than the conventional wisdom holds. The practical effect of that involvement, however, was largely vitiated by the fact that such conservatives were broadly spread on both sides of the Democrat-Republican partisan divide. Only when they became a major part of the base for a single party, the Republicans—in the process fundamentally transforming the nature and agenda of that Party, which came, in significant part, to serve as their vehicle—did their political involvement reap real policy dividends. Williams, Daniel K., God's Own Party: The Making of the Christian Right (New York: Oxford University Press, 2010)CrossRefGoogle Scholar. That said, the decisions are still a crucial part of the story of the trajectory of the political involvement of postwar evangelical Christian conservatives—in particular of their increasing, and highly influential, association with the Republican Party.

147. See Buckley, William F. Jr., “Abortion as a Campaign Issue,” National Review (October 29, 1976): 1199Google Scholar.

148. Buckley, “Abortion as a Campaign Issue,” 1199. The phrase “regardless of its provenance” refers to its provenance in Catholic doctrine.

149. Brown, Harold O. J., “The Road to Theocracy?” National Review (October 31, 1980), 13281329. 1328Google Scholar. Brown was a theologian who played a critical role in the political mobilization of antiabortion evangelical Christians and in forging a moral and political alliance between Evangelical Protestants and Catholics. See Colson, Charles et al. (participants) and Abraham, William et al. (endorsers). “Evangelicals and Catholics Together: The Christian Mission in the Third Millennium,” First Things 43 (May 1994): 1522 (This statement is familiarly known by insiders as “ECT”)Google Scholar; Bray, Gerald L. et al. (Evangelical Prostestants) and Buckley, James J., et al. (Roman Catholics) “The Gift of Salvation,” First Things 79 (January 1998): 2023Google Scholar. Brown co-founded the pro-life legal and political advocacy group Christian Action Network (now known as Care Net: with future Reagan administration Surgeon General C. Everett Koop, and was a longtime religion editor of the magazine Chronicles: A Magazine of American Culture ( (a publication of The Rockford Institute— The troika of Koop, Brown, and Francis Schaeffer was the driving intellectual force behind the pro-life movement, emphasizing its grounding in a deep moral and philosophical commitment to the significance of human life. See Wunderlink, Susan, “Theologian Harold O.J. Brown Dies at 74,” Christianity Today (July 9, 2007)Google Scholar; Woodbridge, John D., “Harold O.J. Brown (1933-2007),” First Things (July 10, 2007)Google Scholar. See also Brown, Harold O. J., The Reconstruction of the Republic (New Rochelle, NY: Arlington House, 1977)Google Scholar; Brown, Harold O. J., Death Before Birth (Nashville, TN: Thomas Nelson, 1977)Google Scholar; Dr.Schaeffer, Francis, How Should We Then Live? (DVD: Muskegon, Michigan:, Gospel Communications International, 2009 [1977])Google ScholarPubMed; Dr.Schaeffer, Francis and Dr.Koop, C. EverettWhat Ever Happened to the Human Race? (DVD:, Muskegon, Michigan: Gospel Films Distribution, 2007 [1979]).Google Scholar

150. Brown, National Review, 1329.

151. Rickenbacker, William F., “The Law Forbidding Sins,” National Review (January 21, 1972): 46Google Scholar.

152. See, e.g., Brudnoy, David, “Reflections on the Issue of Gay Rights,” National Review (July 19, 1974): 802–3Google Scholar; Real, Jere, “Gay Rights and Conservative Politics: Minority Report: Mad About the Boys,” National Review (March 17, 1978): 342–45Google Scholar.

