Last year, Jeffrey Rosen wrote a short essay for the New York Times Magazine on what he called the “radical constitutionalism” of the tea partiers. He claimed that the constitutional positions of Senator Mike Lee of Utah
appear to be inspired by the constitutional guru of the Tea Party movement, W. Cleon Skousen, whose 1981 book, “The 5,000-Year Leap,” argued that the founding fathers rejected collectivist “European” philosophies and instead derived their divinely inspired principles of limited government from fifth-century Anglo-Saxon chieftains, who in turn modeled themselves on the Biblical tribes of ancient Israel.
When I contacted Senator Lee, he denied that Skousen had played anything like the role in his intellectual development that Rosen claimed. “My strong opinions on the constitution were formed many, many years before I ever read a book by Cleon Skousen.”
Rosen has a new article in The New Republic attempting to classify and analyze the types of judicial conservatism visible on the Supreme Court. Skousen makes another appearance.
Thomas cannot really be called a libertarian. Instead, he is the leader of a third faction that has begun to gain prominence in recent years. Call them the legal arm of the Tea Party movement. They combine economic libertarianism—and a willingness to use courts to strike down regulations—with ardent social conservatism and devotion to states’ rights. Much of their philosophy is traceable to W. Cleon Skousen’s book The 5,000 Year Leap, which became the movement’s constitutional bible after receiving an endorsement from Glenn Beck. Skousen’s ideas are a mix of John Birch-era opposition to communism, claims that the Founders were divinely inspired, populist opposition to international elites, and radical support for states’ rights.
If Thomas is “the leader” of a faction whose philosophy is traceable to Skousen, wouldn’t one expect that there would be some direct link between them? Some evidence that Thomas has read a Skousen book, for example, or cited one of his works in one of his many opinions? If any such evidence exists, Rosen doesn’t mention it.
Maybe Skousen was as nutty as Rosen makes him out to be; maybe he wasn’t. I can say that in two decades of spending time with all types of legal conservatives, I have never met anyone as obsessed with Skousen as Rosen is.
"Cleon Skousen"
No disrespect, but, "Who?"
Reply to this commentLinkReport AbuseOk, did a little research. Beck promoted his book recently. I don't listen to talk radio all that much (the building I work in have never had great radio reception).
Reply to this commentLinkReport AbuseLeon WHO? Exactly!
Many conservative constitutional scholars don't need to rely on egg-heads to tell us how to interpret our fundamental charter.
We know certain things to be self-evident:
1) There MUST be an objective source from which jurists discern the state of society's laws.
So, telling us that the Constitution "evolves" is inherently short of the mark, because how are jurists qualified to either know in which direction we've "evolved" or where to look to find out?
Are they taking a cosmic opinion poll, or interpreting law?
2) We know #1 is correct because, to have force of law, the opinion of a jurist must be LEGITIMATE.
And, in the absence of an objective source which forms the basis of one's opinion, the jurist is on a very thin tether, because it is the TEXT of the fundamental charter that gives jurists in our federal system any authority to don their cheap black nylons in the first place.
So, Jeffrey Rosen's view of constitutional interpretation -- that those things not in the Constitution at all are elevated in importance over and above everything the Constitution does indeed say -- fails because it is illegitimate. Courts utilizing this approach, therefore, surrender their legitimacy.
Of course, there are enough philosophy and poly-sci wags who have drizzled into the law for the quasi-legal academy they've spawned to provide cover for these illegitimate jurists.
I'm waiting for something like this on TV:
"Political scientists with an axe to grind, like Jeffrey Rosen, like to advocate the "Roger Taney" approach to Constitutional interpretation: When our fundamental charter does not render the results they want, they compensate by making things up out of thin air, and calling themselves intelligent."
"Intelligence? No, more like audacity."
Reply to this commentLinkReport AbuseIf the "TEXT" of the Constitution can be relied upon to provide a single "objective source" of the truth, how is it possible that conservative jurists reach conflicting conclusions? For that matter, why do we need judges at all if the "TEXT" unambiguously answers all legal questions?
Reply to this commentLinkReport AbuseYou're right!
What was your point?
Reply to this commentLinkReport AbusePut your emotions down. I didn't say text was conclusive in every case.
I said judges need an objective source other than their own opinions.
We can inform our meaning of the text by using the original meaning of the words used. NOT intent of the framers - they didn't ratify the document, they drafted it, and the ratifying conventions are devoid of good records of arguments made.
What did these words mean at the time of their drafting?
Then, if both fall short still, we rely on history and tradition to inform us.
But at no point is a judge free to simply "make it up".
They can run for office for that.
Reply to this commentLinkReport Abuseargued that the founding fathers rejected collectivist “European” philosophies and instead derived their divinely inspired principles of limited government from fifth-century Anglo-Saxon chieftains, who in turn modeled themselves on the Biblical tribes of ancient Israel.
1) I'd be very surprised to find that 5th century Anglo-Saxon cheiftan's had even heard of Christ, much less ancient Isreal.
Reply to this commentLinkReport Abuse2) Is there any evidence that the founding fathers used 5th century anglo-saxon cheiftan's as their model? I could have sworn Jefferson used various "European" philosophers as his inspiration.
3) How can "divinely inspired" be modeled after anyone?
