Why Ken Kersch's Book is an Indispensable revelation about our constitutional situation

Sandy Levinson

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).
I am delighted to have this opportunity to praise and begin to assess the importance of Ken Kersch's truly remarkable book Conservatives and the Constitution.  I would place it in the same category as Jonathan Gienapp's equally remarkable book The Second Creation:  Fixing the American Constitution in the Founding Era, also the subject of an extended Balkinization symposium.  That is, anyone within the scholarly community who has an interest in the broad topics of the respective books, the American founding in the case of Gienapp, the foundations and presuppositions of "conservative constitutionalism" in the case of Kersch, must read these books or else be deemed functionally illiterate.  It is not that one must agree with every one of the arguments presented by these truly transformational scholars.  Rather, each is an historical archeologist who brings forth new information and perspectives that challenge all sorts of conventional wisdoms and, therefore, must be confronted by those who profess to be truly competent with regard to the issues under discussion.

So what is the subject of Kersch's book?  It is important to look carefully at the subtitle that follows the colon after Conservatives and the Constitution:  Imagining Constitutional Restoration in the Heyday of American Liberalism.  That is, Kersch is not focusing on contemporary 21st century conservatives and their particular takes on constitutional interpretation.  Instead, he is focusing on debates conducted among opponents of the liberal consensus that were dominant during the "heyday of American liberalism," the period between World War II and the election of Ronald Reagan in 1980 that indeed helped to effectuate a sea-change in American politics.  This included, of course,  debates about and within our peculiar legal/political institution called the American Supreme Court.


A crucial feature of the pre-Reagan Era debate, as Kersch amply demonstrates, is that most of it was conducted well outside the legal academy in particular and even the broader academy more generally.  The legal academy, for better or worse, was dominated by liberals; defenders of the Old Order represented, say, by the attack on the New Deal leveled by the Supreme Court were by-and-large absent.  There were, to be sure, critics of the Warren  Court, but the most important of these critics were themselves New Deal adherents of Felix Frankfurter, who had spent almost all of his academic career at Harvard defending Oliver Wendell Holmes and railing against what came to be called "judicial activism."  The Lochner dissent became anthematic for scholars like Philip Aurland, who published what was perhaps the most vitriolic attack on the Warren Court as the "Foreword" to the annual review of the prior Supreme Court term in the November 1963 issue issue the Harvard Law Review.  Popular sovereignty meant, as Holmes argued, that even "tyrannical" laws should be upheld if they represented the wishes of legislative majorities.  See, e.g., Frankfurter's opinions first in Gobitis and then his angry and anguished dissent in Barnette that helped to establish the split within liberalism between those who believed in "judicial restraint" and those who were beginning to rally around what came to be called "Footnote 4" liberalism instantiated in such decisions as Brown and then, perhaps most strikingly, Baker v. Carr, which, it has been suggested, helped to trigger Frankfurter's stroke and retirement from the Court.

The crucial point is that Kersch has almost nothing to say about these debates, other than noting that it is an important category mistake to view Kurland, Herbert Wechsler, or Alexander Bickel as "conservatives," unless that is simply used to refer to anyone who expressed doubts about exercises of judicial power by the Warren Court.  But, crucially, none of these worthies ever expressed the slightest doubt about, say, expansive interpretations of congressional power under the Commerce Clause.   Judicial deference to legislatures remained the order of the day, not only as an abstract proposition, but also because of what continued to be, within the legal academy, faith in the New Deal program of strong national power and increasing de facto rule by technocrats located within the vast array of the exponentially developing modern administrative state.  There were, to be sure, some gadflies, such as Richard Epstein at the University of Chicago who denounced the New Deal in root and branch, as well as Gary Lawson and Randy Barnett, all of whom conveyed a distinctly libertarian sensibility.  But they were anomalies within the legal academy.   (And, of course, they became prominent only after 1980.)    

