Balkinization: Scary Stories: Kersch on Conservatism

Scary Stories: Kersch on Conservatism

Andrew Koppelman

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).

With the departure of Anthony Kennedy and the arrival of the Trump appointees, the Supreme Court may be inaugurating a new order in which women are forced to have babies, the state sponsors majoritarian religion, and regulation is hamstrung, giving businesses competitive incentives to pollute and defraud their customers. Ken Kersch’s Conservatives and the Constitution suggests that this transformation has deep roots in the right wing intellectual movements of the mid-twentieth century.

Kersch tells a scary story, with the various strands of conservative extremism coming together into a rough beast whose hour is come round at last. The general purport is to warn us about the looming danger.

But the book also shows some political opportunities for the left – opportunities that Kersch doesn’t explore.

Kersch nicely anatomizes “the deep stories that conservative Roman Catholics, Evangelical and Fundamentalist Christians, Straussians, and other conservative constitutional theories have told across the entire postwar period about the nation’s political and constitutional trajectory.” (382) All had in common a radical discontent with the world that was coming into being, and a political vision of an America with far less intervention in the economy and a far greater role for traditional religious moralism. That political vision was sometimes understood in constitutional terms, making the New Deal constitutional dispensation a betrayal of the country’s fundamental commitments. (My friend Gary Lawson reaches his small-state constitutional commitments without relying on those predecessors, but there’s a reason why there’s an audience predisposed to like what he says.) These groups, with their wildly divergent narratives, eventually managed to “imagine themselves as part of a coherent community and identity, pursuing a common political (and constitutional) cause.” (x)

Some prominent conservative constitutionalists, such as Antonin Scalia and Robert Bork, emphasized judicial restraint. But Kersch shows that there have always been major strands of conservative thought that demand a far more vigorous judicial role. This shadow constitutionalism has “underwritten increasingly vigorous challenges to New Deal/Rights Revolution constitutional understandings, including radical challenges to the entire ‘administrative state’ and to long-settled understandings of the substance of constitutional rights.” (363)

What shall we do with this news?

The Republican Party has, under Trump, become even worse than it was before: plutocracy, climate change denial, and indifference to the abuse of private power has now been joined with racism, xenophobia, Islamophobia, mendacity, corruption, and a bizarre friendliness toward Vladimir Putin. Breaking its power is a matter of moral urgency. But it is also urgent to help shape a new, more responsible conservatism.

Part of the value of Kersch’s book is to show the extent to which that has already happened. In some important respects, the left converted its adversary. Kersch recounts how the struggle over racial equality was fought out among conservative intellectuals, between Harry Jaffa, who defended Lincoln’s natural rights egalitarianism, and neo-Confederate traditionalists such as Willmoore Kendall and Charles Kesler. Even the most prominent conservatives were willing to say things that are beyond the pale today. Here’s a detail Kersch doesn’t mention: in 1957, William F. Buckley wrote that the Southern white community was “entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically,” because “for the time being, it is the advanced race.” The denial of voting rights was legitimate because “the claims of civilization supersede those of universal suffrage,” and that if that community “cannot prevail except by violence, it must determine whether the prevalence of its will is worth the terrible price of violence.” (Kevin M. Schultz, Buckley and Mailer, 119.) Not even Steve King goes that far today. Antiracism is now part of the identity of much of the modern American right, although, as Kersch observes, it “seems to strangely co-exist with a palpable indifference to the concerns of contemporary African-Americans on issues such as the carceral state, police brutality, voting rights, and the racism of President Trump.” (369)

There has been progress on other fronts. Same-sex marriage is now embraced even among evangelicals, particularly the younger ones. There is still some grumpiness about pornography, but no more serious proposals to censor the internet. Ronald Reagan was blankly indifferent to the AIDS epidemic. George W. Bush committed billions to fighting it in Africa.

Politics in a democracy is often about trying to split off pieces of the opposing coalition, to carve away pieces of the other side’s majority in order to build one’s own. So opponents of the present Republican coalition ought to ask, are there elements that can be lured away? Elements that we can work with?

One way of peeling off votes is transactional, appealing to interests that the other side is neglecting. But another is to appeal to ideals. Some of the idealisms that Kersch describes present such opportunities.

Consider, for example, the admiration for free markets and the yearning for a more Christian politics.

Kersch traces the origins of modern market ideology in Friedrich Hayek’s 1944 book The Road to Serfdom and Lewis Powell’s 1971 memo to the Chamber of Commerce. Both are remembered as harbingers of antiregulatory market fundamentalism. If you actually read them, both are pretty innocuous, defending capitalism against the proponents of central economic planning. There’s nothing in either that Elizabeth Warren couldn’t endorse.

In the Trump Administration, what was once the Republicans’ legitimate concern about clumsy and inefficient regulation has become a zeal to support business at every opportunity, even when business wants to hurt people. This is not free market ideology. An indispensable condition of “the usefulness of the system of competition and private property,” Hayek wrote, is “that the owner benefits from all the useful services rendered by his property and suffers for all the damages caused to others by its use.” The Road to Serfdom, 38. Honest proponents of free markets think that environmental externalities, such as climate change, demand a response from the state.

There’s a similar instability in conservative Christianity’s embrace of Trump. You need to do a job on Christianity in order to make it fit with his gleeful cruelty, and even more of a job to make it embrace him personally. If Christianity has a core ethic, it is that it sides with the oppressed against the oppressor, with the weak against the strong: “whatever you did for one of the least of these brothers and sisters of mine, you did for me.” The Democrats, increasingly reliant on secular voters, have been increasingly disinclined to exploit this. Hillary Clinton was never going to win the white evangelical vote, but had she merely replicated Obama’s minority share of it, she would be President.

The religious appear in the book as various sorts of fanatic and crank. If history shows anything, though, it is that in this country the secular left can accomplish little without religious allies. Such alliances produced abolitionism, the Social Gospel movement, Catholics in the New Deal, the civil rights movement, opposition to the Vietnam war. Militant atheism in contemporary America mistakes an historical blip – the emergence of the religious right in the 1980 election - for a permanent feature of the political world. Kersch isn’t guilty of that, but his focus on incipient theocrats can easily leave the wrong impression.

The left needs not only to mobilize our voters, but to figure out ways to poach on theirs, learning what they care about and looking for ways to decently deliver some of it to them.

A deep challenge of modern polarized politics is to tell a story of who Americans are in which each faction can recognize itself and see a home for itself. As this is written, there’s a nasty fight going on among conservative intellectuals, between the theocrats and the classical liberals. One reaches in desperation for Trump. The other recoils from him with revulsion.

The left should notice who its potential friends are. We need to talk.

Posted 9:30 AM by Andrew Koppelman [link]