Five Lessons from Kersch’s Conservatives and the Constitution for the Present Moment

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

James E. Fleming and Linda C. McClain 

We had the good fortune and great pleasure to be good friends of and in intellectual conversation with Ken Kersch. We appreciate the opportunity, through this Balkinization symposium on his work, to try to honor his legacy by offering some thoughts on his erudite and sobering work concerning conservative political and constitutional thought in the U.S.

A recent “Best Sellers” list in the New York Times Book Review describes Timothy Snyder’s On Tyranny as follows: “Twenty lessons from the 20^th century about the course of tyranny.” Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the 20^th century about the development of conservative constitutional thought and activism. These lessons are relevant for understanding the present political moment, filled with concerns that the U.S., several months into the second Trump Administration, is lurching toward tyranny, authoritarianism, and totalitarianism. Kersch’s book highlights that a recurring refrain by conservative thought-makers and politicians during their “wilderness years,” or “postwar liberalism’s heyday between 1954 and 1980,” was that conservatism’s enemies—including not only “godless communism,” moral relativism, and secularism, but also liberalism and liberal “living” constitutionalism—were leading the U.S. toward totalitarianism and authoritarianism. As his subtitle indicates, conservatives envisioned constitutional restoration (and redemption), to be ushered in when Republicans returned to political power and control of the judiciary. In this post, we sketch five lessons from Kersch’s book.

1. Narratives matter. From its opening pages, Conservatives and the Constitution argues that understanding the modern conservative movement and what conservatives mean by “constitutional restoration” requires examining how the various strands of conservativism—”Fundamentalist and Evangelical Christians, right-wing Roman Catholics, fervent anticommunists, and anti-statist libertarians”—all “told passion-laden and memory-drenched stories” about the U.S.’s “history and trajectory and their place within it” (xiii). This provided “motivation for, and prologue to, imagine the country’s future, should they reclaim power to direct it” (Id.). Kersch meticulously explicates those different narratives within the modern conservative movement, charting how they shared, as a “motivating and unifying rallying cry,” the “call for constitutional restoration and redemption” (367).

Constitutional scholars in recent decades—including Jack Balkin, Peggy Cooper Davis, Reva Siegel, and Serena Mayeri—have identified the critical role of constitutional memory, including the stories people tell about the Founding, the Framers, the Constitution, and the meaning of famous constitutional law cases. Kersch’s book is a rich resource in capturing the strands of conservative narrative and constitutional memory. In Trump 2.0, the need to focus on narrative seems even more pressing. As Kersch observes: 

There are, after all, different ways of telling the story of how the Constitution came into being and why; what it was, did, and does; how it was used, respected, honored, lost, abandoned, or betrayed; how it succeeded or failed, proved durable, workable, distorting, hopeless, or malign; who is helped or hurt, served, advanced, privileged, marginalized, or oppressed; when any of these happened, or did not; who deserves credit, honor, or blame; and what these imply or teach about the contemporary and future problems and possibilities of individuals, the nation, and humanity (368). 

Liberals and progressives, he adds, tell their own stories about these matters. After the 2024 election, some commentators have argued that liberals and progressives have to construct more effective constitutional narratives. Further, in the face of evident backlash against gender equality (as in the bellicose (“bro”) masculinity of the Trump cabinet), Tarana Burke (founder of MeToo) argues that progressives are losing the “narrative game.” 

2. Conservatives view the (liberal) American regulatory state as akin to communism. Conservatives and the Constitution explores a striking phenomenon in U.S. opposition to communism. On the one hand, “a staunch anticommunism was a defining feature of postwar American conservatism,” as well as “the consistent position” of leading liberal politicians and liberal organizations (201). On the other hand, the Vietnam War challenged this “consensus” position, as some liberal opponents of the Vietnam war blamed it on “an ill-judged anticommunist zeal” (Id.). Meanwhile, for many on the right, “communism” became the preeminent enemy: “the existential threat to the very survival of John Winthrop’s ‘City on a Hill,’ of God’s chosen nation” (202). And “communism” also became a “heuristic” for “understanding, tarring, and damning the liberal thought-leaders and policy intellectuals now building out the modern American state” (203). These Cold War conservatives viewed those liberals as “domestic analogues to Soviet Communism’s vanguard Leninist cadres” (Id.).

