Balkinization: The Other Side of the Mountain: Restoration, Redemption, and Originalism

The Other Side of the Mountain: Restoration, Redemption, and Originalism

Guest Blogger

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

Ken I. Kersch

My new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019), does many things -- some of which I had in mind, some of which I was only half-conscious, and the rest of which is for others to say. One thing I clearly wanted to do in mapping what a broad spectrum of movement conservatives were saying and writing about the U.S. Constitution in the postwar, pre-Reagan “wilderness” years -- the heyday of American liberalism -- was to suggest that the understandings of contemporary readers concerned with the trajectory of American political life generally, and the nature and trajectory of modern conservatism more specifically, might be deepened by looking at conservatism and conservative constitutionalism through new lenses, asking different questions, and gathering new information.

The posts of Ann Southworth, Sandy Levinson, Steve Griffin in particular do the book the great justice of describing it accurately, and underlining precisely what it aspires to do, and does. By some happy alchemy, moreover, they did so prismatically: Ann, Sandy, and Steve each describe the book from a different angle. Together, their posts offer a rounded portrait of the book.

Although both Mark Tushnet’s and Andy Koppelman’s posts make significant observations and raise important, even key, questions -- which I will address in due course -- they are also, to my mind, a bit off-base. In framing the book as essentially involving the two separate spheres of “political scientists” and legalist originalists, Tushnet perhaps inadvertently suggests that this is a book is mostly about constitutional argument by conservative political scientists in the postwar years. That is not the case, as the descriptions of the book by the other contributors to the Balkinization symposium make clear.

I do devote the sustained attention to the constitutional thought of a group of important political scientists. But even in Chapter Two -- where I set out the sophisticated constitutional theory advanced in the postwar era by political scientists/philosophers like Willmoore Kendall, Martin Diamond, and Harry V. Jaffa -- I also draw extensively from constitutional argument advanced by lawyers in The American Bar Association Journal, journalists like James Jackson Kilpatrick in National Review (and elsewhere), literature scholars/English Professors (the late Jeffrey Hart; M.E. “Mel” Bradford; Richard Weaver), clerics and theologians (including John Courtney Murray, SJ), and law school based legal academic constitutional theorists (William Winslow Crosskey; Philip Kurland; Alexander Bickel, Herbert Wechsler; Raoul Berger; Robert Bork).

This book’s focus is decidedly not constitutional theory by political scientists. It is constitutional theory and thought in the period I cover wherever it may occur. Some of that -- and some of the best of that, given the absence of conservative constitutional theory from that era’s law schools -- happens to have been done by political scientists. And for that reason, it is included amongst many other things in this book.

I am not in a position to deny the accuracy of Andy Koppelman’s characterization of Conservatives and the Constitution as being about “scary stories” told by political “extremists” -- largely because what is “scary,” and who and what views are “extremist” is for him and not me to say. Andy, I believe, is a devotee of the political philosopher John Rawls. I know Rawlsians have very strict parameters for what is reasonable. But I did not intend to write a book about conservative extremists in this period (for that, see George Hawley’s Right-Wing Critics of American Conservatism (University Press of Kansas, 2016) and Making Sense of the Alt-Right (Columbia University Press, 2017). To be sure, I do alight along the way upon some extremists like David Barton, Rousas Rushdoony, and (more extensively) Ayn Rand, because they are in the mix. But the book is primarily focused on the constitutional argument within the broad mainstream of postwar movement conservatism. My sources are mostly outlets like Reader’s Digest, The American Bar Association Journal, U.S. News and World Report, The Wall Street Journal, network TV shows, Rand-McNally publishers, and the University of Chicago Press, along with conservative movement mainstays like Regnery, Human Events, Modern Age, and National Review. If most of the people I write about are extremists, then postwar movement conservatism -- and perhaps conservatism per se -- are extremist. That they may very well be. But, if so, it is the same extremism that has predominated in the Republican Party since 1980. I think it is more productive to call it “conservatism,” or “movement conservatism,” than ‘scary stories about extremists.’

But with that brush cleared, I want to turn to a central, important substantive question raised by both Mark Tushnet and Gary Lawson, which is about whether there is any relationship between the political and constitutional argument I chronicle extensively in the book and legal academic and Meese Justice Department/Federalist Society originalism that Tushnet argues effectively succeeded (and obviated?) it.

I think that is a fair question, and a good question. But I have problems with this framing along several dimensions. First, I did not posit Gary Lawson, Robert Bork, or Edwin Meese as the dependent variables in this book. For that reason, I was not searching in this book for what caused them. The Federalist Society and what I argue is the thin legalist version of originalism are an integral part of the book. But they are discussed here as one thread, line, or species of constitutional conservatism. They are, in other words, contextualized. I have tried to situate The Federalist Society and legalist originalism -- which have already been discussed extensively in excellent work by others -- within a wider frame of reference of the postwar conservative movement, as a part of that family of theories and ideas, rather than its apotheosis or culmination.

