For the Balkinization symposium in honor of Ken Kersch
James E. Fleming and Linda C. McClain
We
had the good fortune and great pleasure to be good friends of and in
intellectual conversation with Ken Kersch. We appreciate the opportunity,
through this Balkinization symposium on his work, to try to honor his legacy by
offering some thoughts on his erudite and sobering work concerning conservative
political and constitutional thought in the U.S.
A recent “Best Sellers” list in the New York Times Book Review describes Timothy Snyder’s On Tyranny as follows: “Twenty lessons from the 20th century about the course of tyranny.” Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the 20th century about the development of conservative constitutional thought and activism. These lessons are relevant for understanding the present political moment, filled with concerns that the U.S., several months into the second Trump Administration, is lurching toward tyranny, authoritarianism, and totalitarianism. Kersch’s book highlights that a recurring refrain by conservative thought-makers and politicians during their “wilderness years,” or “postwar liberalism’s heyday between 1954 and 1980,” was that conservatism’s enemies—including not only “godless communism,” moral relativism, and secularism, but also liberalism and liberal “living” constitutionalism—were leading the U.S. toward totalitarianism and authoritarianism. As his subtitle indicates, conservatives envisioned constitutional restoration (and redemption), to be ushered in when Republicans returned to political power and control of the judiciary. In this post, we sketch five lessons from Kersch’s book.
1.
Narratives matter. From its opening
pages, Conservatives and the Constitution
argues that understanding the modern conservative movement and what
conservatives mean by “constitutional restoration” requires examining how the
various strands of conservativism—”Fundamentalist and Evangelical Christians,
right-wing Roman Catholics, fervent anticommunists, and anti-statist
libertarians”—all “told passion-laden and memory-drenched stories” about the
U.S.’s “history and trajectory and their place within it” (xiii). This provided
“motivation for, and prologue to, imagine the country’s future, should they
reclaim power to direct it” (Id.).
Kersch meticulously explicates those different narratives within the modern
conservative movement, charting how they shared, as a “motivating and unifying
rallying cry,” the “call for constitutional restoration and redemption” (367).
Constitutional scholars in recent decades—including Jack Balkin, Peggy Cooper Davis, Reva Siegel, and Serena Mayeri—have identified the critical role of constitutional memory, including the stories people tell about the Founding, the Framers, the Constitution, and the meaning of famous constitutional law cases. Kersch’s book is a rich resource in capturing the strands of conservative narrative and constitutional memory. In Trump 2.0, the need to focus on narrative seems even more pressing. As Kersch observes:
There are, after all, different ways of telling the story of 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 is helped or hurt, served, advanced, privileged, marginalized, or oppressed; when any of these happened, or did not; who deserves credit, honor, or blame; and what these imply or teach about the contemporary and future problems and possibilities of individuals, the nation, and humanity (368).
Liberals and progressives, he adds, tell their own stories about these matters. After the 2024 election, some commentators have argued that liberals and progressives have to construct more effective constitutional narratives. Further, in the face of evident backlash against gender equality (as in the bellicose (“bro”) masculinity of the Trump cabinet), Tarana Burke (founder of MeToo) argues that progressives are losing the “narrative game.”
2. Conservatives view the (liberal) American
regulatory state as akin to communism. Conservatives and the Constitution
explores a striking phenomenon in U.S. opposition to communism. On the one
hand, “a staunch anticommunism was a defining feature of postwar American
conservatism,” as well as “the consistent position” of leading liberal
politicians and liberal organizations (201). On the other hand, the Vietnam War
challenged this “consensus” position, as some liberal opponents of the Vietnam
war blamed it on “an ill-judged anticommunist zeal” (Id.). Meanwhile, for many on the right, “communism” became the
preeminent enemy: “the existential threat to the very survival of John
Winthrop’s ‘City on a Hill,’ of God’s chosen nation” (202). And “communism”
also became a “heuristic” for “understanding, tarring, and damning the liberal
thought-leaders and policy intellectuals now building out the modern American
state” (203). These Cold War conservatives viewed those liberals as “domestic
analogues to Soviet Communism’s vanguard Leninist cadres” (Id.).
Given
that many of the Right’s outspoken anticommunist conservatives began as “communist
or socialist intellectuals steeped in radical political thought,” Kersch
theorizes that many “transferred their radical faith, zeal, militancy, and
Manicheanism from communism to anticommunism” (207). Because communism, some
argued, was an “aggressive faith that rejects God,” it was necessary to shore
up the understanding of the U.S. as a Christian nation, through such “ceremonial
deism” as adding “In God We Trust” to U.S. currency and the language, “One
Nation Under God,” to the Pledge of Allegiance (which itself was only adopted
as the official pledge in 1945) (212-213). The effort, however, to add a
Christian Amendment to the Constitution—to correct the Framers’ “founding error”
of not mentioning “God” in that document—did not succeed (213).