Given that many of the Right’s outspoken anticommunist conservatives began as “communist or socialist intellectuals steeped in radical political thought,” Kersch theorizes that many “transferred their radical faith, zeal, militancy, and Manicheanism from communism to anticommunism” (207). Because communism, some argued, was an “aggressive faith that rejects God,” it was necessary to shore up the understanding of the U.S. as a Christian nation, through such “ceremonial deism” as adding “In God We Trust” to U.S. currency and the language, “One Nation Under God,” to the Pledge of Allegiance (which itself was only adopted as the official pledge in 1945) (212-213). The effort, however, to add a Christian Amendment to the Constitution—to correct the Framers’ “founding error” of not mentioning “God” in that document—did not succeed (213).

There is notable continuity between the anticommunism of that era and anti-liberalism today. Then, as now, conservatives find an “existential threat” lurking in “the country’s modern New Deal administrative, regulatory, and social welfare programs” (244)—warranting the chainsaw-brandishing Elon Musk’s’ zealous dismantling. Further, in the 2024 presidential election, President Trump resorted to the “Red-baiting playbook,” calling Democratic nominee Vice President Kamala Harris “Comrade Kamala” and falsely claiming that she had “always been a communist.” Trump and prominent supporters (including Musk) repeatedly branded Harris and Governor Tim Walz and their policies as “communist,” Marxist, or Leninist. To any liberals or progressives who think Trump was exaggerating for rhetorical purposes and that many Republicans accepted this, Kersch’s book provides a sobering correction—it enables us to see the straight line connecting 1950s anticommunism and contemporary anti-liberalism and Christian nationalism.

In Project 2025 (Mandate for Leadership: The Conservative Promise), the Foreword by Kevin D. Roberts refers to President Reagan as defeating the “beasts” of “the Soviet Union, the socialism of 1970s liberals, and the predatory deviancy of cultural elites” (3). It also links progressivism and “wokeism” to Communism. Thus, in Promise #4: Secure Our God-Given Individual Right to Enjoy “The Blessings of Liberty,” Roberts argues that “the American people” have rejected “slavery, second-class citizenship for women, mercantilism, socialism, Wilsonian globalism, Fascism, Communism, and (today) wokeism.” Yet, “to the Left, these assertions of patriotic self-assurance are just so many signs of our moral depravity and intellectual inferiority—proof that, in fact, we need a ruling elite to making decisions for us” (14). Roberts also treats “Communism” as a synonym for socialism, Marxism, progressivism, and Fascism. 

3. A “co-belligerent” Christian constitutionalism—and nationalism—united Evangelical Christians and the Catholic Right and put them on the “right” side of civil rights. Conservatives and the Constitution intricately charts the emergence of what Kersch calls a “Christian co-belligerence,” uniting Evangelicals and conservative Catholics, among other “religiously diverse strands of the Religious Right,” under “the Constitution’s banner” (350). He argues that conservative Catholics played a growing role in this effort. While this might seem “surprising,” given the “anti-Catholic Protestantism” and “Enlightenment liberalism” of the Founders, Kersch explains that this was due to conservative Catholics re-narrating the nation’s history as “anchored in the commitments and principles of the Catholic faith,” so that “only a Roman Catholic framework could fully illuminate the American Founders’ achievement” (357). (Since Kersch wrote, we have seen Adrian Vermeule’s well-known argument for a “common good constitutionalism” rooted in the classical tradition. As another example, in Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the Christian Founding, Kody W. Cooper and Justin Buckley Dyer argue that “ideas central to the American founding . . . presupposed classical natural law and theology” and that there is a “deep, deep continuity” from Aristotle and Aquinas to the founding (7).) At an institutional level, Kersch points out how efforts of prominent figures such as Professor Robert P. George of Princeton University, an “intellectual impresario of the nation’s far Right,” have helped to forge the “co-belligerence that has united the once theologically divided factions of the modern Religious Right and immensely strengthened their political and legal influence” (358). Redeeming the “American constitutional project” is a central aim (Id.). Such efforts also require civic narratives.

Kersch argues that culture wars have played a large role in this narrative. Decades ago, Evangelical and Fundamentalist Christians who helped sweep President Reagan to power built bridges with conservative Catholics through an “overarching story of the crisis of Christian civilization” as being on “the verge of succumbing to an existential threat launched by the secularists, humanists, positivists, historicists, and nihilists who supported abortion, socialism, and gay rights” (367). He observes that this political and constitutional coalition has held together for nearly half a century (Id.).