But there were many other "real conservatives" who were alive and well during the pre-Reagan  period, even if, as Kersch demonstrates, they were generally ignored by those within the academy because they (the conservatives) often did not possess the requisite academic credentials or were trying to embed their analyses of law within other perspectives, including economics, ancient political philosophy, and even religion.  It is telling that Gary Lawson, in his own remarkable response to Kersch, in effect reflects the chasm between the academy and the conservatives treated by Kersch inasmuch as Lawson unabashedly admits to his own ignorance of many, perhaps even most, of the figures exhumed by Kersch.  Lawson is a libertarian devotee of Ayn Rand, who, to be sure, figures in Kersch's book.  But she is treated as only a peripheral member of the most serious conservative conversational salon for the simple reason that she was an atheist committed to what non-Radians would term a parody of "economic man (or woman)" devoted only to maximizing one's own selfish desires. As Kersch notes, the statement by Margaret Thatcher that there is no such think as "society"-there are only individuals--is highly Radian and antithetical to many who would properly be thought "conservative," such as, for example, the social theorist Robert Lisbet.   Perhaps the most fundamental contribution made by Kersch is emphasizing the degree to which understanding "conservative constitutionalism," both half a century ago and even now, requires a genuine understanding of, and intellectual confrontation with, a number of figures, including those from religious communities, who are indeed unknown to most of us.

In Kersch's account, Robert George and, especially, Francis Schaeffer, are far more important than, say, Robert Bork or even Antonin Scalia, who were, as is true of most professional legal academics, obsessed with techniques of legal interpretation, including, of course, "originalism," which most of "us" tend now to identify as a defining trait of conservatism.  Kersch valuably notes that this was certainly not true during the formative period he is interested in.  There were many conservatives who were more than willing to criticize the notion that we should necessarily be dominated by a set of views articulated in 1787, especially since, it should be noted, "originalist" arguments were most likely to be made by Justice Hugo Black in order to defend, say, the rights of pornographers and others to be free from any kind of legal constraints.  But most of the figures treated by Kersch were obsessed with something far more important than mandarin techniques of "constitutional interpretation."  Instead, they were more interested in defining, and then maintaining, what might be termed a "constitutional culture" conducive to protecting what was most worth cherishing in the American polity.  Much conservatism, then and now, was fixated on what was viewed as the genuine decadence of American political culture and what it would take to prevent terminal decline.

There were vigorous debates about this, some of them conducted by devotees of academics (though not within the legal academy) such as Leo Strauss,  Harry Jaffa, Walter Berns, or the more esoteric Eric Voeglin. (No doubt someone will write an essay some day on the fact that Clarence Thomas, as noted by Mark Tushnet, was very much influenced by Jaffa and other West Coast Straussians, whereas Scalia (and Bork) were no far more under the sway of East Coast Straussian Walter Berns, who was, I believe, part of a regular poker party that Scalia participated in.)  But, as already suggested, many of the most important figures come from the world of religion, notoriously underrepresented in the almost completely secular elite egal academy.  Kersch restores such figures as Bishop Fulton Sheen, the first "TV clergyman," Jewish sociologist-theologian Will Herberg, and most importantly, Francis Schaeffer, to their places of justified importance (and, therefore, underscores the appalling ignorance of many secularists about the actualities of American political culture).

Kersch describes Schaeffer as "the seminal theorist and intellectual strategist responsible for the establishment of the Religious Right, and of its integration as a core constituency of the modern Republican Party" (p. 236).  Who knew?  (Certainly not Gary Lawson and, equally, almost every one of Lawson's liberal antagonists,)  One thinks in this respect of the Israeli David Ben-Gurion, whose willingness to compromise with Orthodox Jews at the time of Israeli independence in 1948 was based on his misperception that Orthodoxy was in terminal decline and could--like the Amish in this country, perhaps--be tolerated by a benevolent secular majority that correctly did not view them as a genuine threat to their hegemony.  Ben-Gurion was disastrously mistaken, as were those of us who believed that religion was a declining force in American life.  Although Schaeffer was vehemently anti-Catholic, he shared on important meta-view with some Catholics, which is the desirability of an "integral" connection between church and state, for the simple reason that it is only God's sovereignty that in fact legitimizes the State, and, therefore, it is the duty of the state to adhere to Divine Command.  "Humanism," which is defined as placing human beings "at the center of all things," is heretical, symbolizing the various sins of arrogance, pride, selfishness, and egotism. (So much for Ayn Rand!)

