For the Balkinization symposium in honor of Ken Kersch
Logan E. Sawyer III
In 2020, I wrote a highly complimentary review of Ken’s Conservatives and the Constitution. The book, I argued, was an insightful and novel explanation of perhaps the key issue in the history of post-war conservatism: how did a loose and potentially fractious association of different viewpoints and interests become a unified and highly coordinated political movement? It happened through the use of stories, Ken told us, stories about the Constitution, which were intentionally developed by movement intellectuals in a successful effort to build a conservative political identity. The book was required reading, I thought, for anyone looking to understand the American Right and its relationship to the law and the constitution. In retrospect, I was not nearly complimentary enough. Changes in our politics since I wrote that review have made Conservatives and the Constitution one of the surest guides not just to the creation of the New Right than emerged in the 1970s, but also to the ongoing reconstruction of the conservative movement that is happening today.
The
book’s ability to both explain the past and help us understand the present
undoubtedly resulted from Ken’s intelligence and his careful, seemingly
comprehensive reading. But he brought
more to the table than just those strengths.
One key, it seems to me, was his deep respect for the intellectual work
of his subjects. He was unafraid to
critique the conservative intellectuals he studied. He landed tough, but fair blows, especially
in the conclusion. But his disagreement
with his subjects on key issues did not distract him from his overriding
commitment to understand the construction of a conservative identity durable
and broad enough to support a winning political coalition. To achieve that, he had to avoid the
temptation to treat the work of conservative intellectuals as meaningless
camouflage for the ‘real’ issues that motivated them, and to do it even at the
risk that less careful readers might identify sympathy where Ken sought only
insight.
That
clear-eyed realism about the role of ideas in building winning political
alliances made Conservatives and the
Constitution required reading for those seeking to understand the post-war
American conservative movement. It
explained how a movement made up of religious social conservatives, foreign
policy neoconservatives, neoliberal opponents of the administrative state, and
many others overcame their quite serious disagreements to become a cohesive,
successful political movement. That
unity was built on stories about the constitution—what it meant, who had
abandoned it, and how its original promise might be restored. And he deftly guided the reader through
decades of debate among a kaleidoscopic variety of intellectuals who used such
stories to define for conservatives who was the ‘we’ and who was the ‘they.’
There was nothing natural, inevitable, or even easy about that process, he
showed. And it had enormous consequences
for American politics.
Ken’s
core creative insight was to reverse the conventional narrative of the
relationship between the conservative political movement and constitutional
law. The dominant thrust of scholarship
at the time was to ask how the conservative legal movement had become such an
effective vehicle for carrying into effect the goals of the broader political
movement it was seen to largely serve.
This was all outstanding and important work, as Ken recognized. It illuminated our understanding of how
institutions, legal arguments, and litigation campaigns were used so
successfully to transform American constitutional law. But that literature, Ken showed us, addressed
only one important part of the relationship between the constitution and
post-war conservatism. The Constitution
was not only re-made by the conservative movement, it helped create that
movement in the first place.
But
Conservatives and the Constitution is
not just important for those interested in Reaganite conservatism. It is also an indispensable guide to
contemporary politics. The first few
months of the new Presidential administration brought to light a host of ideas
about American society and government that had been hidden from most
commentators, even sophisticated ones.
But they would not have surprised Ken.
To focus on originalism, the Federalist Society, and the other
professionalized ideas and institutions of the conservative legal moment, he
wrote, was to be “transfixed by the iceberg’s tip while overlooking the hulking
mass looming below.” Those ideas and
institutions were not, for some conservatives, the ultimate goal. Instead, they were just the “opening moves in
a much larger struggle aimed more broadly at political, institutional, and
cultural transformation” (361). In 2019,
that was a surprising assertion. Today,
it seems the only reasonable view.
To
be sure, understanding the current contest to re-define what it means to be a
conservative must start from a clear-eyed understanding of the movement that
came before. But it is also true that
the new conflicts within the remade Republican party have made even some quite
recent work on conservatism seem distant from immediate concerns. The opposite has happened with Conservatives and the Constitution. Ken’s insightful analysis together with his
ability to explain the arguments and perspectives of conservative intellectuals
to scholars who share few of their starting assumptions, has made his book the
surest the most complete and prescient guide to the disposition of forces in
the battle for the future of conservatism.
As
a result, were I writing a review of Conservatives
and the Constitution today, I would emphasize not just how much it can
teach us about the historical creation of a unified conservative movement, but
also why all the intellectual work Ken details was necessary. Ken’s thoughtful reconstruction of the wide
variety of conservative thought reveals the long-standing tectonic plates that,
while hidden below the surface for decades, have burst into full view and are
helping to redefine conservatism.
Catholic post-liberals, West-Coast Straussians, evangelical and
fundamentalist Protestants, and others struggle for dominance. Part of that process is the construction of
new alliances, some of which are built around the constitution, some of which
are not. This new conservatism may not
end up defining itself through stories about the constitution, as the old
did. But Ken’s work helps explain what is
happening. Even in 2019, he knew a guide
was needed. Liberals, he feared then,
were “punching in the dark” (362) as they tried to engage with contemporary
conservatism. They were missing the
wellsprings of conservative identity founded in non-lawyerly, non-professional
constitutional theorizing. Today, with
attacks on the liberal order coming almost too fast to track, the need for that
understanding is more urgent than ever.
And there is no better guide than Ken.
It is a tremendous loss that he is no longer here to show us the way.
Perhaps the highest praise one can give a scholar is that their work opens the field to new questions that need answers. Given the richness and importance of Ken’s work, there are many places to productively build on his insights. As for me, I am captivated by the relationship between what he identified as tip of the iceberg—the ideas and institutions of the professional, lawyerly conservative legal movement—and the hulking mass of sophisticated, but non-professional constitutional theorizing he revealed. As I continue to write a history of originalism, I wonder if the professional constitutional debates did more than just hide the process of conservative identity-formation from liberals, as Ken argued it did. I wonder if, in the years following the primary focus of Conservatives and the Constitution, the conservative legal movement’s professionalized constitution also constrained the interest among conservative leaders for the more radical visions that were swirling beneath the surface and that have now overturned the iceberg of conservative self-understanding. I wish I could reach out to Ken and ask what he thought. But as I seek my own answers, his insights will continue to light the way.
Logan Sawyer is the J. Alton Hosch Professor of Law at the University of Georgia School of Law. He can be reached at lesawyer@uga.edu.