Chapter 2

Home Front

This essay is a review of:

Neoconservative Politics and the Supreme Court: Law, Power, and Democracy

by Stephen M. Faldman

The Fight for the Common Good
by Abhinav Kondaji

“Awareness of the past can liberate us from the past”1. This very quote by Stephen M. Feldman, from his book “Neoconservative Politics and the Supreme Court”, sums up the leading goals aspired by the neoconservatives in the 1980s to achieve the “perfect moral order”26 and eventually counter the new pluralist government that dominated America. With most of their roots held deep in the 1930s leading all the way up to the 1990s, these “neocons” had great influence on American perspective and legislation, through their rejection of the 1930s New Deal, their hatred of the uprising counterculture of the ‘60s, their battle against pluralists, and mostly through their dominance of the Supreme Court in the ‘80s and beyond. Although this neoconservative movement failed to reach its complete fruition, it did bring rise to a strong new opposition in American politics and transformed the radical right wing.

The values held by the New Right originated in the Constitution itself. Ever since the framing in 1776, America enforced the importance of common good. But this system, known as republican democracy, depended heavily on the existence of a homogenous population which, by the 1920s, had disappeared due to consistent urbanization, immigration, and industrialization. So because of this disappearance of republican democracy, the neocons rose in the 1920s and ‘30s and were known as the Trotskyites and the Stalinists. The Trotskyites held deep hatred for the U.S.S.R. while the Stalinists supported the Soviets. The Trotskyites were responsible for the origins of neoconservatism and also the first to oppose communist sentiments. But a main detail about these early neocons is that they were all Democratic and very liberal. But the more the government started getting involved in the economy and the lives of citizens, the more the neocons, led by leaders such as Irving Kristol, shifted to the right. This was due to their abhorrence of programs such as the New Deal and LBJ’s Great Society. A particular idea held by FDR that the neocons resented was his stance against the “republican democratic assumption that the government could not infringe on individual rights and liberties unless acting for the common good”3. Having no political power the neocons pursued to discover a new foundation led by Leo Strauss. Strauss believed that the government should aim for “common good”, which favored Protestant white males. Having created a foundation they found their leadership in the charismatic president, Ronald Reagan, the hero of the New Right. This allowed neocons to gain “official positions of political power”4 and finally “revive” America.

The goals of the neocons were more liberal than those of the old left, mainly when it came to foreign policy. Although they despised detente, they still had a peaceful foreign policy, with Reagan visiting China and also sending a message to Gorbachev to tear down the Berlin Wall. For such acts, the “paleos”, as the members of the old right were called, claimed neocons as “not being truly conservative at all”5. The neocons called their criticism a disillusioned ideal of 1920s nativism mixed with isolationism. But still, the neocons stood against the U.S.S.R. as Kristol proposed to expand the defense budget  by gaining support from citizens by reminding them of the importance of military power. Reagan followed these steps and ignited a “massive arms build up to increase American threat”6 beginning in 1983 and boasted not only an “American victory” but also a victory of neoconservative views. The neocons also opposed the counterculture movement. The neocons were appalled by the protests of students in the 1960s when students rejected the Great Books and despised the authors as “dead white European males”7. The neocons were enraged by the insults against their foundations and in the future and would go on to battle this generation of youth once again in regard to abortion and homosexuality. The neocons also desired a stable religious value system. A prominent neocon, Daniel Bell, concluded that America “[was] left in shambles of appetite and self-interest”8 without religion. They were so obsessed with such a value system that they even stated that older women who were “divorced or widowed or abandoned by their husbands but still frequently followed ‘family values’... should be eligible for welfare” while young unmarried women “who permit themselves to get pregnant”9 did not have proper values and therefore did not deserve  welfare because, apparently, they viewed motherhood as a joke. Lastly, they also rejected interest groups. The new left supported individualism and was determined not to influence ideas held dear by citizens. But the neocons saw corruption within this system. They noticed that “corporations exercise control over ‘highly managed elections’ and strongly influence government between elections”10. They called this system “Democracy, Inc.”.

As Feldman says, Alexander Hamilton “disparaged the judiciary as the ‘least dangerous’ branch” but yet could “brandish authority over the entire governmental system”11. Meese, one of Reagan’s supporters and appointees, claimed the branch to “greatly affect the public policy realm”12. With increasing political power the neocons wielded their originalism in the court using the constitution to their discretion. For example, in District of Columbia v. Heller, neoconservative justice Scalia used the second amendment to go against the “restriction of handgun possession”13. The neocons also went against the first amendment in the 1986 Bethel School District v. Fraser when a high school student was suspended for delivering an offensive speech at school. The neoconservative court rejected the student’s right to expression, more likely due to their bias against the offensive youth of the countercultured America than justice. Another case in 1986 known as the Bowers v. Hardwick occurred when a homosexual man was denied from performing sodomy on his private property, again due to bias. Feldman believes that neocons “will almost certainly continue to exercise substantial control over legal and political developments”14.  Their resistance against the pluralist democracy seems undefeated as Feldman points out that “from 1995 to 2001 alone, the court struck down 30 federal laws”15, more than any any court in the 20th century.

The successes of the neoconservative movement have deeply impacted the American society. Feldman witnessed that the neocons “largely dominated American politics for more than twenty-five years”16. They took increasing political positions and took control over Republican policies ever since. They were also determined to gain public support for their “lost foundational values” through “journals like The Public Interest and Commentary”17. But their failures overshadow their achievements. As Feldman states, “regardless of neoconservative arguments, republican democracy no longer fit the American society and culture”18. The neocons were under the illusion that even with the increased diversity of the population, they still could find a “common good”. Such ideas gave them less support along with their restrictions on homosexuality and abortion. Backward views represent the failure of this movement yet the neocons achieved political gains through their increasing number of seats in the Supreme Court.

