The Rise of the Conservative Legal Movement

By Steven M. Teles
Princeton University Press, 358 Pages
$35, hardcover

Reviwed by Timothy Sandefur

Lawyers fill an important role in American democracy, as the conduit for transmitting social mores from the nation's elite to the people, and vice versa. How they do this is something sociologists have spent relatively little time researching, but Steven M. Teles has taken a step to remedy this by producing an engaging, insightful, and remarkably objective analysis of how the climate of legal ideas actually changes. His book is neither history nor polemic, but a scholarly study of how an ideological minority organized, despite overwhelming hostility, into an effective (if still minority) force against the prevailing orthodoxy.

As Teles describes it, the conservative public-interest movement began in the 1970s with the founding of the Pacific Legal Foundation, in response to inroads made by leftist lawyers in the era following Brown v. Board of Education. By the end of the decade, conservatives realized they had made some important mistakes, which took more than a decade to correct. One major error was the movement's close ties to business interests with short attention spans and an addiction to corporate welfare. Conservative foundations had a hard time standing for their principles when their major donors were hungry for subsidies from the same big government they professed to despise. This opportunism by business has handicapped the cause of economic freedom since the days of Karl Marx, and the conservative legal movement escaped it only by cultivating an intellectual and philanthropic constituency willing to go the distance for a cause. Thus, Teles concludes, "strategic necessity" compelled "conservatives who genuinely believed in a vigorous role for the courts and the moral idea of civil rights" to "draft the conservative legal movement in their direction."

Though there is much truth in this account, it suffers from one significant flaw, which begins with Teles's faulty terminology. Although he de-scribes the object of his study as the "conservative legal movement," he groups conservatives with libertarians, sometimes employing the oxymoron "libertarian conservatives," first coined by Frank Meyer. But libertarianism was and remains a variety of liberalism, not of conservatism, and its alliance with conservatism in the Goldwater and Reagan eras was a historical accident. Libertarianism is a form of liberalism that seeks to free individuals from constraints imposed by the state, so that they can exercise their economic, as well as their expressive or religious, liberty. Fundamentally, it has little in common with conservatism, the organizing premise of which is to preserve the social order against the corrosive effects of individual choice and revisionist government programs.

By the beginning of the 20th century, modern liberals had abandoned the ideal of economic freedom, believing that only redistributive programs could make people "really free," and in the process they almost entirely excluded the true free-market believers from the orbit of intellectual respectability. But this was because their pro-market cousins failed to articulate a philosophically rigorous defense of economic liberty. For the most part, the market's defenders settled for promising voters watered-down versions of welfare statism, or reciting slogans about individualist traditions.

The past 40 years, however, have seen a reinvigoration of the original liberalism, as philosophers, historians, economists, and lawyers have elaborated an intellectually respectable case for long-shunned rights such as liberty of contract and private property. The generation of attorneys raised on these ideas are not conservatives, but idealistic, market-oriented liberals who are opposed to distinctively conservative views on matters such as gay rights, abortion, or the drug war. They simply believe that the courts should protect both personal and economic rights. Teles, though, is wrong to say that "the shift of conservative public interest law to libertarianism, therefore, can be understood as an endogenous adaptation to legal liberalism's transformation of American law." On the contrary, by grouping libertarians with conservatives, Teles blinds himself to the real reason many of us joined the movement to begin with.

Notwithstanding this flaw, Teles's book is an important and persuasive account of the growth and success of a corps of intellectuals who are challenging the hegemony of big government in American society. The conservative and libertarian legal movements are proving that when armed with the right ideas, lawyers can also stand up for independence in the face of a legal establishment that for generations has ignored or helped to weaken some of the basic elements of freedom.

Timothy Sandefur is a senior staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006).

---