Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I came of intellectual age in the Southern California libertarian hotbed of the late 1970s. My influences were (and to this day still are) people like Rand; Rothbard; Rand; Mises, Hayek, and the other giants in Austrian economics; Rand; assorted Randians such as Tibor Machan and David Kelley; Rand; Eggs, Sausage, and Rand; Rand, Eggs, Sausage, and Rand; Rand, Rand, Rand, Rand, Rand, wonderful RAND.I have always vaguely known that there were such things as “Straussians,” but until a few months ago, I had never read a single word by Leo Strauss.To this day, I have never read a single article or book by Harry Jaffa (even though I went to Claremont).Until I read Ken Kersch’s book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism, all I knew about Richard Weaver was that he wrote some book called Ideas Have Consequences, but I had no clue what ideas and what consequences he might have been writing about; and I do not believe that I had ever heard or seen such names as “Francis Schaeffer” or “John Courtney Murray.”And so on and so on and scooby dooby doo.
In this initial post, I want to make two large observations about Ken’s book, with some more detailed comments to follow in subsequent posts, that flow from this spectacular confession of ignorance.
My first observation is that Ken has uncovered a world that I am embarrassed to admit that I have not encountered until now.I thus owe a great debt of thanks to former-student-now-Professor Ken Kersch.From an early time, I chose to spend most of my adult life hanging around with conservatives because I had the intuition that, on the whole, with obviously huge tails on both ends of the distribution, they tended to be more intellectually interesting than Leftists of various stripes.(And they were definitely more intellectually tolerant, as evidenced by the fact that they put up with me for all this time.)If Ken has even touched the surface of the underlying foundations of the last three quarters of a century of conservative legal thought, that intuition starts to make some sense.The scope of this book is staggering.It is a remarkable feat to integrate such disparate material, across multiple disciplines from constitutional theory to economics to political science to religion, into a manageable universe of story lines while compactly conveying the essentials of the underlying ideas.This book is an amazing accomplishment, and I want all of my subsequent comments to be understood in that light.
The key takeaway, of course, is that there are in fact underlying ideas with essentials (and consequences) to be compactly conveyed, so that disagreements among conservatives and anyone else -- whether Randians, libertarians, liberals, or Marxists -- can and must be addressed through sophisticated intellectual arguments rather than invectives.The secondary takeaway, of course, is that a lot of Leftists (come on, you all know that I’m right about this) will not consider this key takeaway to be the key takeaway.Their key takeaway will be that “the news is actually a whole lot worse than they may have imagined” (361).They will see a budding theocracy, with “The Handmaid’s Tale” merely a children’s story, lurking in the wings, driven by insane religionists.There is, I can sense them wailing, no reasoning with those beastly redemptivists, who for some misbegotten reason willnot accept the Rawlsian methodology that takes the prejudices of Leftist Ivy-League faculty members as the polestars of moral and political theory. They cannot be debated or argued with – at least not on terms of debate or argument that are socially acceptable in polite circles (which means terms of debate or argument that take the prejudices of Leftist Ivy-League faculty members as the polestars of moral and political theory).They simply must be STOPPED – by ANY MEANS NECESSARY.More on this in a moment.
My second observation is that Ken has uncovered a world that I am embarrassed to admit that I have not encountered until now.Umm, second verse, same as the first?Not quite.This iteration of the observation has a different context and a different consequence.
As I said, I have spent the better part of forty years immersed, as a welcomed outsider, in the conservative legal world.During that time, I have had extensive conversations, often spanning many hours at a time, with conservatives of numerous stripes and backgrounds.This has happened in all kinds of settings, ranging from academic fora to clerkships to home life (I have been housemates with conservatives on multiple occasions).These conversations have covered topics ranging from constitutional theory to public policy (including abortion, on which I am at least partially pro-choice) to religion (I profess none) to ethical theory (I’m a Randian) to epistemology and metaphysics (ditto).I emerged from those forty years of spectacularly rich and high-level discussions knowing nothing at all about Leo Strauss, Harry Jaffa, Francis Schaeffer, John Courtney Murray, Bishop Sheen, Richard Weaver, Russell Kirk, Eric Voegelin, or just about any of the other luminaries who fill up Ken’s volume.Yes, I had heard a few of those names (like Strauss and Voegelin) come up in passing in a few conversations, but until a few months ago I could not have written a coherent paragraph about any of them.Even when discussion with my conservative friends turned to first philosophy or life-and-death issues, those names simply did not come up (though C.S. Lewis and Frank Meyer came up with some regularity, as I recall).
To be sure, I was hanging around with Federalist Society folks, who emphatically are not the subjects of Ken’s book.But surely those folks, especially the generations of folks that I encountered in the 1980s and 1990s, when I had most of these conversations, would be familiar with the broad thrusts, and quite possibly the intricate details, of the intellectual threads that Ken chronicles.And those folks are the people who became, might become, or had something to do with the coming and becoming of others as, judges.They did not speak, even in private, the language that Ken describes.Accordingly, when Ken predicts that “[i]t may soon be the case that we will not be able to understand even conservative judges and their approach to textual interpretation and judicial role and duty without an appreciation for the deeper restorationist or redemptivist visions in which they have long been embedded, and their elaborately constructed historical memories, principles, and philosophies” (363), I think he is mistaken – or at least the prediction is not supported by the available evidence.