In his conclusion, Kersch notes the striking degree to which this co-belligerent Christian Right has “become second to none in repeatedly and aggressively denouncing chattel slavery,” a phenomenon he calls a “strident,” “vicarious abolitionism” (369). As he explains, the Christian Right engages in re-narrating “the history of the nineteenth-century legal and constitutional order” in ways supportive of their “co-belligerent compatriots” (373). For example, as Evangelicals praise Catholic “systematic theology” as “simply following the path of moral logic to which any reasonable person must assent,” Roman Catholic constitutionalists praise “the role that Godly Evangelical Christians” played in ending chattel slavery (Id.). However, as Kersch points out, “the distinction between the northern Evangelical abolitionists who opposed chattel slavery and the mainly (white) southern Evangelical Christians who fervently enlisted Scripture in justifying and defending it” is one on which “the contemporary Christian Right, rooted in the South, chooses not to dwell” (Id.).

Kersch observes that this “abolitionism” also “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 (among others)” (Id.). The contemporary Right then uses this “fire-breathing abolitionism” as a “bludgeon to pummel liberals—or, rather, progressives—who, presumably, are thoroughgoing positivists, utilitarians, historicists, secularists, cultural relativists, and nihilists” (370). They seem to find chattel slavery’s “contemporary legacy in the push for progressivism and abortion rights and gay rights” (371). To this, we would add, writing in 2025, and given the rhetoric of the 2024 election, the rights of transgender persons. The historical analogies drawn by these vicarious abolitionists cast “conservatives” in “the role of Frederick Douglass and Abraham Lincoln, while the liberals and progressives are cast as Roger Brooke Taney, the infamous author of Dred Scott, and the slavery-accommodating Illinois Senator Stephen A. Douglas . . . if not worse” (370).

The trend that Kersch identified in 2019 is quite pertinent in 2025: By executive order, President Trump re-established the 1776 Commission to promote “patriotic education.” In its 1776 Report, the Commission drew precisely the parallels that Kersch mentions, treating all civil rights developments since the enactment of the Civil Rights Act of 1964 as moves toward an illegitimate “color conscious” rather than “colorblind” society. Both Project 2025 and the slew of executive orders condemning “DEI” and “discriminatory equity ideology” and “gender ideology” implausibly and dangerously invert understandings of “civil rights.” 

4. The right settled on originalism only after a broader constitutional theory debate concerning substantive visions. Conservative constitutional visions were the primary driving forces toward unity on the basis of originalism. In 1954, it was not preordained that the many strands of conservative constitutional thought would settle on originalism as its fighting faith, or that originalism would unite the right. To be sure, we see a proto-originalism in documents resisting Brown v. Board of Education, like the Southern Manifesto and Nullification Resolutions. We see the very same proto-originalism in the briefs filed in the 1954 re-argument in Brown in support of reaffirming Plessy v. Ferguson.

What is more, 1950s proto-originalist liberals including Justice Hugo Black and Professor W.W. Crosskey had demonstrated the usefulness of originalism as a wrecking ball for tearing down doctrines standing in the way of instantiation of a substantive vision of the Constitution (83-85). But, as Kersch clear-headedly and painstakingly recounts, the many strands of conservative constitutional thought largely existed outside the courts as substantive constitutional visions, not lawyerly conceptions of how to interpret the Constitution.

It is commonplace for critics of originalism to argue that it is a cover or disguise for the imposition of conservative views. Critics typically deliver these criticisms as reductive, disparaging put-downs of sanctimonious conservative pretensions to neutrality or objectivity in constitutional interpretation. Kersch’s book, without being reductive or disparaging, richly demonstrates that the primary driving forces behind the unification of conservativism on the basis of originalism are conservative substantive visions. 

5. As conservatives gained control of the judiciary, a new “originalism” licensed aggressive judicial review by conservative judges to promote conservative substantive visions. Like Keith Whittington, Kersch distinguishes two phases in the development of originalism: (1) the initial proceduralist and institutionalist call for “judicial restraint” in criticisms that delegitimize the decisions of the Warren Court and the moderately conservative Burger Court, at the time when early originalists were still voices crying in the wilderness (Bork (1971), Berger (1977), and Scalia (1989)), followed by (2) the emergence of the new originalism as a program for affirmatively implementing conservative substantive visions of the Constitution once conservatives become a governing majority on the Supreme Court. Although the justices on the Roberts Court would not admit it, they clearly have moved from the first phase to the second phase, especially since Dobbs. The second Trump Administration clearly understands this, and rightly does not expect much pushback from the Roberts Court as it aggressively carries out its constitutional revolution.