What one must realize is that for many of Kersch's conservatives, the American constitutional order, if it is to be thought legitimate, must rest on a foundation of "God's written law."  In "content and authority . . . neither church [i.e., the Catholic Church] nor state were equal to, let alone above, . . . the content of God's Law" (p. 261).  Thus the importance of Samuel Rutherford's 1644 tract Lex Rex, which Schaeffer (bizarrely) placed at the center of the American legal and political tradition.  An important aspect of Kersch's project is to recapture the "stories" and "narratives" that various groups tell in order to understand the American story and then their own places within it.  God-talk is central to some of these narratives, whatever may be the case for God-talk rejecting secularists (like myself).  It is this difference, both in the United States and abroad, that constitutes the true "culture-war" between liberals and many conservatives who are not at all the secularists with whom Lawson identifies.  When leaders of Hungary and Poland proclaim their desire to "reChristianize" Europe, we should listen carefully (and, I think, be appalled).  They are not the kinds of "conservatives" truly at home with Rand or even Hayek, and other individualist critics of overreaching government.  I had no idea until reading Kersch that Brent Bozell (William F. Buckley's brother-in-law) emigrated from the United States to Franco's Spain in rebellion against the truly unacceptable American political/constituitonal order.  Perhaps because it occurred beyond his central period, Kersch fails to mention the famous symposium in First Things, an important journal founded by Lutheran-turned-Catholic Richard John Neuhaus, in which a number of prominent conservative intellectuals raised serious questions about their continued loyalty to the American constitutional order so long as it included Roe v. Wade and the protection of abortion.  But the point should be clear:  It is a mistake to assume that all "conservatives" are mindless patriots, particularly if they seriously believe that all states, including the United States, are ultimately under God's judgment and sovereignty.

One may be tempted to dismiss all of this as an alternative (and crazy) universe, but it is to Kersch's immense credit not only that he has read all of the relevant books, totally unknown to the vast majority of his likely readers, but also places them within a narrative that accounts for their importance within the contemporary American Right.  But, of course, it's not only quintessential Protestants like Schaeffer--who nonetheless make a certain kind of peace with the despised Catholic Church, but also Catholics like Sheen and, more importantly, Robert George who must be read and understood.  Indeed, Kersch's footnotes make clear the true importance of George in understanding contemporary conservatism, not least because of his indefatigable energies as an institutional entrepreneur of the highest order, but also because those energies are merely the complement to a truly formidable intellect and gracious persona that makes it possible for me to acknowledge him as a genuine friend in spite of our obvious differences.  (It is, incidentally, much to the credit of the Cambridge Press that they placed the footnotes at the bottom of the page instead of at the end.  Many of the footnotes end up being mini-essays of their own that provide their own illuminations.)

As some Protestants concede, Catholics have historically been far more intellectually rigorous in the realms of political and legal philosophy, and George has been an absolutely key figure, along with Oxford and Notre Dame philosopher John Finnis in restoring the emphasis on "natural law."  And he has also been an important influence on leading certain influential conservatives to convert to Roman Catholicism, such as Hadley Arkes, an admirer of George Sutherland who, perhaps more importantly, is a zealous opponent of abortion.  Although it is thought tactless to mention such things, it may be at least as important that the majority of the current Supreme Court consists of four Catholics and a Catholic who converted, for unknown reasons, to Episcopalianism (Gorsuch), as that they are simply Republicans.  The Court has almost nothing to say about free trade or climate change.  But a central issue in the quite foreseeable future may well be not whether "sovereign states" are allowed to have their own policies concerning abortion--the terms of the "liberal" and "conservative" debate for the past forty years--but, instead, whether fetuses will indeed be treated as "persons" under the Fourteenth Amendment who are therefore to be protected, under basic principles of equal protection, from being subject to murder by their antagonists (including the mothers who are carrying them).  Anyone who believes that Scalian regard for federalism (assuming he was truly sincere on this, which is quite a different issue) will continue to dominate the debate into the future is simply not paying attention (or is willfully remaining ignorant of the treasure trove that is Kersch's book).  This, for example, may well be what underlies the zeal of many Republican conservatives, including, apparently, George, to place Amy Comey Barrett, another conservative Catholic, on the Supreme Court.

I could go on and on.  The central point, though, is that Kersch's book not only must be read by anyone who claims to be a serious analyst of American constitutional thought (in its broad even if not necessarily its most mandarin sense instantiated in the legal academy); it should also be the subject of full-semester seminars that actually read the esoteric authors and their books and articles he is bringing to our attention and then discuss them.  Incidentally, Kersch announces that this is only the first volume of an intended trilogy of books on the genealogy (and, presumably, present reality) of American constitutional conservatism.  The other two will focus more on specific constitutional controversies, particularly civil rights (and affirmative action) and civil liberties (including, of course, the meanings of religious liberty and establishment).  I eagerly await them, but Conservatives and the Constitution is more than sufficient to establish Kersch as an absolutely essential voice in any discussion of what might be meant by conservative constitutionalism.

(Although, as is my wont, I'm opening this up for reader comments, I'm really not interested in comments by anyone who has not read Kersch's book or, at least, the specific people he discusses at length.)



Posted 9:30 AM by Sandy Levinson [link]