This is How You Fight

What the conservative legal movement and pro-life movement can teach us.

Welcome to The Burnett Breakdown. Due to travel and the Friday morning release of the Dobbs Supreme Court case, I am a day late with this newsletter but hopefully not a dollar short. Please subscribe so that you never miss one!

(Anthony Bolognese/Capitol Hill Photo)

“Fighting”

Several months ago, I wrote a newsletter where I talked about the platitudes that I heard so many Republican politicians promoting. You can read that newsletter here. One of the platitudes that I talked about was the promise from Republican politicians that they would “fight.” I wrote:

Almost every Republican candidate that I have heard has promised to “fight” against a litany of opponents: big tech, radical left, wokism, etc… The issue is that “fighting,” like all other platitudes, is way too broad to communicate anything of substance. Does “fighting” mean to take up arms and participate in violence?

…Does “fighting” against big tech mean infringing on their rights as private companies or legislating them out of existence?

…Does “fighting” the radical left mean silencing political opponents?

…I could go on about what exactly it means to “fight,” but I’m sure I have made my point: saying that you will “fight” broadly is useless unless politicians specify exactly what they are fighting against and how they will fight against it.

While I addressed the issues with broadly saying that you will “fight,” I didn’t really provide a helpful description of what healthy and productive“fighting” looks like. Well, I want to do just that this week by using the conservative legal movement and pro-life movement as examples of how conservatives ought to fight.

Conservative Legal Movement

In case you missed it, the Supreme Court had quite a week. In one of the most consequential weeks in its history, the Supreme Court started by protecting religious liberty in Carson v. Makin, clarified the right to bear arms outside the home in New York State Rifle and Pistol Assn., Inc. v. Bruen, and overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. While overturning Roe v. Wade will understandably get the most attention, these three cases demonstrate just how dominate the conservative legal movement has become.

For many, Robert Bork is only known because he was nominated to the Supreme Court by Ronald Reagan, only to be shot down in what many people cite as the start of the intense Supreme Court confirmations that we know today. However, Robert Bork was more than just a failed Supreme Court nominee; he was instrumental in advocating for and writing about the conservative legal theory now known as originalism. In his seminal 1971 work, “Neutral Principles and Some First Amendment Problems,” Bork argued that it was essential for the Supreme Court to base its rulings on principles derived neutrally from the text and history of the Constitution and apply them impartially across cases.

This was in direct contention with the jurisprudence of the Supreme Court under Chief Justice Earl Warren at the time (1953-1969). Bork, and other conservatives, viewed the Warren Court as stretching the meaning of the Constitution to fit the moral and political views of the justices instead of allowing the people to decide law through legislation. According to Bork, judges should only intervene in overruling legislation when it clearly went against the original public meaning of the Constitution.

The development of originalism continued with legal thinkers and judges such as William Rehnquist, Antonin Scalia, Raoul Berger, etc. The Federalist Society was established in 1982 as a group of conservatives/libertarian legal professionals that wanted to influence the dominating legal order by promoting principles such as “ the state exists to preserve freedom, the separation of governmental powers is central to our Constitution, and it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” The Federalist Society has established branches in law schools across the country and has continued to build a network of conservative and libertarian legal professionals. The Cato Institute and the Institute of Justice have since been established and continue the tradition of promoting conservative legal theory (there are now other branches and differences in the conservative legal movement outside of originalism).

Over the course of the last 50 years, generations of conservatives have developed, organized, volunteered, debated, researched, persuaded, and advocated for a coherent legal theory. In the process, conservatives went from being nonexistent in the legal world to progressive, then Dean of Harvard Law, and future Supreme Court Justice Elena Kagan allegedly saying, “I love the Federalist Society.” There are now 6 justices on the Supreme Court that possess a conservative legal jurisprudence (though with some differences) and numerous more judges throughout the country.

In a word, the conservative legal movement has won.

Pro-Life Movement

Though not exactly the same, the pro-life movement has followed a similar path to the conservative legal movement. Ignited by Roe v. Wade in 1973, the pro-life movement has relentlessly advocated, marched, debated, lobbied, and organized for the repeal of legalized abortion in the United States.

Pro-life lawyers have spent decades developing and promoting an airtight argument for why Roe v. Wade and subsequently Casey v. Planned Parenthood should be overturned. Pro-life advocates have developed organizations such as National Right to Life Committee, Students for Life, Americans United for Life, and many more, that have raised money and awareness for the cause of ending abortion. Millions of pro-life supporters have participated in the March for Life annual gathering in Washington D.C. that has happened every year since Roe v. Wade. Pro-life churches have donated and established pregnancy crisis centers with the goal of helping those considering an abortion.

The pro-life movement has suffered immense setbacks, such as the aforementioned Casey v. Planned Parenthood, and been demonized by pro-choice advocates for decades. Pro-life men and women have been accused of being anti-woman and upholding a patriarchal system of oppression. They have been condemned as religious zealots and theocrats. Nonetheless, the pro-life movement has continued to persevere and done what just 5 years ago was deemed impossible: overturn Roe v. Wade.

The Fight Continues

With all of that said, the fight is not over. Progressives and Common-Good Constitutionalists threaten the conservative legal victories that have been achieved. The vast majority of abortions will still be performed in the United States despite the overturning of Roe v. Wade. But, how we fight matters.

Patience. Organization. Perseverance. Hard-work. Intelligence. Principled. These are just some of the words that describe the fighting done by the conservative legal movement and pro-life movement. They didn’t seek to overthrow our system and replace it. They simply put their heads down and did the hard work of working within the system to reform it. Some of them, in fact many, did not even live to see the fruits of their labor. Yet, they fought nonetheless. This is the example that conservatives ought to follow.

I want to close by pointing out two areas of conservatism that would benefit the most from the example set by the two movements above: school-choice and Congress.

It is no secret that the world of education is dominated by progressives both in K-12 and higher-ed. As a result, conservatives are growing increasingly aware and concerned about this domination. In order to successfully change this though, conservatives need to commit to do the hard work of reform. For example, they need to think seriously about educational theory, debate school-choice policies, create or join organizations that promote school-choice, and become educators. There are plenty of conservatives in this fight already, but there are plenty more that can join it as well.

The other is the refusal of Congress to do its job and legislate. Too many members of Congress use their office to promote themselves. They write legislation that has no chance of passing but is only meant to be a “messaging” bill. Consequently, the administrative state and the executive branch grow more powerful as Congress becomes more feckless. In order to fight this, conservatives need to form organizations that promote politicians who take serious a Congressperson’s role in legislating, vote out politicians that use the office to promote themselves, debate and propose reforms to Congress and/or primaries that change incentives, and so much more.

Unfortunately, this kind of fighting is much harder than trolling and owning the libs. It runs the risk of suffering setbacks and takes more time. It isn’t as fun and requires more thought. However, it is vastly more successful.

God Bless,

Hunter Burnett