Of course, there may well be lots of people, including some of my friends, who believe exactly the kinds of religious-redemptive things that Ken so eloquently catalogues.There is, however, no indication that these particular religious-redemptive beliefs drive constitutional theory for those people who actually hold the levers of power, even if those people happen to hold these particular religious-redemptive beliefs.I know a pretty good percentage of the people who have driven the development of power-lever-holding conservative constitutional theory over the past four decades, and, as far as I can tell, what drives them is . . ., well, constitutional theory.To be sure, there may be millions of voters who would like a particular set of religious-redemptive beliefs to drive constitutional theory for those who actually hold the levers of power, but there may be millions of voters who would like all sorts of things to happen that are not very likely to happen.That is, after all, why the country is set up as a republic.As an antitheistic Randian anarchist, I can say with considerable confidence that a judicially imposed theocracy from the Right is not very likely to happen – no more than the world is going to end in twelve years if we don’t stop eating hamburgers and driving SUVs.(I have no such confidence about the unlikelihood of a judicially imposed theocracy from the Left, but that is another story for another day.)
But but but hasn’t modern conservative constitutional thought largely moved away from the prior Warren-Court era focus on judicial restraint, thus raising the spectre (if one is haunted by it) of judges “draw[ing] on their newfound power to actively constitutionalize ideologicalsubstance instead of passively performing institutional deference” (364)?Yes, indeed it has, but that development has not much to do with the broad intellectual currents described in Ken’s book.That development is a natural outgrowth of ordinary, garden-variety, mundanely secular, Federalist-Society constitutional theory.
The mantra of “judicial restraint” was an untheorized response to political events of the 1960s and 1970s.The first responders who chanted that mantra were – not to be uncharitable – an antitrust scholar and a concert violinist.They were immensely talented antitrust scholars and concert violinists (as well as truly wonderful human beings), but they were not inclined or situated to do deep work in interpretative theory.Originalism as a constitutional theory did not start getting seriously theorized until the next generation of scholars began work (years before most of them became academics, I should add) in the 1980s.And once those people started working, it became pretty obvious pretty fast that “judicial restraint” needed to be a conclusion rather than a premise of constitutional theory.The Constitution does not contain a “judicial restraint” clause.It just doesn’t.Sometimes the Constitution will call for judicial restraint and sometimes it won’t.That will depend on what other governmental actors do or have already done; it is not something that can be propounded a priori.
Where does that simple observation lead?One does not need a religious-redemptive theory to conclude that most of the modern national government is wildly, absurdly, it-is-not-even-a-close-call-obviously unconstitutional.One does not need a religious-redemptive theory to figure out that a good chunk of the limits that modern constitutional law places on state legislatures (e.g., state legislatures can’t make it illegal to kill babies if the judges don’t think the babies are old enough not to be killed) are simply made up.One only needs the Constitution for that.
Accordingly, my biggest substantive complaints about Ken’s book are (1) that he has not really addressed the extent to which specific beliefs and specific actions are connected in the grand scheme of things and (2) that he has fallen prey to what I have in my own mind named the “Whittington fallacy,” but which I probably need to re-name the “political-science fallacy,” about the development of modern originalist theory.In 2004, Keith Whittington hypothesized that the conservative move away from judicial restraint happened because conservatives suddenly acquired power, which the old mantra of judicial restraint might prevent them from using.See Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 603-04 (2004).That hypothesis was taken up by Jim Fleming, see James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms 5 (2015), and Ken buys it wholesale (100, 365).It is the kind of explanation that sounds great to political scientists.It just happens to be spectacularly wrong.The imperatives of power heightened the need for constitutional theorizing, but the content, including the determination that judicial restraint was not something that could be interpretatively derived from the Constitution, was a purely intellectual exercise.I know this. I played more than a small part in that determination.The conservative rise to power correlated with serious theorizing about constitutional theory, but correlation is not causation.
Once one understands the meaning – the communicative content -- of the Constitution, the big question becomes what, if anything, one is going to do with that meaning as a matter of concrete, real-world action.One can choose, for example, to do nothing with that meaning and instead to prefer in one’s actions a normative construction such as “judicial restraint.”One can choose to do nothing with that meaning and instead to prefer a normative construction such as “whatever happens to be the political platform of the far-left wing of the Democrat party at any given moment.”One can choose to do nothing with that meaning and instead to prefer a normative construction such as “whatever happens to be the political platform of the Libertarian Party at any given moment.”Or one could choose to treat the meaning of the Constitution as authoritative for official decision-making.There are any number of theoretical structures that might lead someone to the (not at all inevitable) latter path.Perhaps various religious-redemptive theories are among them.But once that path is taken, for whatever reason, the real work is done by the Constitution and the mundane theorizing necessary to ascertain its communicative content.The contemporary Left --- and the contemporary establishment Right – undoubtedly have much to fear from that path, but that is simply because the Constitution’s objective communicative content by and large does not support their favored programs.On that point, the overlapping consensus among the wing-nuts described in Ken’s book is absolutely correct.Whether or not those conservatives were/are factually right about metaphysics, epistemology, ethics, culture, art history, or the relationship between James Madison and Samuel Rutherford, they were/are basically factually right about the United States Constitution.