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
After a preface and big picture chapters entitled “The Intellectual Archipelago of the Postwar American Right” and “The Alternative Tradition of Conservative Constitutional Theory,” the core substantive chapters of my new book Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019) are “Stories About Markets,” “Stories About Communism,” “Evangelical and Fundamentalist Christian Stories,” and “Right-Wing Roman Catholic Stories.”Why not, Mark Graber asks, “Stories About Race/Racial Hierarchies”?
“Leaving race to a separate volume,” Mark suggests, “may … be a mistake.”On this, Mark may very well be right.“Racial hierarchy was as foundational to conservativism during the middle third/third quarter of the twentieth century as markets, communism and religion,” he writes. “Race is omnipresent in conservative constitutional thought, even when racial equality is not the explicit subject of conversation.”Mark may very well be right about this as well.In this reply, I don’t want to so much argue against Graber, as reflect on the important issues he raises in that initial challenge, and on the important substantive issues he raises about the constitutional implications of the Civil War, the Reconstruction Amendments, the powers of the national government, and their relationship to the past and present maintenance of racial hierarchies.
Inevitably, in talking about this, I am going to have to mix prosaic, practical considerations of putting together a book (which may be of interest to some, but are not the main focus of the Balkinization blog) with more substantive considerations.I will begin with the first, but I will work my way toward a (brief) discussion of race and the postwar conservative movement.I should say that I do not believe the two are separable issues:even forced practical choices -- priorities -- reflect underlying theoretical commitments.
As both Steve Griffin and Mark Graber note, Conservatives and the Constitution is the first (freestanding) part of what will be three volume study of constitutional conservatism in the postwar United States.In working on this, I had absolutely no intention of writing a three- volume work.I intended to write -- and did write -- one book.What then happened was that I presented that book in manuscript form to a two-day workshop conference sponsored by the Kinder Institute on Constitutional Democracy at the University of Missouri during my sabbatical year as a Distinguished Research Fellow at Kinder.The very first critique that opened that conference was “Ken, this is much too long!”Conservatives and the Constitution (428 pp.) is, essentially, the first third of the initial book manuscript.The projected volumes two and three are the rest -- what was left (great stuff!) forlornly sitting orphaned on my laptop after those two days at Mizzou. As it happens, much of the material on race that was in the initial single book.In has now, in effect, been consigned to “future” volumes.
In that material, as Mark Graber and others rightly suspect, there is a lot of often hair-raising racism and white supremacism, which I recount directly, without euphemism -- indeed, with pointed emphasis.Some of that is from some of the people whom I discuss (take one) in Conservatives and the Constitution, like James Jackson Kilpatrick and Richard Weaver (Ideas Have Consequences).I did, in the end, choose to leave that for a subsequent book for a grab-bag of reasons.I decided, for good and for ill, that the best way to divide the 1200 page text was to track the conceptual structure of the way many of us teach and approach constitutional law in political science (“teaching the sequence”):that is, to take the postwar conservative constitutional thought on “structures and powers” (federalism, congressional, executive, and judicial power, and the bureaucracy) and put it into the next future book, and to then take the postwar conservative constitutional thought on “civil rights and civil liberties” and put that in the subsequent future book.There is a fair amount of explicit race stuff in both.Conservatives and the Constitution presents the big picture/broad overview material that I thought usefully stood alone outside of those umbrella categories.
That is a partial explanation.But it is not a justification.If stories about race and racial hierarchy are core framing narratives of postwar conservatism, they still belong in the book that is the subject of this symposium.One substantive choice I made in arriving at this decision was to present postwar constitutional conservative thought on the whole in its best light, and in ways that I think that best serve as a way into our present, and fraught, political moment when most non-fringe conservatives understand themselves as not being either white supremacists or avowed (or closet) racists.Support for free markets, opposition to communism, and a grounding (Christian) religious faith are all commitments of which conservatives were and remain proud of (with some notable exceptions, to be sure, that I discuss).I wanted to present conservative thought as conservatives saw and see themselves.
Part of this, I confess, stems from a desire to push back a bit against a widespread inclination among those writing about postwar conservatism to simply reduce all of it to racism and white supremacism (even public choice theory, which has little or nothing to do with racism or white supremacism:see, e.g., Nancy MacLean’s Democracy in Chains). I do not in any way deny that racism scarred the postwar conservative movement, and is easily found there, including (as Andy Koppelman notes, in the pages of National Review:racism on the right is actually central to the developmental model I present of the trajectory of the postwar conservative movement, even in this book, despite my not using it as a conceptual framing device for a stand-alone chapter (as Andy notes, I discuss, e.g., Mel Bradford and other neo-confederates (a small to his post, though:Charles Kesler is the antithesis of a neo-confederate -- in fact, in conjunction with Harry Jaffa, he has been one of the movement’s chief opponents of neo-confederate constitutionalism)).Given the organizational choices I made in transforming the one book into three books, however, in Conservatives and the Constitution I am more inclined to simply state that these people were racists and neo-confederates than to document and demonstrate it.
But -- and here we get to the more substantive constitutional issues raised by Mark post -- one thing I wanted to illuminate in this book, not least because I don’t think anyone else has done so, and because it is so important today -- is that the racist and white supremacist vein of postwar conservatism was over time challenged by other movement conservatives, and ultimately superseded as a view within the movement, especially following the defeats of the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (which legal scholars have described as “constitutional statutes” or “super-statutes” -- that is, it appeared, permanent changes to the political -- or, if you would have it -- “constitutional” order).How did the movement navigate the transition from the old regime to the new one?That topic interested and interests me very much.
