Saturday, January 14, 2012

Justice Accused (circa 2012): Antislavery Constitutionalism … on the Republican Right

Ken Kersch

Just in time for the MLK holiday, I have an article out in the Maryland Law Review on antislavery constitutionalism on the contemporary right:

"Beyond Originalism: Conservative Declarationism and Constitutional Redemption," 71 Md. L. Rev. 229 (2011).

The first two paragraphs, setting out the main argument, are here:

“Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.”

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