Sunday, June 16, 2019

Ayn Rand, Gary Lawson, and the Supreme Court

Guest Blogger

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

Ken I. Kersch
Gary Lawson has contributed two provocative, engaging, and very interesting posts for the symposium on my book Conservatives and the Constitution.   What follows is a response to the first first, and the second second.

Gary’s first, more general post responds to Conservatives and the Constitution in light of his own significant experiences as a conservative legal movement insider at the highest levels, including as a clerk to Antonin Scalia on both the D.C. Circuit and on the Supreme Court, in the Office of Legal Counsel at the height of the Reagan administration, and as a founder of The Federalist Society.  Gary reports that he and his friends mostly had not read Leo Strauss, Richard Weaver, or John Courtney Murray.  This does not surprise me, nor is it inconsistent with the thesis of my book.  My argument is that the different parts of the movement had their own touchstones for their framings and political and economic philosophies (or, to touch base with Gary’s second post, their own metaphysics and epistemologies).   Gary’s deep background in Rand and Ludwig von Mises fit who he was.  That of Right-Wing Catholics would fit who they were.  And that of evangelical Christians would fit who they were.  I would not expect those from each of these different parts of the coalition to know the entire breadth and scope of the thought of the others.   That is why I argue that they came to coalesce around the common language of legalist originalism:  it came to serve as a common ground, and a basis for distinguishing their allies from their opponents, or even their enemies.  That is my argument, or at least an important part of it.    

I would be remiss if I did not pause here to observe -- it seems to me contra Mark Tushnet’s argument that there was no direct relationship between the views of the political (and economic, and theological, etc.) thinkers I recount in my book and Reagan administration, Supreme Court, and legal academic originalism -- that, as it happens, Gary Lawson, a major figure in the latter three endeavors, testifies that, in fact, he read deeply in it (although, to be sure, in his own corner of it, as would be expected).  That testimony seems to me to support my argument.  
While Gary testifies to a deep immersion across his California youth in Ayn Rand and the Austrian economists, who I discuss in Chapter Three (Gary’s second post manifests the depth of that understanding, after what has turned out to have been a lifetime’s study), however, he says very little if anything in either of his posts about what he thinks the relationship is between his lengthy apprenticeship in Randian Objectivism and Austrian economics to his later work in the executive and judicial branches and as pioneering legal academic proponent of originalism.  None? The answer to that would speak to the central thesis of my book concerning the relationship between substantive conservative political philosophy and thought and legalist conservatism (including legal originalism).  That is especially interesting, given that, as Gary reports -- and I do, briefly, in my book -- Rand did not think that the U.S. Constitution -- the Founders’ Constitution -- set the conditions for the realization of her philosophy concerning a “best” or “good” political order (given Gary’s second post, I tread lightly, but, as I recall -- and my book quotes Rand directly on this -- she believed that it provided the space for at least a movement towards that order, but also provided the space for the movement away from it as well; as such, it seems to me, that, for her, an originalist method would not entail libertarianism)(Rand: “[A]lthough certain contradictions in the Constitution did leave a loophole for the growth of statism, the incomparable achievement was the concept of a constitution as a means of limiting and restricting the power of the government.” (Rand, The Virtue of Selfishness (1964)).

Part of what I want to suggest, at least, in Conservatives and the Constitution is that, despite the fact that judges -- or their clerks, like Gary -- almost never cite these things in their legal opinions, the influence is nevertheless there in the supporting narratives told about individuals, markets, and the role of government, and the trajectory of the United States (such as the meaning of the nineteenth century common law order, or the Progressive Era, or the New Deal) that shape those opinions. 

Gary’s second post manifests a depth of engagement with Ayn Rand’s metaphysics and epistemology, the product of a lifetime of study, that I readily confess I simply do not possess.  I learned from his post, and, on some of the detailed points he makes, stand corrected.  That said, however, I do have a few thoughts on the critiques of the account of Rand that I provide in Conservatives and the Constitution.  I accept the refinement Gary proposes concerning Rand’s understanding of the nineteenth century legal order in the U.S. and what she called “the unknown ideal.”  (I will incorporate that in the second edition -- ha!).  I confess I don’t recall why I wrote “late nineteenth century” in the main body of the text (p. 126) rather than “nineteenth century.” But immediately underneath that, I have a long footnote that consists almost entirely of direct quotes from Rand (p. 126, n. 62) in support of the lamentably slightly askew claim (that word “late”…) that I think gets it right.  On this, for the benefit of Balkinization readers, I will quote from my footnote (that is, from Rand): “The unprecedented social system whose fundamentals were established by the Founding Fathers, the system which set the terms, the example, and the pattern for the nineteenth century … was capitalism. To be exact, it was not a full, perfect, totally unregulated laissez-faire capitalism…. But during the nineteenth century, the world came close to economic freedom, for the first and only time in history…. America, the freest, achieved the most.” (Rand, For the New Intellectual (1961)).

As for Gary’s proposed correction concerning Rand on Nietzsche and Rand on businessmen, he knows a lot about Rand, so perhaps he is right.  I will think about that, though I should say, and as he notes, the views I express on this in the book are hardly idiosyncratic, including amongst conservatives (see, e.g., [famously], Whittaker Chambers, “Big Sister is Watching You,” National Review (1957)).  While, moving forward, I will at least pause to re-consider the book’s claims and perhaps learn something new in this regard, l do want to stress the importance of keeping our eye on the ball -- the postwar American conservative political and constitutional mobilization.  I want, and wanted, to get Rand right, on her own terms as a philosopher and thinker.  But what matters, at least for the movement side, is the reception of Ayn Rand.  In the few pages I devote to her, I hardly do that question full justice.   But I do place her alongside a raft of conservative arguments about businessmen as creators, and of unique value to the polity.  My suggestion is that her writings, broadly construed (and, yes, even her “aesthetic preferences”), sounded at the time in that register within important precincts of the broader conservative movement, just as, incidentally, they sound today. 

It is, to be sure, nothing more than an opinion and an assertion, and it is certainly not the whole story, but the willingness of Republican and movement conservative voters to line-up behind that proudly selfish businessman, creator, and builder of gilded towers, Donald Trump, a man with no background in public service, or seeming concern for res publica -- whose election and installment the American Founders, to a man, would have despaired of and deplored -- owes quite a lot to the groundwork laid by Ayn Rand.

Ken Kersch is Professor of Political Science at Boston College. You can reach him by e-mail at kenneth.kersch at

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