As I recount in Conservatives and the Constitution, racism and white supremacism -- at least in the admittedly thin, ordinary, as opposed to strenuous critical race theory understandings of those terms -- did not unite (or, given the book’s developmental focus, come to unite) the postwar right.There were plenty of exceptions, but, generally speaking, of the parts of the movement I canvas, white southern fundamentalist Christians (like Jerry Falwell Sr.) were the most outspokenly racist segregationists.But, although they opposed civil disobedience, and worried about the effects of a divided and demoralized country they understood to be facing an existential Cold War threat, white evangelical conservatives were better in that regard (Billy Graham invited Martin Luther King, Jr. to preach alongside him at the height of the civil rights movement), as were conservative Roman Catholics (although there were the issues that the Notre Dame historian John McGreevy discusses in his great book Parish Boundaries (1996), which sounds in recent histories of civil rights in the north). Offhand I don’t know the racial views of conservative LDS/Mormons in Utah and other mountain states conservatives (though perhaps that is in my unpublished materials; I would guess, given the whiteness of states like Idaho, Montana, or South Dakota), it was, for them, largely out of sight, out of mind).As I note in the book, befitting their status as (ex?) liberals, many neoconservatives not only supported the civil rights movement, but participated in it.Many conservatives simply did not concern themselves with racial issues one way or another, implicitly subsuming them in their minds to other matters (like free markets). But, perhaps most significantly, as Mark Graber mentions, Harry Jaffa and the West Coast Straussians in particular focused, and focus, not on (or only on) the eighteenth century and the eighteenth-century founders, but on the Civil War, Lincoln, the “equality of natural rights,” and the “new birth of freedom” Lincoln heralded at Gettysburg.
I think Mark is right that conservatives, and conservative originalists, these days (although not, to be sure, in Justice Stephen J. Field’s day) tend to overwhelmingly focus on the eighteenth-century founding at the expense of, if not to the exclusion of, the (plausibly) transformative constitutional changes wrought by the Reconstruction Amendments and the Civil War. In support of Mark’s claim, I’d like to call to the attention of Balkinization’s readers a superb, quantitatively cutting-edge (machine learning!) paper that essentially proves Mark’s point on this -- and, incidentally, that liberals and progressives tend to do the opposite -- by Columbia Law School’s David Pozen, Eric Talley, and Julian Nyarko, forthcoming in the Cornell Law Review (“A Computational Analysis of Constitutional Polarization”) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3351339).This difference is inscribed in the name and logo of The Federalist Society (and, less obviously, but perhaps by interesting contrast, in the more temporally indeterminate name “The American Constitution Society”).Although Martin Diamond is many respects the height of sobriety within postwar conservative constitutional theory, his pronouncement (quoted in my book) that “six writings tell nearly the whole story” of the meaning of the Constitution [The Declaration of Independence, the Articles of Confederation, the proceedings of the Federal Convention, the Constitution, The Federalist, and the anti-Federalist essays] is, to say the least, a strikingly willful, and probably indefensible, claim.
While unfortunately I could not get into it in this book (the material is in the two-thirds I had to cut that will appear in the future books), what Harry Jaffa and his wing of the movement (and some others too) do with the Civil War and Reconstruction is very interesting, and a matter on which, even in Conservatives and the Constitution, I venture some arguments.In Conservatives and the Constitution, I underline Jaffa’s emphasis on the equality of natural rights as being not only inherent in the Constitution, but its very foundation and first principle -- a view Jaffa articulates almost entirely in writing about chattel slavery as a moral abomination.When it came to the constitutional powers of the national government, Jaffa and many of his conservative movement compatriots were strong constitutional nationalists -- at least before the 1980s (this is explicated in the material in the future books).These nationalist Straussians argued that the Civil War Amendments conferred much broader powers on the federal government than was the case in the original eighteenth-century constitution.
Over time, however, that emphasis either dropped out, or was articulated in a different register as part of the trajectory of the development of constitutional conservatism that helped unite diverse movement factions.That was a complicated process.But to set it out briefly, the West Coast Straussian emphasis on the equality of natural rights that endured as a through-line in conservative constitutional thought was as a philosophical exposition of the moral foundations of American constitutionalism and constitutional law.Increasingly post-Civil Rights Act of 1964 and Voting Rights Act of 1965, that foundationalism was invoked not in matters involving racial justice or racial equality for African-Americans (although it was invoked as part of the “colorblind” reading of Fourteenth Amendment rights as evincing an affirmative conservative and Republican Party commitment to anti-racism and civil rights).It was increasingly invoked -- as it is largely today -- in “culture war” issues, especially concerning abortion, but also bioethics and gay rights.It was invoked for the proposition that the Constitution was anchored in, and could only be understood and applied within, the parameters of the natural law.In this regard, I would be remiss in not noting as well that the conservative embrace of their own rights revolution -- see, e.g., the Second Amendment, and the First Amendment’s protections for religious liberty and the freedom of speech -- which includes a full embrace of the doctrine of incorporation -- also presupposes an embrace of the Civil War as having wrought revolutionary changes to the American constitutional order.
That is more than enough for one post.But I thank Mark Graber not only for his very kind words on my book, but for raising a major question about its framing, and a host of major, closely-related substantive issues.
Ken Kersch is Professor of Political Science at Boston College. You can reach him by e-mail at kenneth.kersch at bc.edu