Once upon a time, a loud, obnoxious, pro-choice, anti-gun, pro-regulation, pro-government Democrat was insulted at a White House Correspondents Dinner, and so he decided to run for President. Connecting with and networking the darkness and grievance that exists (in some degree) in all human hearts, he was able to win a sufficient number of votes in key places to win the Presidency. Along the way, he feigned interest in the issues that united Conservatives, and in what can and will be chalked up as one of his two great achievements (the other being the Abraham Accords), he followed through with an early promise on judicial appointments and was fortunate enough to nominate three solid justices to the court in his otherwise regrettable four-year term.
We are now six years removed from the summer in which this carnival barker blotted out the sun and created a principled antibody movement of actual conservatives—the folks who read and appreciate Burke and Kirk, Will and Krauthammer, Goldstein and Williamson, etc. The vast majority of people in this movement recognized not only the unfitness of the office’s occupant from 2017-2021, but the danger his term had created to the political system undergirded by the Constitution and in the end, the Constitution itself.
Along the way, conservatives continued to conserve—that is, they continued to write and think about the importance of conserving the blessings of our founding—limited government, Constitutionalism, federalism, the rule of law, individual liberty, and free markets. Additionally, they continued to raise objections to the things that diminished those blessings—judicial activism, congressional overreach, collectivism, protectionism, among others—while what they held dear ideologically was under siege not only from an “awokened” left (which was predictable), but from an increasingly populist right that embraced the “lessons” they think they learned from Trumpism, including sharp curtailment of first amendment rights and free markets.
This phenomenon of the right—saddled as we are with French Revolution created notions of what left and right are—is what is interesting me. I know and respect many progressives, and the thing about them is that they are consistent—or at least predictable. I’m almost never surprised by a lefty. It is on the right where the surprises are now to be found, and there is a sorting underway, one that leaves the “right” as we know it divided into three major categories.
Before I go further, I am NOT talking about the Republican Party. Not one bit. I have no loyalty to the Republican Party, and if a candidate of some other party did a solid job of embracing my brand of old-school conservatism, I would vote for him or her. This is about the ideological filters one brings to political questions, and these filters are perhaps loosely correlated with party preference, but are not the same. If you are someone who brings NO ideological filters to political questions, I’d like to meet you, because you are either extraordinary, or you are a pathological liar. We all bring filters to these questions. Mine happen to be as stated earlier—limited government, Constitutionalism, federalism, the rule of law, individual liberty, and free markets. Yours are likely different.
The New Right
In this section, I am going to speak ill of broad groups of people without identifying individuals. Generally well-informed readers will be able to place individuals in the respective groups, but for the moment, I have no interest in “calling out” others.
There are—as far as I can tell—three major intellectual subdivisions on the right these days. There are people like me who continue to adhere to the blessings of our founding, who were not seduced by the dark populism of the last six years and never were, and who write and think and talk about a future in which the political process is shaped by our ideas. We are the “we didn’t change, the right did” people.
The second subdivision is the populist right that is somewhat more emotive than intellectual, but which has accumulated the veneer of ideology. This is the group that advocates for additional government control of “the public square”, additional government control of “big-tech/business”, government intervention into markets, and a far-more muscular vision of government intercession into what the right previously considered to be the private sphere.
The final group on the right, and the latest to form, consists of those who in the past would have been considered conservatives of the first group, and who have LONG records of public advocacy of those ideas, but who in the process of working through their NeverTrumpism have now found it convenient to question even the most dearly held tenets of modern conservatism. I’m not even sure if they consider themselves to be “of the right” anymore. This session of the Supreme Court has flushed them out, and has created a bright shining line between where they are rhetorically today, and where they once were.
Again—I’m not going to name names. But there is a cottage industry growing of formerly household names on the right publicly questioning the motives and the legitimacy of the Supreme Court as a result of recent decisions, as if everything they once believed in the conservative movement is now up for grabs. Let’s start with the Dobbs decision. I am not here to argue pro-life or pro-choice. I am here to write about HOW Roe and Casey were viewed as matters of constitutional law on the right, and it is not a stretch to say that the view that Roe and Casey were among the worst-reasoned overreaches in the history of judicial activism approached universal acceptance. It has never mattered (to conservatives) that abortion is supported by varying levels of public support at varying times in a pregnancy. The question only ever was—is there a right to abortion in the Constitution, either enumerated or unenumerated? Conservatives believed that no such right existed, that Roe ended what would have been a better process of states individually determining abortion rights within their jurisdictions, and that the Supreme Court dramatically overstepped its authority in Roe and Casey.
