Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism During the Cold War, 1947–1951
Keywords:
constitutionalism, exclusively, constitutional, conservatives, perceived, conservativeAbstract
Recent scholarship on conservative constitutionalism in the United States focuses near-exclusively on the development of originalism as a method of constitutional interpretation. Before conservatives turned to originalism to counter the perceived threats of an activist judiciary in the 1980s, however, this article demonstrates that conservatives employed a very different interpretive philosophy to counter a very different perceived threat. To do so, this article reconstructs the history of a conservative legal movement that predated “the” conservative legal movement. Indeed, this article uncovers how conservatives employed natural law philosophy to respond to the elite legal academy’s seemingly morally foundationless positivism during the Cold War. The network of natural lawyers that sustained this earlier movement was deeply indebted to the Natural Law Institute (NLI), an academic initiative of the University of Notre Dame established in 1947. By framing the founding fathers’ natural law philosophy as a bulwark of individual liberty against the encroachments of legal realists, World War II-era totalitarians, and Cold War communists, the NLI created what the political scientist Amanda Hollis-Brusky has termed a “political epistemic network.” In concluding, this article suggests that recovering the history of the NLI’s epistemic network reveals the importance of natural law to the making of conservative constitutionalism during the Cold War.
References
1
“The Manion Line,” The Notre Dame Scholastic, February 18, 1966.
2
Kyle Burke, “Radio Free Enterprise: The Manion Forum and the Making of the Transnational Right in the 1960s,” Diplomatic History 40 (2006): 127. On the history of YAF, see, e.g., John A. Andrew III, The Other Side of the Sixties: Young Americans for Freedom and the Rise of Conservative Politics (New Brunswick, NJ: Rutgers University Press, 1997); Gregory L. Schneider, Cadres for Conservatism: Young Americans for Freedom and the Rise of the Contemporary Right (New York: NYU Press, 1998).
3
“The Manion Line.”
4
See Burke, “Radio Free Enterprise,” 128. On Clarence Manion’s success as a radio broadcaster and political commentator, see, e.g., Nicole Hemmer, Messengers of the Right: Conservative Media and the Transformation of American Politics (Philadelphia, PA: University of Pennsylvania Press, 2016), 45–48, 69–71, 97–112, 229–38.
5
See “Dean Manion Resigns as Law School Head; University Will Name Successor in June,” The Notre Dame Scholastic, February 8, 1952.
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“Dean Manion Resigns as Law School Head.”
7
See, generally, Dennis J. Wieboldt III, “Conservative Constitutionalism Reconsidered,” reviewing Conservative Thought and American Constitutionalism Since the New Deal, by Johnathan O’Neill, Journal of American Constitutional History 2 (2024): 831–44.
8
On natural law and the founding generation, see, recently, Kody W. Cooper and Justin Buckley Dyer, The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding (Cambridge: Cambridge University Press, 2022). Although the scholarship on originalism and its particular methodological varieties is vast, a helpful study of originalism’s development can be found in Lawrence B. Solum, “What is Originalism? The Evolution of Contemporary Originalist Theory,” in The Challenge of Originalism: Theories of Constitutional Interpretation, eds. Grant Huscroft and Bradley W. Miller (Cambridge: Cambridge University Press, 2011), 12–41.
9
On the history of originalism, and especially its rise to prominence in the 1980s, see Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore, MD: Johns Hopkins University Press, 2005), 133–89.
10
On civil rights and anti-communism, see, recently, Gregory Briker and Justin Driver, “Brown and Red: Defending Jim Crow in Cold War America,” Stanford Law Review 74 (2022): 447–514.
11
“George Sokolsky, Columnist, Dies; Author and Spokesman for Conservatives Was 69; Hoover Pays Tribute,” The New York Times, December 14, 1962; Sokolsky to Hesburgh, July 25, 1953, box 116, folder 23, George E. Sokolsky Papers, Hoover Institution Library & Archives, Stanford University, Palo Alto, CA (hereafter GESP).
12
Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (New York: Oxford University Press, 2021), 190.
13
On this “forgotten jurisprudential debate” between Catholics legal scholars and legal realists, see John M. Breen and Lee J. Strang, “The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism,” Marquette University Law Review 98 (2015): 1203–311.
14
On this interwar history, see, generally, Edward A. Purcell Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, KY: The University Press of Kentucky, 1973).
15
Francis E. Lucey, “Jurisprudence and the Future Social Order,” Social Science 16 (1941): 212–13, 216.
16
John C. Ford, “Fundamentals of Holmes’ Juristic Philosophy,” Fordham Law Review 11 (1942): 256. On Holmes’s association with legal realism, see, e.g., Morton J. Horowitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 109–43; Laura Kalman, The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1996), 13–14.
17
Paul L. Gregg, “The Pragmatism of Mr. Justice Holmes,” Georgetown Law Journal 31 (1943): 262.
18
Thomas F. Broden, “The Straw Man of Legal Positivism,” Notre Dame Lawyer 34 (1959): 530.
19
See Ben W. Palmer, “Hobbes, Holmes, and Hitler,” American Bar Association Journal 31 (1945): 569–73.
20
See, e.g., Fred Rodell, “Justice Holmes and His Hecklers,” Yale Law Journal 60 (1951): 621; W. Howard Mann, review of Justice Oliver Wendell Holmes: The Shaping Years, 1840-1860, by Mark DeWolfe Howe, Indiana Law Journal 32 (1957): 550; Broden, “The Straw Man of Legal Positivism,” 530-55; G. Edward White, “The Rise and Fall of Justice Holmes,” The University of Chicago Law Review 39 (1971): 66; Saul Touster, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” Hofstra Law Review 10 (1982): 676; Anthony J. Sebok, “Misunderstanding Positivism,” Michigan Law Review 93 (1995): 2060.
