For the Balkinization symposium in honor of Ken Kersch
Mary Ziegler
I
discovered Ken Kersch’s work because of his important contributions to our
understanding of originalism, but as
Ken’s work shows, conservative constitutionalism is and was always richer,
broader, and much messier than the interpretive methods that are most prominent
now. It is to his work that I turn to understand the rise of the contemporary
conservative Christian legal advocacy, led by organizations like the Alliance
Defending Freedom (ADF), which is reshaping not only the law of everything from
abortion to transgender rights but also the very identity of the conservative
legal movement.
Ken committed to understanding the intellectual underpinnings of these disparate movements. He grasped, perhaps uniquely, how many intellectual traditions shape the contemporary conservative legal movement. Understanding and identifying these different threads allows us to see how mutable the conservative legal movement truly is, and to anticipate critical doctrinal and interpretive innovations before they develop.
Historians
have carefully studied how conservative Protestants and Catholics
became part of the Republican base
in the 1970s and 1980s.
Scholars have studied how these activists overcame their theological differences
to forge a potent political coalition. Historians, political scientists, and
legal scholars illustrated how conservative Christians contributed to constitutional
struggles over abortion, and successfully borrowed from progressive
constitutional strategies, from advocating for the freedom of speech
to claiming to protect women.
Ken’s work beautifully illustrated that the conservative Christian legal
movement had a much more ambitious constitutional agenda. Rather than simply
crafting effective constitutional arguments, the lawyers who lead the movement
planned to change the way conservatives understand the nation’s founding, the
way originalism works, and the very nature of our constitutional traditions.
Ken
was among the first to write about the constitutional thought in the early
conservative Christian legal movement. In the late 1970s and early 1980s,
figures like the theologian Francis Schaeffer and the lawyer John W. Whitehead
laid out the argument that the framers of the Constitution were Christian and
inscribed Christian understandings into its text and early interpretation.
While lawyers of the era did not make these arguments in court—even as men like
Whitehead successfully launched the first conservative Christian litigation
firms—the idea of fusing Christianity and originalism carried significant
weight among conservative Christians.
These
were the ideas that inspired the founding of Liberty Counsel (1989), the
American Center for Law and Justice (1990), and eventually, ADF. ADF first
promoted its view of the original meaning of the Constitution as a super
funder. Publicly, ADF and its peer organizations highlighted the importance of
free speech and religious liberty for conservative Christians—an appeal to
pluralism that made significant headway at the Supreme Court. But as
significantly, ADF sought to retool legal education to mainstream its ideas,
just as law and economics, originalism, textualism and other now-mainstream
approaches rooted in the conservative legal movement gained adherents. Uniquely
among its peers, ADF set out to construct a conservative Christian legal elite,
with alumni on the federal bench, in the academy, and in the nation’s most
prestigious law firms. Through the Blackstone Fellowship, founded in 2000, ADF
educated generations of talented law students in its approach to the law and
the Constitution. Trainings and webinars for affiliated attorneys, a network
that grew to thousands of attorneys, did the same for practicing attorneys. ADF
International also launched the Areté Academy, an international equivalent of
the Blackstone Fellowship, to spread its views among elite lawyers outside the
United States. In 2012, ADF officially pivoted from funding litigation to
spearheading it.
At
the same time, key popularizers worked to spread the same ideas about the
Constitution among parents and children. David Barton, the founder of a group
called WallBuilders, published a series of best-selling books laying out the
idea of a Christian founding; starting in Texas, he worked to reshape public
school curricula to accommodate his ideas. Barton, who taught in the Blackstone
program, influenced Mike Johnson, the speaker of the House of the
Representatives and a former prominent member of ADF. During his time at ADF,
Johnson represented the National Council on Bible Curriculum in Public Schools,
a group founded by a North Carolina paralegal in 1993 to encourage schools to
teach the Bible as a critically important part of the nation’s history. The
council boasted that its work had received the endorsement of a conservative
rabbi and some prominent conservative Catholic law professors, but the
curriculum primarily reflected an interpretation of Scripture that resonated
with conservative Protestants—and taught a version of U.S. history that framed
the nation and its Constitution as quintessentially Christian.
ADF’s
ideas are no longer on the margins of conservative legal advocacy. The
organization, which boasted $102 million in revenue in 2023, promoted
the Mississippi law in Dobbs v. Jackson
Women’s Health Organization and helped the state’s lawyers to defend it
before the Supreme Court. Since 2022, ADF has led the fight to limit access to
mifepristone, a pill used in more than half of all abortions. It has helped to
craft the arguments against what President Trump calls gender ideology,
writing model legislation on everything from bathroom access to transgender
athletes in high school sports. ADF has long questioned the idea that sex is a
suspect classification under the Fourteenth Amendment and has worked to reshape
the Court’s sex equality jurisprudence in cases like L.W. v. Skrmetti, which the Court will decide this term. And ADF
continues to litigate to change the Court’s understandings of the religion
clauses of the First Amendment, not least when it comes to the Establishment
Clause. ADF, for example, helped to shepherd another of this term’s
blockbusters, Oklahoma Statewide Charter
School Board v. Drummond, through the courts. Drummond involves the decision of the state charter school board to
approve a Catholic online school called St. Isidore of Seville. ADF has
championed the case as a way to demonstrate that “the ‘separation of church and
state’ isn’t a constitutional principle.”
What
comes through in Ken’s scholarship is a timely reminder to pay attention to the
influence of groups like ADF as much as we do the Federalist Society. The
conservative legal movement has long been a coalition. Its members sometimes
hold vastly different ideas about the Constitution and the law. To fully study
conservative constitutionalism requires us to take all these ideas seriously,
and to tell the story of how they shape our present moment.
At
the time of his passing, Ken was writing the second volume of his magisterial
study of conservative constitutionalism, and I had just begun a book on the
conservative Christian legal movement that took Ken’s work as its starting
point. After mourning the loss of Ken’s friendship, I mourned a second time for
this book that I so desperately wanted to be in the world.
I
am still grateful that Ken left us with such a tremendous starting point. The
study of conservative constitutionalism is more valuable than ever before. Ken
understood this. Even when he was in the middle of chemotherapy, he urged me to
send him drafts. The work, he said, is really important. He was right.
Mary
Ziegler is the Martin Luther King Jr. Professor of Law at the University of
California, Davis, School of Law. She can be reached at mziegler@ucdavis.edu.