Chief Justice John Robert’s dissenting opinion in Patchak v. Zinke (2018) makes a remarkable claim. The issue in that case was whether Congress could strip federal courts of jurisdiction over cases already pending in those tribunals. The majority relied in part on Ex parte McCardle (1868), which dismissed a case after oral argument but before judgment on the ground that Congress had repealed the federal law granting jurisdiction. Roberts’s dissent in Patchak urged a very narrow reading of McCardle because the Congress that passed the Repealer Act of 1868 was suspect. McCardle, he stated, “cav[ed] to the political dominance of the Radical Republicans.” What is remarkable about this assertion is that the same Republican majority that passed the Repealer Act of 1868 was in large part the Republican majority that framed the Fourteenth Amendment. The acts of early Reconstruction Congresses, from the originalist perspective championed by contemporary conservatives, ought to have special constitutional significance rather than be subject to unique constitutional discounts.
Patchak
is but one of many instances when conservatives, conservatives on the
Roberts Court in particular, diss the Second Founding in favor of the First
Founding. Chief Justice William Howard
Taft in Meyers v. United States (1926)
claimed that the Supreme Court should not treat as an important precedent the
Tenure of Office Act of 1867 because everyone knew Reconstruction was a time in
which Republicans were engaged in pure politics. Conservative analysis of the original meaning
of constitutional rights provisions discuss at length what the justice believes
those clauses meant in 1791, while barely touching on the understanding of the right
in 1868, even though in cases involving states the provision the justices are interpreting
is the due process clause of the Fourteenth Amendment which was ratified by the
Second Founders. Most notoriously, the
Supreme Court’s opinion in Shelby County
v. Holder (2012) striking down the preclearance formula of the Voting
Rights Act devotes considerable energy to determining what equal state
sovereignty meant in 1787, ignoring what state sovereignty meant to the framers
of the post-Civil War Amendments, who had no constitutional scruples about
imposing military rule and martial law in specific states.
Conservatives
and the Constitution: Imagining Constitutional Restoration in the Heyday of
American Liberalism provides the
intellectual scaffolding for the contemporary conservative celebration of the First
Founding and denigration of the Second. Ken
Kersch has done a spectacular job documenting conservative constitutional
thinking during the second third/third quarter of twentieth century. His remarkably thorough and important work
details the many conservative constitutional thinkers who returned to the eighteenth
century to find principles that might inspire or guide Americans in the twentieth
and now twenty-first century. The
literally hundreds of conservative writings discussed, however, find nothing in
Reconstruction worthy of contemporary emulation.
The Founders in Conservatives and the Constitution are always the First Founders of
1787. Kersch does a magnificent job
detailing the different ways conservatives conceptualized the eighteenth-century
founders. They were in some writings free
market capitalists committed to property rights. Other conservatives imagined the founders as evangelicals
committed to a Protestant revival or Thomists committed to natural law. They were Burkeans committed to political
stability and opposed to mass democracy. Conservatives who dispute the principles that
animated the founders of the American regime nevertheless agreed who those
founders were. They were such persons as
George Washington, James Madison, Alexander Hamilton, John Jay, John Marshall and
John Witherspoon. All lived in the late
eighteenth century. Jefferson is a
constitutional founder, even though he did not participate in the framing or
ratification debates over what became the Constitution of 1787 and was lukewarm
at most to the final product.
Kersch’s conservatives spend no time
restoring the Second Founding. A few, most
notably, Harry Jaffa, extol Abraham Lincoln as a politician and champion of the
natural right to equality under law. Other
conservatives during the second third/third quarter of the twentieth century condemned
Lincoln for upsetting the First Founding status quo. None bother with John Bingham, Thaddeus
Stevens, James Ashley, Charles Sumner or Lyman Trumbull, the persons primarily
responsible for the post-Civil War Amendments.
Rather, conservatives (and such liberals as John Kennedy) accepted Dunning
School history, which regarded Reconstruction as a time when radicals upset the
constitution cart by taking revenge on the south and too swiftly granting
rights to persons members of that school regarded as ill-prepared by training
and race to be American citizens. The First Founding needed to be restored,
from this perspective, because of the destructive turn during the Second
Founding. This privileging of the First Founding
explains why the conservatives Kersch presents and the Roberts Court echo the
central themes of Democratic opposition to the Civil Rights Acts of 1866 and
1875. The Democratic motto,“The
Constitution as it was,” lived in the twentieth century and lives in the
twenty-first century.