153. Luce, Clare Boothe, “Two Books on Abortion and the Questions They Raise,” National Review (January 12, 1971): 2733, 28Google Scholar [reviewing Noonan, John T. Jr., editor, The Morality of Abortion: Legal and Historical Perspectives (Cambridge, MA: Harvard University Press, 1970)CrossRefGoogle Scholar; Callahan, Daniel, Abortion: Law, Choice, and Morality (New York: Macmillan, 1970)]Google Scholar. Luce, a charismatic socialite, playwright (The Women (1936)), editor (at Vogue and Vanity Fair), Republican congresswoman from Connecticut, Ambassador to Italy, staunch anti-Communist, fiscal conservative, and Catholic convert—was married to Henry Luce, the publisher of Time, Fortune, and Life magazines. On Luce, see Allitt, Patrick, Catholic Intellectuals and Conservative Politics in America, 1950–1985 (Ithaca, NY: Cornell University Press, 1993)Google Scholar. Today, the Clare Boothe Luce Policy Institute is devoted to “preparing and promoting conservative women leaders.” See

154. Herberg, Will, “The Limits of Pluralism,” National Review (February 23, 1971): 198–99Google Scholar.

155. Buckley, William F. Jr., “Abortion: The Crunch,” National Review (April 20, 1971): 444–45, 444Google Scholar.

156. Magistro, Charles F., “Abortion and the Pluralist Society,” National Review (May 4, 1971): 476–92, 476Google Scholar; The Abortion Front: End of the ‘Phony War,” National Review (March 2, 1973): 249–50, 250Google Scholar.

157. Buckley, William F. Jr., “How to Protest Abortion,” National Review (April 20, 1971): 445Google Scholar. See also Allitt, Conservatives, 216–18.

158. The Continuing Battle Over Abortion,” National Review (February 9, 1973): B12Google ScholarPubMed.

159. See The Abortion Front: End of the ‘Phony War’,” National Review (March 2, 1973): 249–50, 249Google Scholar. The Buckley Amendment (1974) would have prohibited all abortions except to save the life of the mother.

160. Noonan, John T. Jr., “Raw Judicial Power,” National Review (March 2, 1973): 260–64, 261Google Scholar. Noonan, who, besides having a law (and undergraduate) degree from Harvard, received a Ph.D. from the Catholic University of America, was a law professor, first at Notre Dame, and, subsequently, at UC-Berkeley. He is one of the nation's preeminent (conservative) scholars of the relationship between morality and law. In 1985, President Reagan appointed Noonan to the Ninth Circuit Court of Appeals in San Francisco, where he remained an influential voice for constitutional conservatism (he currently has senior status). A past recipient of Notre Dame's Laetare Medal, Noonan substituted at the University's 2009 graduation ceremony when Mary Ann Glendon of Harvard Law School declined the Medal, and the opportunity to address the graduates, in protest against Notre Dame's selection of (pro-choice) President Barack Obama as its commencement speaker. On Noonan, see Allitt, Catholic Intellectuals and Conservative Politics. Byron White's “raw judicial power” language was picked up extensively on the Right, serving, for example, as a key refrain in Francis Schaeffer's documentaries. See Kersch, “Roe and the Supreme Court in Thick Ideological Context.”

161. Noonan, “Raw Judicial Power,” 261–62.

162. Kilpatrick, “This Much, at Least: The Court,” National Review, 1051.

163. Abortion as a Voting Issue,” National Review (September 27, 1974): 1090Google ScholarPubMed; The ACLU's Holy War,” National Review (January 19, 1979): 7475, 75Google ScholarPubMed.

164. Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977)Google Scholar. See O'Neill, Originalism in American Law and Politics, Ch. 5. See also Teles, Rise of the Conservative Legal Movement. Berger's opus was later re-issued by the Liberty Fund: Government by Judiciary, 2nd ed. (Indianapolis, IN: Liberty Fund, 1997) (foreword by Forrest McDonald). For influential statements of the originalist approach to constitutional interpretation, see Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 1Google Scholar; Bork, Robert, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990)Google Scholar; and Scalia, Antonin, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849Google Scholar.

165. Boudin, Louis B., Government By Judiciary (New York: William Godwin, 1932)Google Scholar.

166. Buckley, William F. Jr., “Berger's Big Book,” National Review (November 11, 1977): 1320Google Scholar.

167. Kilpatrick, James J., “Supreme Court: Government's Most Dangerous Branch,” Human Events (December 24, 1977Google ScholarPubMed): 13. See also Kilpatrick, James J., The Sovereign States (Chicago, IL: Regnery, 1957)Google Scholar.

168. Williamson, Richard S., “Court Decisions Have Transformed the 14th Amendment,” Human Events (April 1, 1978): 14Google ScholarPubMed.