One thing that Conservatives and the Constitution might suggest -- and here Sandy Levinson’s, Ann Southworth’s, and Steve Griffin’s posts are enlightening -- is something to more interesting than what caused Edwin Meese, and the inside baseball story of who bent his ear -- is that postwar conservative constitutionalism might have a developmental trajectory (I am, after all, a scholar of American political and constitutional development). Put otherwise, postwar conservative constitutionalism might have moved forward in a succession of identifiable stages. The first stage, as Ann Southworth nicely summarizes in her post, was one of frame-setting and coalition-building. It was the period in which the conservative movement in the electorate (to borrow from the political scientist V.O. Key) worked toward a common language and a common set of narratives about the relation of the Constitution to the American polity. This was then followed by subsequent stages of: 2) legal mobilization; and 3) institutional implementation. And that means both initial implementation (the Meese Justice Department and the first Federalist Society (we may, in time, come to think of The Federalist Society in stages)), when it is still carrying the traces of its out-of-power strategies and tropes, and its later, and more mature and self-confident stages. After all, time continues, even for regimes in power (see Stephen Skowronek).

Just to be clear, the book is not written in the mode of modeling and model testing. I’m not sure, for one thing, of the degree to which I would want to commit to isolating these stages, since the dynamics of all three continue across time and development. And there is always the question of the next stage coming. But I do think it is useful to at least think with such a model, and reflect on its possible dynamics. If one thinks at it in this way, Conservatives and the Constitution is in dialogue with important theories of constitutional regimes and constitutional change like Bruce Ackerman’s. One thing Conservatives and the Constitution is about is what is going on in the out-of-power, would-be conservative constitutional regime in waiting over the course of the time it gradually progresses from out-to-in (from its “wilderness” years in “the heyday of American liberalism” to the Reagan election, and since). I show, I think, that that is a complicated and interesting developmental story. Even those primarily interested in the present and the future, as I’m grateful to Sandy Levinson for underlining in his post, will want, and perhaps even need, to know it.

Tushnet has his own implicit chronological stages of development thesis. He seems to be asking that I take (Bork; Scalia;Meese) legalist originalism as my dependent variable for this book, since he positions it as the successor (“politically, if not intellectually”) to the broad and rich vein of constitutional thought my book describes in Stage One of the developmental arc. Given the old/superseded verses new/fully-realized framing, Tushnet looks to Conservatives and the Constitution for the establishment of a direct relationship between the things in Stage One caused Stage Two. And then, by implication, apparently, we are done. It’s a wrap; history stops. This is Tushnet’s very own “End of History” thesis.

Tushnet’s formulation that ‘that was the past, and conservative movement constitutional thought has now (and forever?) it has been superseded by the professionals in the legal academy’ seem to me somewhat out-of-touch with what conservatism is, and how it is likely to develop, both inside the courts and out.

Yes, there was, at a certain moment, an uncertain degree of autonomy to the legalist Bork/Meese/Scalia originalism (although that, as I and others have shown, was far from autonomous from progressive and legal process administrative liberal political thought of an earlier day; after all, these conservatives were living as outsiders inside the constitutional regime forged by that progressive/liberal thought). Not only do I acknowledge that in this book, but I invite it. Its quasi-autonomy is central to describing the developmental arc of postwar through the Reagan administration (and on to Trump).