The ruling in Dobbs achieved this end of the modern conservative movement. Now, individual states will make abortion law. Yet there is no shortage of voices from the putative right who have all of a sudden gone wobbly on the Constitution, who for reasons of self-esteem, increasing brand recognition, or even perhaps ideological evolution—now believe that because abortion was legal for fifty years, the Constitutional arguments against abortion should be put aside in favor of the prudential arguments for abortion, as in citations of varying percentages of Americans who “support Roe v. Wade”. Putting aside for a moment the degree to which the average respondent to such a poll is CLUELESS as to what Roe v. Wade actually SAID (and which was RADICALLY modified in CASEY), I am unfamiliar with when public sentiment became a conservative value in determining the Constitutionality of a matter.
Another matter where formerly consistent conservatives have gone wobbly is on government regulation. There weren’t THAT MANY things tying the conservative movement together, but antipathy to government — especially federal government — regulation was one of those things. When the Obama Administration decided to kill the coal industry in the United States and rework the country’s entire approach to energy through “the phone and the pen” (of the regulatory state) rather than through hard to pass and often unpopular legislation—conservatives smelled a rat. We KNEW this was overreach. We KNEW this was not what the founders intended. The court’s ruling in WVA vs. EPA is exactly what we would have hoped the Supreme Court would say.
The destruction of an entire industry in the United States—no matter how popular that may be in service to the program of climate change advocates—is NOT a matter for unelected bureaucrats to decide. Should such a desire be realized, it should be through the labors of the federal legislature. This is the basic jot and tittle of American Conservatism. Yet there are voices from the right who find cause to accuse the court of overreach. Of activism. Of anti-democratic impulses. This is nonsense. Whether we speak of Dobbs or WVA—the court is pointing back at the people and saying it is time for you to hold the organs of government responsible for democratically considering policy—responsible, be they at the state level or at the federal level.
The final case worth consideration is where the Supreme Court struck down a New York law that dramatically restricted the concealed carrying of firearms. Listen folks, I’m pretty squishy on guns. I wish we had fewer guns. I think the number of guns we have is correlated with the amount of violent crime we have ON AN AGGREGATE LEVEL (as in “we have lots of guns and we have lots of deaths caused by guns compared to modern western societies that have fewer guns”, although up until very recently, the number of guns owned in the US grew even as the violent crime rate fell). I’m on the record as advocating a change to the Second Amendment that adds the words “…by the federal government” so that states would be free to regulate guns but the national government couldn’t. But as long as there is a Second Amendment, it must be treated with the same respect as ANY OTHER AMENDMENT TO THE CONSTITUTION. And vesting some dude in the county government with the arbitrary and capricious power to grant a concealed carry permit IS NOT the “freedom” to bear arms. Conservatives used to agree on things like this.
I have come around to thinking that these formerly gold-standard conservatives who now mine the vein of “the great middle” should be known as “popularlists”, as in adhering to an ideology of what is broadly popular with what they consider to be the broad middle of the American electorate. This is not an illegitimate approach to POLITICS per se—it is perhaps a solid electoral strategy. It is not however, an ideological approach. To be honest, it has even less of the veneer of ideology and ideas than the “populist” right has, who at least attempt to ground their glandular impulses in first principles.
Maybe neither the “Populists” nor the “Popularists” should be considered part of the right anymore. This is up for debate. That neither should be considered “conservative” seems without question. I increasingly find little to bind me ideologically with either group, although I may occasionally find myself aligned with particular policy stances.
One More Thing: Congress Needs Help
Conservatives like me LOVE to point to the excesses of the Executive Branch (and the regulatory state which resides largely therein) whether we think that Presidents have grown too powerful (which they have) or that the Congress has stopped legislating effectively (which it has). But I think conservatives need to reconcile something if we are going to be taken seriously and have a serious impact on things. One of the reasons for the spectacular growth in the reach and scope of the administrative state has been the decimation of professional staff on Capitol Hill. When Justice Kagan can unironically state in her recent dissent :
A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.
she is conceding that even sweeping regulatory changes belong with the agencies because Congress hasn't the brain power to regulate. You may disagree with her (as I do) as to where the expertise needs to be, but I think we can safely say that decades of staff reductions on Capitol Hill HAVE resulted in an unsatisfactory imbalance in policy expertise, where lacking the ability to write effective legislation (due in no small part to an inability to contend with the agencies on an equal footing), Congress has “punted” authority to executive agencies to write regulations that are more properly the purview of actual legislation. Kagan’s point in WV v EPA is that the the enabling statute was written as broadly as it was in order to give the EPA exactly the kind of authority that it exercised. What the majority is saying in response, is that this is not the way our system is supposed to work.
In order to better fulfill its constitutional role to legislate, it occurs to me that it is time to reverse the silly “starve the beast” approach to Congressional staffing—especially professional (committee) staffing—and build a better staff organization that enables executive branch agencies to approach the Hill with legislative proposals that could then be handled within the body constituted to do so.
Bryan, I’m “liking” and commenting not b/c I agree with all of your points (this country was forged in the furnace of disagreement) but b/c this is the most intelligent political discourse I’ve read (in ten minutes) in a very long time. BZ for artfully navigating some contentious waters. Well done Captain, my Captain. Jeff