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FUMARE

Law, culture, and Catholicism...up in smoke!

Thursday, July 21, 2005

"Legal Conservatism"

A recurring theme in this blog as well as in private conversations amongst ourselves over the years has been the adequacy of the terms "Liberal" and "Conservative." Both are obviously political terms and are easily prone to manipulation. In general paralance and as a shorthand, common sense thinking types know the basic distinction in our contemporary political discourse. Well, that may change. Sen. Ted "Swimmer" Kennedy may now start calling himself a conservative.

Just as there are the 4 Loves, according to Prof. Jeffrey Rosen of George Washington University Law School and Legal Affairs contributor to The New Republic, there are 5 types of legal conservatism. I was listening to this explicatio on NPR as I was driving into one of our Nation's finest FORSCOM installations. The Left never ceases to amaze. Since their agenda is and has been utterly rejected by most Americans, they begin the word games. It seems that in order to gain legitimacy and make their legal views and judicial views more palatable, they start to call everything "conservative," but add fine distinctions:

A "Orginalist Conservative" is one who seeks to understand the Constitution in the manner that the founders understood and crafted it, and apply the law and rule within such a framework. Scalia and Thomas are of this camp.

A "Traditionalist Conservative" is one who finds stability in the law (ala' stare decisis) to be the most important duty of the judiciary and hesitates to change "settled law" (i.e., Roe v. Wade). Representatives of this camp are Kennedy, Souter and O'Connor.

Then there are "Pragmatic Conservatives" who are more interested in the empirical here and now and results of judicial rulings, that they rule on what seems most in accord with evolving standards. (Why are they called conservative again?)

There are two others, but after these I was in such a haze that I turned on Mozart's Haffner just to restore some clarity to my skull before I began work. Anyway, let the games begin! Hopefully, those pillars of jello--Republicans--will not fight the battle on the turf of the Kennedys, Schumers and Durbins of the world. I hope that they finally stand up to the Left and start framing the debate themselves. Otherwise, the Left will forever continue to frame the debate. Nice try, Jeff!

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