Balkinization: The First and Second Founders in Conservative Thought

The First and Second Founders in Conservative Thought

Mark Graber

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

Chief Justice John Robert’s dissenting opinion in Patchak v. Zinke (2018) makes a remarkable claim. The issue in that case was whether Congress could strip federal courts of jurisdiction over cases already pending in those tribunals. The majority relied in part on Ex parte McCardle (1868), which dismissed a case after oral argument but before judgment on the ground that Congress had repealed the federal law granting jurisdiction. Roberts’s dissent in Patchak urged a very narrow reading of McCardle because the Congress that passed the Repealer Act of 1868 was suspect. McCardle, he stated, “cav[ed] to the political dominance of the Radical Republicans.” What is remarkable about this assertion is that the same Republican majority that passed the Repealer Act of 1868 was in large part the Republican majority that framed the Fourteenth Amendment. The acts of early Reconstruction Congresses, from the originalist perspective championed by contemporary conservatives, ought to have special constitutional significance rather than be subject to unique constitutional discounts.

Patchak is but one of many instances when conservatives, conservatives on the Roberts Court in particular, diss the Second Founding in favor of the First Founding. Chief Justice William Howard Taft in Meyers v. United States (1926) claimed that the Supreme Court should not treat as an important precedent the Tenure of Office Act of 1867 because everyone knew Reconstruction was a time in which Republicans were engaged in pure politics. Conservative analysis of the original meaning of constitutional rights provisions discuss at length what the justice believes those clauses meant in 1791, while barely touching on the understanding of the right in 1868, even though in cases involving states the provision the justices are interpreting is the due process clause of the Fourteenth Amendment which was ratified by the Second Founders. Most notoriously, the Supreme Court’s opinion in Shelby County v. Holder (2012) striking down the preclearance formula of the Voting Rights Act devotes considerable energy to determining what equal state sovereignty meant in 1787, ignoring what state sovereignty meant to the framers of the post-Civil War Amendments, who had no constitutional scruples about imposing military rule and martial law in specific states.

Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism provides the intellectual scaffolding for the contemporary conservative celebration of the First Founding and denigration of the Second. Ken Kersch has done a spectacular job documenting conservative constitutional thinking during the second third/third quarter of twentieth century. His remarkably thorough and important work details the many conservative constitutional thinkers who returned to the eighteenth century to find principles that might inspire or guide Americans in the twentieth and now twenty-first century. The literally hundreds of conservative writings discussed, however, find nothing in Reconstruction worthy of contemporary emulation.

The Founders in Conservatives and the Constitution are always the First Founders of 1787. Kersch does a magnificent job detailing the different ways conservatives conceptualized the eighteenth-century founders. They were in some writings free market capitalists committed to property rights. Other conservatives imagined the founders as evangelicals committed to a Protestant revival or Thomists committed to natural law. They were Burkeans committed to political stability and opposed to mass democracy. Conservatives who dispute the principles that animated the founders of the American regime nevertheless agreed who those founders were. They were such persons as George Washington, James Madison, Alexander Hamilton, John Jay, John Marshall and John Witherspoon. All lived in the late eighteenth century. Jefferson is a constitutional founder, even though he did not participate in the framing or ratification debates over what became the Constitution of 1787 and was lukewarm at most to the final product.

Kersch’s conservatives spend no time restoring the Second Founding. A few, most notably, Harry Jaffa, extol Abraham Lincoln as a politician and champion of the natural right to equality under law. Other conservatives during the second third/third quarter of the twentieth century condemned Lincoln for upsetting the First Founding status quo. None bother with John Bingham, Thaddeus Stevens, James Ashley, Charles Sumner or Lyman Trumbull, the persons primarily responsible for the post-Civil War Amendments. Rather, conservatives (and such liberals as John Kennedy) accepted Dunning School history, which regarded Reconstruction as a time when radicals upset the constitution cart by taking revenge on the south and too swiftly granting rights to persons members of that school regarded as ill-prepared by training and race to be American citizens. The First Founding needed to be restored, from this perspective, because of the destructive turn during the Second Founding. This privileging of the First Founding explains why the conservatives Kersch presents and the Roberts Court echo the central themes of Democratic opposition to the Civil Rights Acts of 1866 and 1875. The Democratic motto,“The Constitution as it was,” lived in the twentieth century and lives in the twenty-first century.

