Wednesday, April 15, 2020
A correspondent recently reminded me of a 2013 blog post that highlighted a 1992 student note analyzing Justice Brennan's jurisprudence: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (19920.
In this note which is "of a quality that far surpasses most faculty-produced scholarship," Joel Friedlander "applies [Philip] Rieff's theory of kulturkampf to Justice Brennan's jurisprudential transition from Roth to Pacifica." It is an eye-opening exercise.
Perhaps of most relevance to the recent wrangling over Adrian Vermeule's anti-originalist Atlantic essay is Friedlander's description of cultural conservatives engaged in the cultural warfare that encompasses but exceeds "the longstanding jurisprudential debates between origirialism and non-originalism or between natural law and positivism." These cultural conservatives, Friedlander contends, are "largely constrained by their positivism, if not by their originalism."
If Friedlander is correct, then one can understand part of the alarm sounded in response to Vermeule's essay. If the jurisprudential debates are but one component of a broader kulturkampf in which what is at stake is "the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion," then the cultural conservatives' removal of their self-imposed constraint of legal positivism should be of concern to those on the other side from them of this kulturkampf.
Contrary to the framing of both Vermeule's essay and the responses to it, more fundamental than the debate between originalism and nonoriginalism (whatever that is) is a debate between legal positivism and natural law as each is taken to undergird our constitutional order. The problem may be not that we're all originalists now, but that we're all legal positivists now. If that's right, then we can't begin to have the debate we ought to be having.