Jesse Merriam has inaugurated this symposium on the future of the conservative legal movement with a provocative essay arguing that the movement needs to reassess itself in light of our current political and cultural moment. He argues that it should shed its technocratic “focus on how precedents are interpreted and distinguished” in favor of a broader project “that conceives of law as a way to sustain the American way of life.” Legal conservatism, Merriam continues, should “develop a constitutional morality that reflects the larger project…of constitutional and…civilizational restoration.” He does not want to abandon originalism but says that the conservative legal movement needs to mount a positive project to meet today’s considerable challenges.
I agree.
In order to clarify Merriam’s argument, it is important to point out that the movement has always needed, if it has not quite always had, at least three separate but overlapping projects.