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.
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