Confessions of Reviewer #2

For the Balkinization symposium in honor of Ken Kersch 

Mark A. Graber 

The most feared curse in the American academy is “May Reviewer #2 write your obituary, speak at your memorial service, or pen a memorial essay.”  I was the infamous reviewer #2 for Ken Kersch’s first book, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law.  Within a few pages, I recognized that my recommendation was going to be positive.  The manuscript obviously merited publication by the best university presses in the United States.  Kersch knew stuff.  The text combined remarkable elbow grease with a sophisticated theoretical foundation.  After making a brief note that some of the jargon might be reduced, I largely stopped grading the manuscript and started learning.

Constructing Civil Liberties has much to teach.  Professor Kersch challenged the view that contemporary liberal perspectives on criminal procedure, labor, and education were products of rational neutral principles replacing formalist legal prejudices.  He scorned the Whig histories that liberals too often told of civil liberties.  Constitutional development, he demonstrated, was always just one set of contested principles replacing another.  The ancient regime was never as formalist as liberals pretended.  The liberal regime was never the product of pure reason as liberals pretended.  Politics structured criminal, labor and education policy as much when progressives controlled government as when conservatives were in charge.  The publication recommendation was easy.

Reviewer #2 was nevertheless annoyed as Reviewer #2 is per wont to be.  Constructing Civil Liberties began with a lengthy exercise in political science theory.  At that stage in my career, I belonged to the “Just Do It” school of thought.  Just write your terrific account of constitutional development and let the theory peek in at the end, where you might spend a bit of time in a conclusion discussing problems in the academy as well as problems in the world.  Who really cares about whether you are making a contribution to the distinctive field of American Political Development or exactly what uniform you wear as a scholar.  What mattered to me was that Kersch was a scholar.  The other adjectives did not seem relevant.

I have become somewhat more supportive of Professor Kersch’s introduction over the years.  The field of American political/constitutional development needs strong theoretical foundations as well as good stories.  The project of detailing how and why politics matters, a project at the heart of much American constitutional development, helps us understand why, on the one hand, constitutional development is never the working out of precedent taught in the law schools or the mere march of political interests that occupies too much political science.  Constructing Civil Liberties and all of Professor Kersch’s work provided models for thinking about how the interaction of ideas and interests structure political life.  Thanks to Professor Kersch and other friends, my more recent work contains much longer accounts of the social science concerns that guide my research.  I still get annoyed when younger scholars worry about whether they are working in American Political Development or Political Theory or whatever.  Still, Professor Kersch and others taught me that for most younger scholars this is a professional necessity not to be snooted by senior members of the discipline.

The real reason Professor Kersch annoyed me, however, is that he clearly did not like liberals.  I was perfectly happy to treat the liberal triumph in civil liberties during the twentieth century as having strong political as well as intellectual roots.  I had done so in Transforming Free Speech.  I nevertheless admired the cultural pluralist strand of progressive thought developed in the work of John Dewey, Jane Addams, and Louis Brandeis.  Kersch too often regarded progressives as moralistic whiners.  His perspective was neither conservative nor libertarian that I could detect.  He simply disliked moralistic reformers and that dislike radiated in almost every chapter of Constructing Civil Liberties.  I often tell my students I reserve the right to be privately annoyed when they question New Deal Constitutionalism, but that cannot have any influence on their grade.  So with my review of Constructing Civil Liberties.  I was annoyed but enthusiastically recommended the publication of what has become a classic work in American constitutional development.

I returned to Constructing Civil Liberties at what I think was a crucial point in the 2024 national election.  Polls and focus groups highlighted how Democrats were bleeding young men.  The Obamas and other Democrats responded by telling young men they needed to do more to protect the rights of their sisters and mothers.  An editorial in the New York Times by a young woman bemoaned the lack of support the young men at her school exhibited for her rights.  Unsurprisingly, these appeals were not successful.  An increasing number of young men are now Republicans.  Donald Trump is now President of the United States.

Kersch proved of enormous help in thinking about why Democrats did not respond effectively to the increasing gender gap among younger voters.  My pragmatic liberals would have seen the problem immediately.  Young men are falling behind young women along many dimensions.  That many will catch up and exceed women in middle age hardly matters to them at this stage of life where a) they watch women get the highest grades and most prestigious prizes and b) get constantly lectured about male supremacy.  The liberals I imagined would have done something about this.  Pragmatic liberals would have asked what liberal programs can be designed to enable young men to compete academically with young women.  The liberals of the actual world did world.  They were Kersch’s liberals, with a religious fervor about gender equality that, while rooted in important realities, does not capture the reality of many young men on the ground.  Blinded by an ideological liberalism, they only remedy progressives could offer to disaffected men was to tell them to treat women better.  Not a recipe for success.

Kersch disliked liberalism, but not liberals.  That pretty much everyone writing in this symposium is a liberal highlights his gift for friendship, his intellectual integrity, and his scholarly generosity.  Nevertheless, as we search for a cure for Donald Trump and MAGA, we should return to Kersch’s dislike of liberalism.  Not all dislike for liberalism is rooted in racism, sexism, or some other tainted ism.  Kersch should have taught us that good reasons exist for a decent, intellectually driven, human being to be contemptuous of much of what is done under the progressive banner.  Understanding why I, and I suspect we, were sometimes annoyed by that contempt may be the first step to making our polity one that both we and he could celebrate. 

Mark Graber is the University System of Maryland Regents Professor at the University of Maryland Francis King Carey School of Law. He can be reached at mgraber@law.umaryland.edu.