A conservative case for Donald Trump?
Posted March 13
If you peruse dictionary definitions for the word “conservative,” you’ll encounter other words like “caution,” “moderation” and “conventional.”
Sound like President Donald Trump?
From trigger-happy Twitter tirades to reality-show braggadocio, it's fair to say that the president's persona does not exactly match the dictionary definitions.
And yet there’s a strong conservative case to be made for the newly elected commander-in-chief. In fact he made it during his campaign. It goes something like this: the country is so far adrift from its founding principles that the ship can only be righted by a Captain Ahab, not a mild-mannered midshipman.
However, one need only consult Melville’s novel to grasp the danger of boarding a boat with an Ahab at the helm. But, as Trump’s loyal shipmates argue, ’tis better to go down striving for the White Whale than guaranteeing defeat by never casting a spear.
The sitting president, of course, is not Captain Ahab. And his recent speech to the joint-session of congress proves his ability, when he desires, to bring the nation together under a conservative banner. There are, therefore, sound reasons for conservatives to support the new president.
But the idea that the political right should adopt the tactics of strong-arm activism in order to restore conservative ideals, though something of a hallmark of Trump's campaign, is a path to be avoided. And yet this movement to use non-conservative means to accomplish conservative ends has long percolated as a theoretical possibility among a subculture of the commentariat.
It first gained attention in the mid-1990s when a few legal theorists began confronting the vexing quagmire faced by conservative judges — i.e., strict adherence to conservative jurisprudence such as stare decisis, or deference to precedent, made it almost impossible to combat “bad” precedent already on the books due to liberal “activist” judges.
Some conservatives began to wonder whether their own philosophies made them impotent in the face of unbridled activism.
The easy solution in this scenario would dictate combating liberal judicial activism with a kind of conservative judicial activism. In other words, the theory goes, judges would simply decide cases by whether the ruling advanced conservative policies. Eventually, after restoring conservatism, judges would then resume adherence to stare decisis and originalism unencumbered by bad precedent.
A similar idea has been at play with regard to the executive branch. If conservatives permit the president to assume sweeping executive powers, the thinking goes, he could dismantle the administrative state's regulatory regime and bring back a “conservative” government.
This is undoubtedly a tempting option. It’s even more tempting if one happens to agree with the president's agenda. However, no matter the short-term appeal of such a strategy, over time it will likely corrode our political system and unleash unintended long-term effects.
Consequently, both the executive and judicial branches should avoid strong-arm activism, be it liberal or conservative. It may garner fast victories and ephemeral plaudits from partisans; but, longterm, any wins obtained by means other than the arduous political processes prescribed in our nation’s governing documents will result in a backlash commensurate with escalated levels of partisanship.
In this regard, the costly battles still waged over Roe v. Wade come to mind.
By contrast, if controversial laws go through traditional channels, where they can receive a full bipartisan public vetting, if not approval, the result will usually diminish rancor and division.
So, before conservatives sharpen their spears and board boats of Ahabian-activism, it's worth pausing to remember that there are wiser ways to pursue the White Whale.
Hal Boyd is a student at Yale Law School and co-editor of the forthcoming, Psalms of Nauvoo: Early Mormon Poetry.