Ann Southworth
Some scholars seeking
to explain how conservatives have gained the upper hand in battles over constitutional
doctrine have focused on the past four decades and the rise and influence of
the conservative legal movement. Ken Kersch’s book, Conservatives and the Constitution: Imagining Constitutional
Restoration in the Heyday of American Liberalism, urges us to pay attention
to an earlier period and to other players and broader processes. With respect
to all of them, he emphasizes the power of constitutional frames to motivate
and join together diverse elements of the conservative movement.
The rise of the conservative legal movement is an important part of the story of the conservative movement’s success in reshaping law and public policy. Since the late 1970s, conservatives have created an infrastructure of lawyers, advocacy organizations, and networks to support legal change. They have developed a deep bench of highly credentialed and committed lawyers and moved them into prominent positions in law firms, advocacy organizations, think tanks, and government. Republican Administrations have tapped that pool for judicial appointments, a process that has accelerated in the Trump Administration. A transformed federal judiciary, more sympathetic to conservatives’ concerns, has yielded major conservative litigation victories on a host of issues, and it is likely to continue to do so for decades to come.
But Kersch urges us to consider conservative constitutional thought in an earlier era to avoid being “transfixed by the iceberg’s tip while overlooking the mass looming below” (p. 361). He argues that the story of the ascent of constitutional conservatism “dates way back, in ways that are strikingly wide, arrestingly deep, and, as far as liberals should be concerned, disturbingly ambitious” (p. 361). His account focuses primarily on the “wilderness” years, from 1954 through 1980, when conservative constitutional thought occurred largely outside of law schools and was closely intertwined with broader currents of political discourse.
Most of the players in Kersch’s rich account are not the judges, lawyers, and legal academics who have dominated the conservative legal movement, but rather a diverse array of politicians, religious leaders, journalists, political philosophers, and economists. These constitutional theorists spoke to one another and to a popular audience through a constellation of conservative outlets backed by “true believers with fortunes” (p. 26). Constitutional meaning was a central concern of these actors, as it was for those who embraced originalism in the Reagan era, but the constitutional redeemers at the heart of Kersch’s account were not particularly interested in judicial restraint. Rather, they advanced a variety of arguments about foundational substantive constitutional commitments that they said had been abandoned or betrayed by liberals. Those claims about constitutional meaning were closely tied to broad and emotionally resonant themes about the purposes of government and America’s history. Kersch insists that understanding this “more capacious” constitutional theorizing on the pre-Reagan Right is critical for comprehending the power and resilience of the Republican coalition.
The process of constitutional politics described by Kersch is one in which ideas about constitutional meaning take shape over time and are partly contingent on political context and opportunities. In his telling, the Republican Party’s assortment of positions on constitutional issues is less about policy and principle than frames and narratives. Constitutional narratives have been “a major force in the postwar American conservative ascendancy” (p. xii), both because constitutional consciousness has been a significant source of motivation for conservatives and because the process of reworking and integrating constitutional stories has helped to bind together the movement’s diverse constituencies (p. x).
The book’s primary contribution is to excavate the deep stories that underlie the commitments of the various constituencies of the conservative coalition and to show how they have been woven together into larger stories about the nation’s economic and political history --“memory-saturated, ethically constitutive stories of peoplehood that forge, motivate, and sustain movements in the face of disagreement (within limits, to be sure) over policy and principle” (xvii). Kersch is right to suggest that understanding those narratives and the processes by which they have been provisionally reconciled is critical for explaining how different strands of conservatives have come to believe that more unites than divides them and that they all stand on one side of a high stakes battle against secular liberals/progressives. This coalescing of narratives has enabled the conservative movement’s inhabitants to “imagine themselves as part of a coherent community, pursuing a common political (and constitutional), cause” (p. x) – to restore constitutional government in America.
Knitting together disparate groups of conservatives and reconciling their deep stories has been no small feat. It has required plenty of what Kersch calls “culture work” — efforts to harmonize seemingly incompatible strands of constitutional thought. Participants in the movement have told different stories about “how the Constitution came into being and why; what it was, did, and does; how it was used respected, honored, lost, abandoned, or betrayed; how it succeeded or failed, proved durable, workable, distorting, hopeless, or malign; who it helped or hurt . . .” (p. 367). It has required considerable revising of those narratives, for example, to reconcile libertarianism and free market capitalism with Evangelical Christian theology, and to forge a common identity among Christian Fundamentalists, conservative Evangelical Protestants, and conservative Roman Catholics, despite tensions among them. The call for constitutional restoration has become an effective rallying cry of the modern conservative movement only because conservatives have found frames that link a motley collection of ideas.
Kersch says that originalism, like the stories advanced and reworked in the pre-Reagan era, was a “developmental phenomenon,” which emerged over time as “a consensus position within a conceptually, and sometimes politically, fractured movement” that “was working, during the postwar wilderness years, to forge a functional political unity” (p. 100). Originalism was never inherently conservative; some liberals had advanced similar theories before conservatives adopted the idea. Many conservatives embraced originalism because it was strategically useful, a way of discrediting and “knee-capping” (p. 29) the development of liberal precedent on federal government power and the rights of criminal defendants. For the Republican Party, originalism proved to be an extremely effective mobilizing frame. Kersch suggests that we should find it unsurprising that versions of originalism emphasizing judicial restraint have given way to more “engaged” approaches to judging, and that many conservatives now unabashedly seek to appoint judges who are committed to overturning well-established constitutional precedents, since many conservatives were never particularly committed to judicial restraint. As they have filled the courts with judges drawn from their own ranks, they have predictably taken opportunities to reverse existing doctrine and to aggressively police what they view as constitutional restrictions on government power.
Some skeptics surely will object that Kersch’s book takes conservative constitutional narratives too seriously. He anticipates this disagreement, noting that many contemporary scholars treat conservative constitutional consciousness as a “side-show” that distracts from the “’real’ forces driving the American Right,” such as “racism, the advancement of the rich, or, more generally, the reinforcement of the hierarchies that promote the interests of society’s haves” (p. xii). But Kersch insists that conservative constitutional narratives, frames and rhetoric deserve attention, if only because many movement members appear to believe in them and act on them, and because they appear to have operated as a “quasi-independent motivating force” in conservative coalition politics (xii). Kersch is not arguing that constitutional consciousness is the whole story or that the “culture work” required to reconcile incompatible constitutional frames produces intellectually respectable syntheses. He characterizes the fashioning and refashioning of narratives to forge collective identities as a species of self-description and political messaging: “a complicated process, involving highly selective remembering and forgetting, spotlighting and minimizing, downplaying and ignoring, interpreting and reinterpreting, anathematizing and celebrating” (xiii). We need to understand these constitutional narratives, he suggests, not because he believes them to be true, compelling and complete, but because they have influenced behavior and shaped the conservative movement.
Kersch does not trace how the narratives he identifies actually influenced political behavior, but that is not his project. My own research on lawyers and advocacy organizations active in battles over the constitutionality of campaign finance regulation supports his assertion that frames – especially frames rooted in claims about constitutional meaning -- can be tremendously useful in building coalitions and mobilizing support behind campaigns for legal change. Kersch’s book helps us appreciate how and why constitutional frames matter. This is a theme worthy of serious consideration by those who seek to understand, and/or to reconfigure, the nation’s political alignments.
Ann Southworth is Professor of Law and Founding Faculty Member asouthworth@law.uci.eduat the University of California-Irvine. You can reach her by e-mail at