We have always viewed the latter stage instead as conservative moral readings—substantive visions of the Constitution’s basic structures and commitments—rather than, say, a faithful account of the founding or original public meaning of the Reconstruction amendments as such. Thus, it seems to us that Adrian Vermeule’s characterization is very much on the mark: that in the first phase, originalism served its largely negative purpose, but now that we are in the second phase, conservatives should move “beyond originalism” and openly implement a conservative moral reading of the Constitution.

Yet, it probably is the case that, for reasons of temperament and rhetoric, conservatives will continue to wear originalist garb or perform acts of what Balkin calls “historical ventriloquism,” putting their conservative visions in the mouths of the framing and ratifying generations. Temperamentally and rhetorically, discourse of a restoration or redemption of a founding—or a return to fidelity to first principles—is more congenial to them than is discourse of implementing a conservative substantive vision or constructing a conservative moral reading.

What is more, by their conservative lights, even after the pervasive and unrelenting disruption of constitutional doctrine wrought by the Trump Court since 2020, constitutional law is still littered through and through with liberal precedents and so they still need to use the demolition crew of originalists to tear it all down. Finally, as Kersch would have been the first to emphasize, conservative constitutional law professors may be more comfortable with the idiom of “neutrality” or “processes” or “matter of interpretation” than with forthrightly advocating for imposing a substantive vision. This applies even more so to conservatives on the Supreme Court. 

* * * 

In concluding, we want to repeat what we said at the beginning: narratives matter. As we observed, most law professors, if they are familiar with the ideas of constitutional redemption, story, memory, and narrative, probably think of the work of our blog host, Jack Balkin, his Yale Law School colleague Reva Siegel, Serena Mayeri, and, before them, Peggy Cooper Davis. Kersch’s Conservatives and the Constitution deserves a place in the standard string citation to scholars developing and applying these ideas. Now, these ideas are not inherently conservative, but Kersch argues and demonstrates in rich detail that conservatives have been far more adept than liberals and progressives in communicating and mobilizing through using these ideas.

Furthermore, through the ideas of redemption, story, memory, and narrative, Kersch weaves together the materials forming a conservative “incompletely theorized agreement” or “overlapping consensus.” Many have pondered what unites the evidently discordant strains of conservative argumentation today. Most pundits and scholars have constructed largely negative accounts, e.g., what united the Republican Party in 2016 was more hatred of Hillary Clinton, or agreement about the necessity of repudiating everything Barack Obama had accomplished, than agreement that Donald Trump would make a good president. Kersch provides a more positive account: what unites the right around Trump is an overlapping consensus among quite different conservative views about the urgency of redeeming the promise of the “city on a hill,” or making America great again.

Relatedly, countless pundits and scholars have come around to the view that Trump is not an aberration but instead the culmination of certain strands or forces in the evolution of the Republican Party. Kersch’s book contributes to this understanding. Because his book is about conservative ideas, it contributes less to political science literature on why Trump won the presidency twice than to understanding how numerous strands of conservative thought since 1954 have borne fruit in Project 2025. Kersch puts the matter in terms of a recurring refrain: these ideas have been “hiding in plain sight.”

Finally, Kersch’s book enables us to see that many conservative ideas that initially seemed shocking—like Michael Anton’s argument that the 2016 election’s choice between Trump and Clinton resembled the choice of the passengers on Flight 93—make perfect sense of the state of the conservative mind in the U.S. today (374-78). As does the evidently counter-intuitive appeal of Trump the immoralist to conservative Christian moralists. It appears that the conservative never-Trumpers whom we have long admired did not get the memo. Barry Goldwater put it best when he said in the most famous line of his 1964 nomination acceptance speech (penned by Straussian Harry Jaffa): “Extremism in the defense of liberty is no vice” (53 n.76). To many, that sounded like unhinged paranoia during Goldwater’s presidential campaign in 1964. However, today, to many conservatives, it evidently sounds like the common sense truth of the matter. Hence, to many of them, tyranny and authoritarianism may seem necessary to them to restore constitutional virtue and to restore the blessings of honorable liberty. Reading Kersch’s book enables us to appreciate this. 

James Fleming, jfleming@bu.edu, is the Hon. Paul J. Liacos Professor of Law at Boston University School of Law. Linda McClain, lmcclain@bu.edu, is the Robert Kent Professor of Law at BU Law.