However, as Antonin Scalia maintains, there is still “A Matter of Interpretation”– that between the originalists and those that favor a “living constition” approach. It is indeed the legitimacy of these two views that is contested, rather than the legitimacy of the constitution itself. The constitution itself is, for all intents and purposes, a “social fact,” and the only thing that could truly allow for its legitimacy to be called into question would be the complete failure of liberal democracy itself. What would that look like? We don’t really want to find out.

Even so, as the country is experiencing difficulties, and the democratic process is not working as effectively as it should, the originalists declare that these troubles are due to a straying away from the country’s founding principles as institutionalized in the constitution; primarily however, they speak of limited government– it is due to the unmitigated growth of government that we owe are problems. If we have a “living constitution” however our problems are due to a lack of democracy, it is “limited democracy” that is our problem. (And indeed the constitution does place limits on democracy as well as government.) Which approach works better I believe depends on the conditions of the times. (Which means I mostly favor a “living constitution” approach, but am not dogmatic about it.)

Taken to its extreme, the originalist approach becomes absurd- shall we claim that the 2nd amendment refers to only muskets and pistols? In this case NRA members certainly favor a “living constitution.” Scalia said that such an approach would ultimately reduce the constitution to “nothing at all.” That is certainly hyperbole. But it is fair to question how far the living constitution approach may be taken before the constitution itself is “rewritten.” Each approach is problematic. I ultimately believe that if the founding fathers are not to govern from beyond the grave, then we must have a “living constition” so that the contractual spirit of the constition, and the solidarity which that brings, may live on. However, with national solidarity becoming more and more difficult in this country, this approach could ultimately have the opposite effect, as seems to be the case. A question worth asking may be, “Is there an alternative to these two approaches?” Certainly there could be, and perhaps there should be.

We can debate these matters endlessly, but, during the course of doing so, who shall say that we should just scrap the constitution and start over again? Could we achieve more of a “consensus” in these times by doing so or would a period of anarchy ensue that could inevitable lead to a dictatorship? Perhaps some people might privately wonder if the constitution really is the best possible social contract we can achieve, but what is at stake if we cease to take it seriously? To begin anew, as wonderful as the promise of a utopian outcome might seem, is not a chance too many people are willing to take.

Just to return to the topic of conservative intellectuals, these are thoughts that they are not likely to entertain in public if at all; thus if intellectuality is really taking a critical open-minded approach that offers up new possibilities, we will not see conservative intellectuals for some time to come. However, Dr. Goldfarb, I do wonder what your definition of an “intellectual” is. Also, what would a conservative’s definition of an “intellectual be? I’m not sure that conservatives and liberals would even be able to agree such a definition at this time.

For the most part, contract law considers what was written and agreed to by the contracting parties, and by implication, the intent of the contracting parties. My guess is that many conservatives subscribe to this position without necessarily articulating it. This view is contrasted with the concept of the living constitution that replies on members of the judiciary to refresh the Constitution to make it relevant to current concerns and situations through judicial interpretation and rulings. One approach relies upon consensus building and the other relies on judicial imposition.

In essence, this is the difference in perspective, which separates conservative approaches to the Constitution from liberal approaches. If the terms liberal and conservative weren’t used, would it be more productive to discuss these alternatives? A reasonable question to ask is which approach to the Constitution best serves a democracy and why? Would we be better off if there were more consensus building and fewer judicial decrees? Which approach works better theoretically? Which approach works better practically? What standards should be used to operationalize the term “works better”?

http://www.amconmag.com/article/2010/aug/01/00033/
http://www.amconmag.com/blog/distributism-more-than-a-middle-way/

Also, here’s a link to a recent article on neo-conservatism, or the death thereof.

http://www.amconmag.com/blog/anatomy-of-neoconservatism/

Interestingly enough, perhaps it is due in part to the decline of neo-conservativism, the dominant conservative ideology ever since Karl Rove had triumphantly declared that they had “seized the mantel of idealism.” This decline has left the “mantle of idealism” up for grabs, as conservatives of all strata now debate the very definition of conservative, and mostly in “traditional terms.” You will hear Ayn Rand and FA Hayek bandied about, but with very little reflection upon whether or not these thinkers really offer anything useful for us to solve the pressing problems of the present. They were right in the 1950s, during the cold war, so why not now? And, even though this vacuum has created the opportunity for a new idealism to emerge, “new ideas” has become a common talking point and nothing more, and I still maintain that the real conservative brain trust is occupied with electioneering, and winning a “global war on terror.” The stock tools of this trade are not Weber or Tocqueville, or Rawls or whomever, but game theory and facile analysis of the discourse of focus groups.

In fact, I am really at a loss to name a single bona fide living conservative intellectual, in the academic tradition, other than Richard Epstein. And he is active in the public sphere as a journalist and his articles have recently appeared in Reason and Forbes Magazine. Over the summer, he wrote an excellent piece on Rand Paul, entitled “Rand Paul’s Wrong Answer:”

http://www.forbes.com/2010/05/24/rand-paul-rachel-maddow-opinions-columnists-richard-a-epstein.html

But his book “Takings” really is where you find his intellectuality; he, albeit predictably, begins with a classical liberal approach to the topic, invoking Hobbes, Locke, and even Weber; but I find much of his thinking to be dubious. Regardless, this area of legal scholarship is another area where conservatives concentrate their brain power; they aim it seems to OWN the constitution. But this is not through creating new and profound ideas, but by rehashing the old ones, primarily the thought of the “founding fathers,” and to use their thought to lend to them a monopoly on legitimacy.

So is conservative and intellectuality an oxymoron? Its legitimacy must ultimately be based on the past, on pre-existing thought, not on a vision of the future. (At least for now.) Yet the very ideals of the founding fathers where indeed once new and progress. And furthermore, there will always come a time when the word “convervative” must be redefined. What is now being done is redefining conservatism by a return to the “founding principles” on which this country was based on. Not entirely a bad development. Yet I do not yield to conservatives a monopoly on “human rights” based on constitutionalism, nor do I see them as the sole guardians of private individuals against the excessess of state power. One reason is, this “constitutional fundamentalism” is often blind to the contradictions of the constitution and also of the ideals that have yet to be realized. I try to debate such issues in the discussion threads of websites such as Reason Magazine. I usually get nowhere. Such topics are evidently not up for debate. America was born perfect, and has been getting better ever since. Until of course Barack Obama showed up. Or so the story goes.

At this point,then rather than searching for a conservative intellectual, I will settle for a conservative with an open mind.