Sunday, June 09, 2019

Kersch on Conservatives and the Constitution

Stephen Griffin

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

Ken Kersch’s wonderfully provocative book is one that everyone interested in American constitutionalism ought to read.  It is the starter volume of a major history of constitutional conservatism.  Here he explores the development of constitutional conservatism during the period 1954 to 1980 when it was quite definitely a minority view.  I found the book to be an intellectual page-turner, something not easy to pull off, and every chapter contributes new insights to our understanding to American constitutional history.  I feel compelled to add that it is an unusually fun read for a scholarly work and (intentionally) quite funny at points.  Perhaps because it is the first of a projected three volumes, it ends somewhat abruptly with a discussion that jumps to our Trumpian present.

Kersch starts with political and legal originalism, certainly familiar ground.  But the remainder and much greater part of the book ranges far beyond originalism to disclose the outlines of an alternative way of constitutional thinking – a broad-based intellectual movement to recapture the Constitution for conservative thought.  As he remarks, this “amounted to a robust, intellectually elaborated critique of the modern liberal American state, with constitutionalist visions to back it.”  It provided “an alternative intellectual and emotional universe” for conservatives to inhabit as a way of removing themselves from the dominant liberal narrative.  Kersch develops this argument in lengthy analytical chapters that nonetheless never seem to drag.  He locates the development of conservative constitutional thought in addressing market relationships, anticommunism, and the role of Christianity in American constitutionalism.

What follows are some unfortunately disconnected observations on Kersch’s argument.

Kersch’s detailed presentation of conservative thought undermines consensus approaches to American constitutional change.  Kersch accomplishes this partly by showing the rich variety of conservative thought, a prolonged dissent from the reigning liberalism.  Moreover, he continually underlines the point that as much as liberals kept insisting that everyone agreed to the administrative-welfare-regulatory state during the progressive era and the New Deal, conservatives did not.  Indeed, they never consented.  And they still not consenting.  Kersch’s evidence hints powerfully that one of the reasons is one I am much concerned with – that this new approach to the American state was not validated by formal amendments to the Constitution – the document conservatives came to revere above all other political commitments.  Here I am jumping ahead a bit because Kersch is careful to say that conservatives came to this position only over time.  They deliberately became the avatars of the permanent or (as Justice Scalia liked to say) “dead” Constitution, insisting on a strong dividing line between interpretation and amendment.  In constructing this constitutional home for themselves, conservatives believed liberals had abandoned the Constitution in favor of the free play of political aims.  It bears noting that the traditional conservative Achilles heel to their commitment to limited government – their strong support for the national security state and an aggressive military posture to combat foreign threats – does not figure much in Kersch’s analysis.

A special point of interest is Kersch’s thorough discussion (more than 25 pages) of the incredibly influential films made by Francis Schaeffer and his son Frank, including How Should We Then Live? as well as Whatever Happened to the Human Race?  I was dimly aware of the influence of these films on the Reagan era but largely unaware of how they can be understood as providing a master narrative for at least the religious side of contemporary conservative constitutional thought.  I’m happy to be enlightened.  As Kersch comments, in both of these widely seen film series, “Roe v. Wade was taken not only as a bad, or even evil, decision but as a signifier and symbol for nothing less than society’s abandonment of God and, consequently, the decline of Western civilization itself.”  This is a claim that surely continues to resonate in conservative approaches to the Constitution and judicial nominations (as illustrated by Justice Thomas’s recent claim that eugenics and abortions rights are connected).  More broadly, the connections between evangelical and fundamentalist forms of Protestantism as well as conservative Catholicism to conservative constitutional thought that Kersch so ably details remain largely hidden by the almost exclusively secular approaches pursued by scholars to understanding conservative decisions by the federal judiciary, including of course the Supreme Court.  Kersch’s account suggests strongly that scholars need to consider the religious connection much more seriously.

These remarks on Roe illustrate something else about Kersch’s narrative – the intense ideational and crisis-fed character of conservative constitutional thought.  For conservatives, the anti-constitutional liberal wolf is always at the door.  At least without a conservative hero like Ronald Reagan at the helm or a President Trump appointing solid conservative jurists, the end of the Constitution is always nigh.  But I believe the point that ought to interest us is that things are dire because constitutional first principles are somehow never attended to.  Right thinking almost never occurs.  I tend to find this intense ideational focus either off-putting or hilarious (which is not Kersch’s intention), but it does account for the sometimes obsessive quality of conservative constitutional thought.

As a final observation, Kersch’s narrative usefully highlights the puzzling way constitutional conservatives initially viewed the African American civil rights movement.  As Kersch says, they saw it as a deeply troubling, even “brazen” attack “on constitutionally protected private property rights” and (for religious conservatives such as Jerry Falwell) “as a stalking horse for an all-powerful central government, if not the work of the Devil and a Soviet plot.”  Yet perhaps this is not so puzzling after all.  With respect to the rights of contract and property at least, Kersch’s book allows us to make an important connection between 1950s-1960s era conservatism and principled commitments Republicans had before Reconstruction that later came to undermine that earlier civil rights effort.  This should encourage us to reflect further on the conflict between what are after all core constitutional commitments to property rights and (now) equally core commitments to non-discrimination on the basis of race.

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