1) I'd be very surprised also.
2) To an extent, yes. It was a common belief among the founders that they were the descendants of Germanic tribesmen who fought against the Roman Empire. Link.
TJ was widely read. Among the many things he studied was the old Anglo-Saxon language.
Reply to this commentLinkReport AbuseAdmitedly my search was short, but the only stuff I have been able to find regarding anglo-saxon political structures was for later periods, mostly 9th century. The 9th century stuff is pretty typical of the early english period. Kings did not command the absolute loyalty of the lesser nobles, but rather earned their support through the doing of favors, gifts, and or marriage. The lesser nobles kept their positions through pretty much the same arrangements.
I just don't see how this structure could have influenced the founding fathers. I don't see any correlation between what they built and 5th to 9th century anglo-saxon politics. I also see no correlation between anglo-saxon's and ancient jewish political structures.
The articles that I skimmed also mentioned that the first Christian missionaries did not go out into anglo-saxon territories until 596, and the conversion to Christianity took until around 650, though much of the conversion was in name only as archealogical evidence for the older religions continues for several hundred years.
Reply to this commentLinkReport AbuseI never said that they based the US federal government on early Anglo-Saxon political structures, or on early Christian or Jewish political ideas. I'm simply pointing out how the typical American of the founding generation saw himself. From the link I gave you but which you seem not to have read -
"It was English history, however, that most Americans studied, and especially the history of the Anglo-Saxons prior to the Norman Conquest. Probably the most widely read author on the subject was, curiously enough, the Frenchman Paul de Rapin-Thoyras, whose five-volume History of England (English translation by Nicholas Tindal, 1732–1747, reissued in part in Boston, 1773) was commonly found in American libraries. Rapin depicted the early Anglo-Saxons as the direct descendants of Tacitus's noble Germans, and carried the English story down to the early eighteenth century."
Whether their understanding of history was accurate or inaccurate is a different question, but the founders do seem to have believed that their lineage extended back through English history to pre-Norman times, and before that to the Germanic tribes which fought with the Roman Empire. It was once widely thought that the "thing", the assembly of the early Germans, was a precursor to representative government.
Reply to this commentLinkReport AbuseWhat makes you think I was disagreeing with you?
Reply to this commentLinkReport AbuseI guess bogeyman might be more appropriate than ghost. I see you say ol' Beck recommended reading his book, but I don't know who he is. One thing though, I'd read it before I took Rosen's opinion of it as gospel. Something tells me this won't catch on as a political talking point, except perhaps with the Matt Damon's of the world and their obscure references.
Reply to this commentLinkReport AbuseJohn Birch-era opposition to communism? What the heck is that link? Are today's liberals following Adolph Hitler era opposition to personal property rights?
Reply to this commentLinkReport AbuseWhy the heck does anyone have to read a book by anyone to have a strong opinion on the constitution?
Reply to this commentLinkReport AbuseThis reminds me of Cass Sunstein's Radical in Robes. Almost the entire premise of the book is based on the notion that conservatives cling to a "constitution in exile" belief, a notion supported by citing one obscure writer than no conservative that I have ever read ever mentioned.
It is fair to say that there are parallels between one person or group or another. The similarities between Rousseau and Jefferson form the core of my dissertation's thesis, and there is no indication that Jefferson ever read much if any of Rousseau. But I would never claim influence where there is none. Very shoddy work from Rosen, but what would one expect?
Reply to this commentLinkReport AbuseI'm going to third the "Who?"
To the extent I have a "Constitutional guru" it would be Robert Bork with Tempting of America. But I don't really need one with Roe v. Wade out there. For pete's sake.
Reply to this commentLinkReport AbuseFifth-century Anglo-Saxon tribal chiefs--Boy the lengths some folks will go to try and make the Tea Party sound like a White Power movement... Sarc Off.
Reply to this commentLinkReport AbuseRosen is typical of liberals who try to assert the hypocrisy, or at lesat intellectual inconsistency, of conservatives: "They combine economic libertarianism—and a willingness to use courts to strike down regulations—with ardent social conservatism and devotion to states’ rights." It's the "they are for judicial restraint except when they're not" accusation.
Perhaps because they are forced to contort themselves into logical pretzels to support the constitutionality of their own positions, Rosen and other liberals are unable to recognize the simplicity of our point of view. And that is that the Constitution is a written document that clearly states what it means and created a government of enumerated powers. Anything outside of those bounds is not authorized by the Constitional (i.e. it's unconstitutional).
Reply to this commentLinkReport AbuseRosen did something quite similar to this by using the "constitution in exile" phrase once (!) used by Judge Douglas Ginsburg in an obscure article and ascribing that view to a wide range of conserative judicial theorists.
As the folks at the Volokh Conspiracy pointed out, they had never seen the "constitution in exile" phrase used anywhere other than that one time by Ginsburg.
And they absolutely never heard or saw it being used among libertarian/conservatives they were familiar with.
Rosen, well, he just made it up.
Reply to this commentLinkReport AbuseIt doesn't have to make sense, the point is to rouse the base. Compare this nonsense to the leftists jihad against the Koch brothers. The idea is to continue the narrative about dangerous right-wing conspiracies. Facts and logic simply get in the way.
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