The Second Founding that
conservatives for almost a hundred years have marginalized and denigrated differs
in important ways from the First Founding that conservatives privilege and
celebrate. Republicans were more
committed to majority rule than Federalists.
The Constitution of Thaddeus Stevens is more committed to government
power as a means for constructing the good regime than the Constitution of
James Madison. Most important, while the
Constitution of 1787 seeks to submerge racial issues, the Constitution of 1868
makes the achievement of racial equality a fundamental goal of the American
regime. The conservatives Kersch
discusses focus on the First Founding rather than the Second because, until
very late in the day, achieving racial equality was, to say the least, not a
fundamental commitment of American constitutional conservatism.
Conservatives
and the Constitution also privileges
the First Founding rather than the Second.
Kersch’s substantive chapters are “Stories About Markets,” “Stories
About Communism,” “Evangelical and Fundamentalist Christian Stories,” and
“Right-Wing Roman Catholic Stories.”
This mirrors eighteenth century concerns with the merits of a commercial
republic, preventing external subversion and the role of religion in the new
regime. Consistent with First Founding
concerns that disputes over slavery not disrupt national unity, Kersch does not
have a chapter entitled “Stories About Race/Racial Hierarchies.” We learn that many conservative thinkers
believed in racial hierarchy, but little about the central role race played and
plays in conservative constitutional thought.
James Kirkpatrick is a federalist who in passing also favors segregation
rather than a segregationist who sees federalism as a means for preserving
white supremacy in the South. In
fairness to Kersch, conservative thinking on civil rights and liberties is
slated for a different volume that will presumably highlight the role of racism
in Kirkpatrick’s thought and in other conservative thinking at the time when
the Supreme Court was deciding Brown v. Board of Education.
Leaving race to a separate volume
may nevertheless be a mistake. Racial
hierarchy was as foundational to conservativism during the middle third/third
quarter of the twentieth century as markets, communism and religion. Race is omnipresent in conservative
constitutional thought, even when racial equality is not the explicit subject
of conversation. Conservatives expressed
strong opposition to liberal judicial activism only after judges protected the
rights of persons of color. Conservative
attacks on welfare benefits that are perceived as targeted to African-Americans
have always been more intense than conservative attacks on tax benefits that disproportionately
go to white businessmen. Many Protestant
private schools that became central to conservative politics were founded to
avoid desegregated public schools. Even
conservatives who were not racial bigots did not devote themselves to the cause
of racial justice during the 1940s and 1950s.
One suspects that Kersch will make more in royalties on Conservatives and the Constitution than
the conservatives he mentioned contributed to the NAACP Legal Defense Fund or allied
organizations during the campaign against segregated schools.
Status hierarchies were constitutive
of conservative thinking during the second third/third quarter of the twentieth
century. The conservatives Kersch writes
about were male supremacists. The conservative
capture of the Republican Party in 1980 was highlighted by the decision to
remove support for the Equal Rights Amendment from the GOP’s platform. Conservatives have historically insisted that
voting and related rights depend on property and education. Many thinkers presented in Conservatives and the Constitution
celebrated the United States as a Protestant country, insisting that both
immigration and educational policy be devoting to keeping America Christian,
and that reproductive policy favor conservative Christian notions of marriage and
sexuality.
Conservative thinking about the
post-Civil War Amendments, race and status hierarchies casts doubt on Kersch’s
claim that one historical marker of conservatism is opposition to social
planning. Slavery was a system of social
planning. So is segregation. Maintaining separate spheres, inculcating
Protestant moral virtues, policing sexual mores and keeping the poor from
voting booths all require extensive social planning and regulation. A fair claim can be made that much, though
certainly not all, liberal social planning and regulation is motivated by
efforts to dismantle the status hierarchies put in place by conservative social
planning and regulation.
This history of conservative social
planning raises fundamental questions about claimed conservative opposition to social
planning and regulation at present. That
opposition might be rooted in sincere beliefs about spontaneous ordering and
the virtues of individualism. The timing
of the conservative switch from opposition to Brown to opposition to affirmative action, however, suggests that
much conservative opposition to liberal social planning is based on the belief
that limiting liberal social planning aimed at promoting racial equality is the
second best means for preserving racial hierarchies in a regime in which more
direct measures to achieve white supremacy have been publicly discredited.