Stephen M. Feldman aims to give an in-depth history on the neoconservative views and beliefs. Having explained their beliefs, he shows how these views affected multiple court decisions and will do so for upcoming years. Although he attempts to write from a neoconservative view, he supports pluralist democracy as can be seen in the quote where he says “under the new pluralist democracy, the individual’s goal, it appeared was to participate in politics: to express one’s values and interest”19 while repudiating neocons as being blind and that the “reality was more heterogenous than ever before”20. At the end of the book, Feldman states that the progressive justices will end up “persistently dissenting against powerful opponents”21, the opponents being neocons. He infers that although the neoconservative approach is too radical for this time period, they will continue to hold at least some power over prominent decisions in court.

Feldman is a distinguished professor of law at the University of Wyoming, which explains his priorities in explaining the neocons’ power coming from court and not elsewhere. His other books such as “Expression and Democracy in America” or “Thought from Premodernism to Postmodernism” indicate his fairly liberal standpoint. But still, he has written books such as  “Law and Religion” which explains his ways of looking at both sides instead of showing a great bias towards another. He chooses topics, ones that he may not support, yet tries to perceive them in order to give his audience a clear understanding of both sides.  Not much else is noted on Feldman but his background in law27 is enough to explain his concerns on the neoconservative dominance in the past years. Having published in 2013, Feldman has a great amount of knowledge on the neoconservative legacy after the ‘80s which allows him to see how effectiveness of the neoconservative policy, giving him an edge over earlier authors from the 90s.

A professor of political science, Joseph Mello, from DePaul University reviews Feldman as being”compelling and insightful”.  He grants Feldman the success of doing a good job explaining the views of the neocons. But Mello argues Feldman’s view on the Roberts’ court being neoconservative due to their more liberal decisions. Mello also criticizes Feldman’s ability to actually show the impact of the Supreme Court. He continues to argue that “while neocons have had some victories, big wins continue to elude them” while Feldman states that they would “steer the court in the foreseeable future”22. The critic believes that Feldman overestimates the neoconservative power and that they “never had a majority in Court”. Although Mello does express the book’s failure, he supports Feldman’s concept on how the neocons failed to see the heterogenous population and that republican democracy would not be possible. He goes on to state that Feldman “provides a fair analysis of neoconservative ideology without editorializing”.

The neoconservative movement as a whole seems to be filled to the brim with inadequate ideas. Republican democracy is impossible in the current century. The population is more heterogenous than ever with respect for individuality on the rise. The society among which the Constitution was made was homogenous and mostly agrarian which explains the successes of republican democracy. But, “by 1915, the population had soared to more than 100 million. Much of this increase arose because of immigration”23 which meant that America was much more diverse than before. They were also heavily biased towards their backward values. As stated earlier, young women who are impregnated and left without a husband need welfare. It’s not a fair accusation to assume that they saw parenting as “fun”. Feldman expresses FDR’s importance on relativism which the neocons also rejected. He states “all values, all interests- or at least plurality of values and interest- mattered to Roosevelt”24 which speaks for FDR’s success in office. Originalism is flawed due to its lack of flexibility with the people’s interests. Feldman reinforces, “the government could no longer be limited to pursuing some conception of common good”25. Admittedly they had great influence over decisions. Their attempts at helping their common good came to fruition at times. But although successful in court, this by no means proves support for their actions as the election of a democrat immediately followed, thus showing the lack of public support they had despite of their political successes.

Feldman supports the rise of a new right heavily due to his detailed views on the successes of the neocons. He titles the ‘80s the flourishing decade of neoconservatism with Reagan as the genuine neoconservative leader. Feldman also shows that the neocons took power in the ‘80s, despite previous failures as a result of their relatively split party. Another immediate motive was the counterculture movement and the “sick society” along with the the new left rising to power. The ‘80s began the new right we see to this day through rejection of abortion, homosexuality and other ideas supported by liberals. Although the book fails to show social or economic gains, it delves into the political changes in the ‘80s and beyond. Reagan filling the seats in court with neocons greatly affected political decisions and gave the neoconservatives many opportunities to influence the society as a whole.

The neoconservative movement changed the political spectrum with increasing opposition. Although foolish in their endeavors, the movement had much success with achieving political influence and power.  

1. Feldman, Stephen. Neoconservative Politics and the Supreme Court. New York and London: NYU Press, 2013. 24.

2. Feldman, Stephen. 47.

3. Feldman, Stephen. 19.

4. Feldman, Stephen. 53.

5. Feldman, Stephen. 4.

6. Feldman, Stephen. 65.

7. Feldman, Stephen. 49.

8. Feldman, Stephen. 58.

9. Feldman, Stephen. 63.

10. Feldman, Stephen. 33.

11. Feldman, Stephen. 93.

12. Feldman, Stephen. 95.

13. Feldman, Stephen. 99.

14. Feldman, Stephen. 171.

15. Feldman, Stephen. 107.

16. Feldman, Stephen. 85.

17. Feldman, Stephen. 86.

18. Feldman, Stephen. 88.

19. Feldman, Stephen. 19.

20. Feldman, Stephen. 16.

21. Feldman, Stephen. 171.

22. Feldman, Stephen. 3.

23. Feldman, Stephen. 12.

24. Feldman, Stephen. 17.

25. Feldman, Stephen. 18.

26. Feldman, Stephen. 27.

27. Feldman, Stephen. 226.