Note: The Taki post is up and related to the today’s post. The ongoing debate about the future of conservatism is interesting to me. It is good that such a thing is happening, but so far it reveals that we are a long way from having a sensible debate. The participants are still locked into an antiquated mode of thought. Sunday Thoughts is up behind the green door for subscribers as well.

Recently there has been a slow rolling debate among right-wing intellectuals about the state of conservatism and what comes after conservatism. The New Criterion held a symposium on “common good conservatism.” The James Wilson Institute has been debating originalism and legal conservatism (here, here, here and here). Josh Hammer from Yoram Hazony’s group has also been writing about that topic. This debate has also spilled into the foreign policy realm.

There are plenty of others chiming on the topic, but the starting point, even if it is not acknowledged, is that conservatism is done. Whatever comes next may carry the name, but it cannot be the same thing. Interestingly, the old Buckley crowd is not a part of this debate, nor are the neocons. They are too busy hanging onto their sinecures to think much about what comes next. The paleocons have also been left out of the debate, which is ironic given that they were right all along.

As is to be expected with people who view themselves as political theorists, the back and forth is not always accessible. This is especially true with regards to the debate around conservative jurisprudence. It is in that debate, however, where we see the first little green shoots of realism. In this essay the writer points out that there will never be a great rollback of the school prayer decisions. The main reason is no judge or lawyer would ever think such a thing is proper.

The great transition from the original constitutional order to what we have today did not happen in a vacuum. The people have changed, the institutions have changed and the people running the institutions have changed. The writer points out toward the end that the truth is the original social order that is so popular with “constitutional conservatives” no longer exists. America, from top to bottom, is a different world from the one that produced the Constitution.

This is the problem with the current debate about the state of the nation and especially the state of conservatism. The starting point is always the belief that things can be rolled back or reset to a prior order. It is a political revanchism where the plotters seek to reestablish the old order, but this time the people in charge of that order will not be so willing to change it. The proposed alternatives to conservatism promise a return to the past, without regard for how we got to the present.

If there is going to be a New Right in America then the starting point must be a discussion about how we went from the 18th century liberal political system to the present custodial state. In other words, it means retracing our steps in order to find the point at which America went off the course charted by the Founders and instead embarked on a new path for the country. It is in the essay about school prayer that the original sin begins to come into focus.

The writer points out that those school prayer decisions were the result of the consolidation of judicial power under the incorporation doctrine, which is the doctrine by which portions of the Bill of Rights have been applied to the states. In the case of school prayer, the courts extended the prohibition on the federal government regarding official religion to the states. Later courts extended the definition of “official religion” to include any reference to religion.

Clearly, the Founders never intended the establishment clause to apply to the states, as it was never applied to the states until the 20th century. The question is why did the court suddenly decide to apply parts of the Bill of Right to the states and by what authority did they do this? The answer is the 14th Amendment, passed as part of the constitutional reforms following the Civil War. Of course, the reforms were imposed by the victors as part of the spoils of war.

The Civil War did not happen in a vacuum. The roots of that conflict go back to the English Civil War and the founding of the first colonies. Note that the victors of the American Civil War were not the primary hand drafting the Constitution. It was men of the South, with their roots in the cavalier side of the English Civil war, who carried the day on important debates forming the new Constitution. It was the losers of those debates who carried the day seventy years later.

Another way of framing this is that the constitutional order so beloved by originalists did not hold up very well to challenge. It collapsed in the 19th century and since then the victors of the long running debate dating back to the English Civil war have been trying to refashion a new order and a new society. If conservatives are going to find a new path forward, they must come to grips with the present. That means reexamining the past in order to understand why their preferred model failed.

This is why the current debate over conservatism is sterile. No one in that debate is willing to reconsider the 19th century and the events that transformed the country from that which the Founders designed to what emerged in the 20th century. The events of the 19th century are now holy writ. The second founding doctrine is just as entrenched with conservatives as it is on the Left. In fact, both sides compete for who best can achieve the perfect equality promised by the doctrine.

The starting place for a new conservatism is the acknowledgement that the founding creation failed the test of reality. That naturally leads to a debate as to why it failed, which is a debate about the 19th century. That, in turns, means a rethinking of the 20th century in order to gain a clear understanding of the present. Once a new historical framework is in place, then a New Right can begin to chart a new course for itself and the society in which it operates.

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