169. Berger, Raoul, “Academe vs. the Founding Fathers,” National Review (April 14, 1978): 468–71, 468Google Scholar.

170. Berger, Raoul, “Judicial Government vs. Self-Government,” National Review (April 4, 1980): 402Google Scholar.

171. Berger, “Academe vs. the Founding Fathers,” 468–71.

172. Rees, Grover III, “The Constitution, the Court, and the President-Elect,” National Review (December 31, 1980): 15951602, 1601Google Scholar. Rees taught law at the University of Texas at Austin, served as Special Counsel to Edwin Meese III (1986), where he weighed in on appointments to the federal bench. He subsequently held a variety of judicial, executive branch, and ambassadorial appointments in the Reagan and two Bush administrations.

173. Rees, “The Constitution, the Court, and the President-Elect,” 1601.

174. Ibid., 1601–2.

175. This opposition to Brown was a political albatross for originalism, until originalist scholars later gave conservatives permission to support Brown on originalist grounds. See McConnell, Michael W., “Originalism and the Desegregation Decisions,” Virginia Law Review 81 (1995): 947CrossRefGoogle Scholar; McConnell, Michael W., “An Originalist Justification for Brown: A Reply to Professor Klarman,” Virginia Law Review 81 (1995): 1937CrossRefGoogle Scholar. See also Robert Bork, The Tempting of America. For originalist Justice Antonin Scalia's recent evasiveness on the relationship between originalism and Brown, see Liptak, Adam, “From 19th-Century View, Desegregation is a Test,” New York Times (November 10, 2009), A14Google Scholar.

176. In Thomas Medvetz's terms, the magazine served as “a venue [for conservatives] to specify, debate, and reaffirm the core principles that animate their movement …. to marshal cultural authority by providing each other with intellectual ammunition for use in public debates, such as … data and rhetorical ‘talking points.’” It played a major role in allowing conservatives “to construct the political world as a set of meaningful objects,” working gradually towards, first, an internal, and, then, a public, politically actionable constitutional unity. Medvetz, “The Strength of Weekly Ties,” 346, 357–58, 363. See Kramer, The People Themselves. See also Ackerman, Bruce, We the People: Foundations (Cambridge, MA: Belknap Press of Harvard University Press, 1991)Google Scholar; Ackerman, Bruce, We the People 2: Transformations (Cambridge, MA: Belknap Press of Harvard University Press, 1998)Google Scholar; Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998)Google Scholar; Amar, Akhil Reed, America's Constitution: A Biography (New York: Random House, 2005)Google Scholar; Balkin, Jack M., “Original Meaning and Constitutional Redemption,” Constitutional Commentary 24 (2007): 427Google Scholar; Balkin, Jack M., “Framework Originalism and the Living Constitution,” Northwestern University Law Review 103 (2009): 549Google Scholar. See also the work generally of Yale's Robert Post and Reva Siegel.

177. See Edelman, Murray J., Constructing the Political Spectacle (Chicago, IL: University of Chicago Press), 12, 90, 104Google Scholar.

178. See Edelman, , Constructing the Political Spectacle, 1, 119–20Google Scholar.

179. See Rakove, Jack N., ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern University Press, 1990)Google Scholar; Edelman, , Constructing the Political Spectacle, 1819Google Scholar; Teles, Steven, “Transformative Bureaucracy: Reagan's Lawyers and the Dynamic of Political Investment,” Studies in American Political Development 23 (2009): 6183CrossRefGoogle Scholar. Ultimately, originalism triumphed more broadly: Commitment to “living constitutionalism” is rarely trumpeted these days anywhere on the liberal/left—or in the confirmation hearings of Democratic nominees to the Supreme Court. Today, many of the most prominent liberal/left constitutional theorists—e.g., Bruce Ackerman, Akhil Reed Amar, Jack Balkin—adhere to diverse forms of “liberal original”.

180. Edelman, Constructing the Political Spectacle, 37.

181. Ibid., 40.

182. See Bork, Tempting of America.

183. Geertz, Clifford, “The Politics of Meaning,” in Geertz, The Interpretation of Cultures (New York: Basic Books, 1973), 316Google Scholar.