The Second Founding that conservatives for almost a hundred years have marginalized and denigrated differs in important ways from the First Founding that conservatives privilege and celebrate. Republicans were more committed to majority rule than Federalists. The Constitution of Thaddeus Stevens is more committed to government power as a means for constructing the good regime than the Constitution of James Madison. Most important, while the Constitution of 1787 seeks to submerge racial issues, the Constitution of 1868 makes the achievement of racial equality a fundamental goal of the American regime. The conservatives Kersch discusses focus on the First Founding rather than the Second because, until very late in the day, achieving racial equality was, to say the least, not a fundamental commitment of American constitutional conservatism.

Conservatives and the Constitution also privileges the First Founding rather than the Second. Kersch’s substantive chapters are “Stories About Markets,” “Stories About Communism,” “Evangelical and Fundamentalist Christian Stories,” and “Right-Wing Roman Catholic Stories.” This mirrors eighteenth century concerns with the merits of a commercial republic, preventing external subversion and the role of religion in the new regime. Consistent with First Founding concerns that disputes over slavery not disrupt national unity, Kersch does not have a chapter entitled “Stories About Race/Racial Hierarchies.” We learn that many conservative thinkers believed in racial hierarchy, but little about the central role race played and plays in conservative constitutional thought. James Kirkpatrick is a federalist who in passing also favors segregation rather than a segregationist who sees federalism as a means for preserving white supremacy in the South. In fairness to Kersch, conservative thinking on civil rights and liberties is slated for a different volume that will presumably highlight the role of racism in Kirkpatrick’s thought and in other conservative thinking at the time when the Supreme Court was deciding Brown v. Board of Education.

Leaving race to a separate volume may nevertheless be a mistake. Racial hierarchy was as foundational to conservativism during the middle third/third quarter of the twentieth century as markets, communism and religion. Race is omnipresent in conservative constitutional thought, even when racial equality is not the explicit subject of conversation. Conservatives expressed strong opposition to liberal judicial activism only after judges protected the rights of persons of color. Conservative attacks on welfare benefits that are perceived as targeted to African-Americans have always been more intense than conservative attacks on tax benefits that disproportionately go to white businessmen. Many Protestant private schools that became central to conservative politics were founded to avoid desegregated public schools. Even conservatives who were not racial bigots did not devote themselves to the cause of racial justice during the 1940s and 1950s. One suspects that Kersch will make more in royalties on Conservatives and the Constitution than the conservatives he mentioned contributed to the NAACP Legal Defense Fund or allied organizations during the campaign against segregated schools.

Status hierarchies were constitutive of conservative thinking during the second third/third quarter of the twentieth century. The conservatives Kersch writes about were male supremacists. The conservative capture of the Republican Party in 1980 was highlighted by the decision to remove support for the Equal Rights Amendment from the GOP’s platform. Conservatives have historically insisted that voting and related rights depend on property and education. Many thinkers presented in Conservatives and the Constitution celebrated the United States as a Protestant country, insisting that both immigration and educational policy be devoting to keeping America Christian, and that reproductive policy favor conservative Christian notions of marriage and sexuality.

Conservative thinking about the post-Civil War Amendments, race and status hierarchies casts doubt on Kersch’s claim that one historical marker of conservatism is opposition to social planning. Slavery was a system of social planning. So is segregation. Maintaining separate spheres, inculcating Protestant moral virtues, policing sexual mores and keeping the poor from voting booths all require extensive social planning and regulation. A fair claim can be made that much, though certainly not all, liberal social planning and regulation is motivated by efforts to dismantle the status hierarchies put in place by conservative social planning and regulation.

This history of conservative social planning raises fundamental questions about claimed conservative opposition to social planning and regulation at present. That opposition might be rooted in sincere beliefs about spontaneous ordering and the virtues of individualism. The timing of the conservative switch from opposition to Brown to opposition to affirmative action, however, suggests that much conservative opposition to liberal social planning is based on the belief that limiting liberal social planning aimed at promoting racial equality is the second best means for preserving racial hierarchies in a regime in which more direct measures to achieve white supremacy have been publicly discredited.

Posted 9:30 AM by Mark Graber [link]