But as Sandy Levinson rightly suggests in his post, The Federalist Society types wouldn’t even have been appointed without the ostensibly irrelevant and ostensibly superseded constitutional thought existing outside the courts (see, today, Mark Levin, Dinesh D’Souza, Tucker Carlson, Sean Hannity), in the party, and the electorate. Where, after all, are they getting their stories about the betrayal of the constitution? From the ostensibly irrelevant and the ostensibly superseded stuff I have related in this book, and its contemporary analogues (a lot of it is actually the same stuff, re-published, revived, or newly posted on the internet: readers of Conservatives and the Constitution will see that there is a striking level of consistency and continuity from past to present). These narratives in the party and in the electorate are why Republican voters care so much about the Supreme Court in the first place. I defy anyone to read my chapter on “Evangelical and Fundamentalist Christian Stories” about the Constitution (Chapter Five) and tell me that it is not deeply related to the constitutional attack on Roe v. Wade (1973) in both the Reagan administration, and, today, in places like Alabama, Louisiana, and Missouri. As Steve Griffin very aptly pointed out in his post, Clarence Thomas’s likening of abortion to eugenics is not coming from academic legal theory; it is coming from the ostensibly irrelevant and ostensibly superseded stuff I’m talking about in this book. Neil Gorsuch literally has a Ph.D. in the ostensibly irrelevant and ostensibly superseded stuff I’m talking about in this book. I’m sure some of the latest conservative judicial appointee are rooted in the Federalist Society vision circa 1982-1988. But others -- an increasing number -- are likely to be rooted in the substantive older-revived-repackaged-and-hence-apparently-newer substantive movement understandings, especially now that the judicial restraint imperative (a major feature of the Holmesian/Frankfurterian/Legal Process legalism) has fallen away, or is being expressly repudiated (see Steven Calabresi’s recent Northwestern Law Review article dispatching James Bradley Thayer). If Amy Coney Barrett had been appointed instead of Brett Kavanaugh, the relevance of the ostensibly irrelevant and ostensibly superseded stuff I’m talking about in this book would be even more obvious (I would venture that it may very well loom larger for Kavanaugh himself twenty years hence). As Sandy Levinson emphasizes in his post, Catholic Right constitutional thought, whose origins, in their modern form, are largely in the period I discuss, has played a major role in shaping the worldviews of Supreme Court justices Clarence Thomas and Samuel Alito. But perhaps this is what Tushnet described as the “indirect” connection? To my mind, the connection is fairly direct.

Incidentally, another problem of the ‘what caused Gary Lawson, Robert Bork, and Edwin Meese’ framing is that I think this stuff is worth discussing for its own sake, whether or not it was read by Ed Meese or Gary Lawson. It is worth discussing because -- as Andy Koppelman sagely observes in one way, and as Ann Southworth and Sandy Levinson do in others -- it was a major factor in the political mobilization of the postwar American conservative movement -- for, as Koppelman puts it, for the creation of a public audience that want Supreme Court justices like Antonin Scalia, assisted by able clerks like Gary Lawson. Without a successful postwar conservative movement -- political mobilization -- there would have been no Meese Justice Department, no Federalist Society, no Antonin Scalia Supreme Court justiceship, or Gary Lawson clerkship. Constitutional argument in the public sphere, I show in Conservatives and the Constitution, was the beating heart of the political mobilization of the postwar American conservative movement.

Yet another problem I have with the Tushnet-Lawson formulation is that, as it happens, in fact both Edwin Meese and Ronald Reagan did read National Review, and, as I note, Reagan immersed himself in the writings of the ostensible extremists chronicled in this book, including the writings of “the people’s Austrian” Henry Hazlitt. Many of the political scientists that Mark Tushnet holds to have not had a “direct” influence on what came after wrote regularly and often for National Review and other conservative magazines. It is true that we can debate whether their influence through these conduits is better classed as “direct” or “indirect.” But their views were often widely known, and widely disseminated on the Right. Some of their work appeared in more academic form, to be sure. But popularized versions of that work were published in other more accessible and widely read fora. Indeed, the constitutional theory debates by political scientists I chronicle in Conservatives and the Constitution (including between East and West Coast Straussians) were fought out by surrogates (Jeffrey Hart v. Charles Kesler) in the pages of National Review. Hayek may have been a University of Chicago Professor and Nobel laureate scholar, but Road to Serfdom was excerpted in Reader’s Digest! Milton Friedman may have been a Nobel-prize winning theorist of monetary policy, but he also hosted a multi-part PBS series called Free to Choose! If lawyers, politicians, political operatives, and journalists read conservative magazines, or read conservative books -- or even watched PBS (see also William F. Buckley, Jr.’s Firing Line), they were reading and listening to conservative political scientists (and economists, and theologians, and lawyers, and the whole host of other types of people in addition to political scientists whose constitutional views I chronicle in my book).

I should add that I (also) present the academic versions of their views (particularly in Chapter Two) because I want to do those views intellectual justice. I will leave it to others to decide what to do with that intellectual history and more sophisticated theoretical exegesis. But on the back cover of Conservatives and the Constitution, Steve Teles suggests that it might serve going forward as a resource for an alternative “more thoughtful conservatism” that is not constrained by the parameters -- and the arcana and dogmas -- of the post-1980s legal academic originalism. Whether it “caused” or influenced Edwin Meese, in other words, it might very well “cause” what comes after Edwin Meese. If an intellectual history of conservatism shows us anything it is that we should be more careful in pronouncing a set of serious ideas to be consigned to the past, and to have been permanently “superseded.” The constitutional theory I explicate here, may prove in the opinion of some -- and not necessarily only conservatives -- to actually be good, or better, constitutional theory than some of the constitutional theory currently on offer. Whether in its initial or in revised form, it might even, as Andy Koppelman hopes, contribute to the tilling of a more reasonable, and broadly supported, constitutional common ground.

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

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