Abstract
After the U.S. Supreme Court overturned the right to abortion in the Dobbs case, Christian conservatives and the new conservative Supreme court majority seemed united. But a conflict is brewing between “reformist” and “restorationist” wings of judicial conservatism, which could produce radical changes for the court and the nation. Judicial “reformers” seek legal changes within existing doctrines and precedents. For example, Justice Alito’s Dobbs majority opinion accepted other unenumerated constitutional rights, but he said abortion threatened “potential life” in a unique way. “Restorationists,” by contrast, want to return constitutional law to its (largely imagined) Christian founding values by eliminating all contrary doctrines. For example, Justice Thomas’s Dobbs concurrence rejected unenumerated constitutional rights altogether because their discernment relies too much on judicial subjectivity. The roots of this reformist-restorationist divide run deep. Judicial reformism relies on the theory of Legal Positivism, which eschews all judicial value judgments. By contrast, Christian restorationists blame positivism for elevating subjective opinions over objective, unchanging moral norms. They want judges to adhere to those moral norms and abandon any contrary legal doctrines and rights. Christian conservative legal organizations were once content with positivist reformism, because it conferred intellectual respectability on them while still chipping away at ungodly precedents and doctrines. But Christian conservative legal organizations are increasingly abandoning reformism and embracing restorationism in their legal arguments. This Christian restorationist trend, I argue, will increasingly lead to majority opinions rolling back other constitutional rights, such as the right to marry, contracept, and express alternative sexualities and gender expressions.
Presenters
Jason WhiteheadAssociate Professor, Political Science, California State University, Long Beach, California, United States
Details
Presentation Type
Paper Presentation in a Themed Session
Theme
KEYWORDS
Christian Conservatism, American Constitutional Law, Religious Jurisprudence