There
is notable continuity between the anticommunism of that era and anti-liberalism
today. Then, as now, conservatives find an “existential threat” lurking in “the
country’s modern New Deal administrative, regulatory, and social welfare
programs” (244)—warranting the chainsaw-brandishing Elon Musk’s’ zealous
dismantling. Further, in the 2024 presidential election, President Trump
resorted to the “Red-baiting playbook,” calling Democratic nominee Vice
President Kamala Harris “Comrade Kamala”
and falsely claiming that she had “always been a communist.” Trump and
prominent supporters (including Musk) repeatedly branded Harris and Governor
Tim Walz and their policies as “communist,” Marxist, or Leninist. To any
liberals or progressives who think Trump was exaggerating for rhetorical
purposes and that many Republicans accepted this, Kersch’s book provides a
sobering correction—it enables us to see the straight line connecting 1950s
anticommunism and contemporary anti-liberalism and Christian nationalism.
In Project 2025 (Mandate for Leadership: The Conservative Promise), the Foreword by Kevin D. Roberts refers to President Reagan as defeating the “beasts” of “the Soviet Union, the socialism of 1970s liberals, and the predatory deviancy of cultural elites” (3). It also links progressivism and “wokeism” to Communism. Thus, in Promise #4: Secure Our God-Given Individual Right to Enjoy “The Blessings of Liberty,” Roberts argues that “the American people” have rejected “slavery, second-class citizenship for women, mercantilism, socialism, Wilsonian globalism, Fascism, Communism, and (today) wokeism.” Yet, “to the Left, these assertions of patriotic self-assurance are just so many signs of our moral depravity and intellectual inferiority—proof that, in fact, we need a ruling elite to making decisions for us” (14). Roberts also treats “Communism” as a synonym for socialism, Marxism, progressivism, and Fascism.
3.
A “co-belligerent” Christian
constitutionalism—and nationalism—united Evangelical Christians and the
Catholic Right and put them on the “right” side of civil rights. Conservatives
and the Constitution intricately charts the emergence of what Kersch calls
a “Christian co-belligerence,” uniting Evangelicals and conservative Catholics,
among other “religiously diverse strands of the Religious Right,” under “the
Constitution’s banner” (350). He argues that conservative Catholics played a
growing role in this effort. While this might seem “surprising,” given the “anti-Catholic
Protestantism” and “Enlightenment liberalism” of the Founders, Kersch explains
that this was due to conservative Catholics re-narrating the nation’s history
as “anchored in the commitments and principles of the Catholic faith,” so that “only a Roman Catholic framework could
fully illuminate the American Founders’ achievement” (357). (Since Kersch
wrote, we have seen Adrian Vermeule’s well-known argument for a “common good
constitutionalism” rooted in the classical tradition. As another example, in Classical and
Christian Origins of American Politics: Political Theology, Natural Law, and
the Christian Founding, Kody W.
Cooper and Justin Buckley Dyer argue that “ideas central to the American
founding . . . presupposed classical natural law and theology” and that there
is a “deep, deep continuity” from Aristotle and Aquinas to the founding (7).)
At an institutional level, Kersch points out how efforts of prominent figures
such as Professor Robert P. George of Princeton University, an “intellectual
impresario of the nation’s far Right,” have helped to forge the “co-belligerence
that has united the once theologically divided factions of the modern Religious
Right and immensely strengthened their political and legal influence” (358).
Redeeming the “American constitutional project” is a central aim (Id.). Such efforts also require civic
narratives.
Kersch
argues that culture wars have played a large role in this narrative. Decades
ago, Evangelical and Fundamentalist Christians who helped sweep President
Reagan to power built bridges with conservative Catholics through an “overarching
story of the crisis of Christian civilization” as being on “the verge of
succumbing to an existential threat launched by the secularists, humanists,
positivists, historicists, and nihilists who supported abortion, socialism, and
gay rights” (367). He observes that this political and constitutional coalition
has held together for nearly half a century (Id.).
In
his conclusion, Kersch notes the striking degree to which this co-belligerent
Christian Right has “become second to none in repeatedly and aggressively
denouncing chattel slavery,” a phenomenon he calls a “strident,” “vicarious abolitionism” (369). As he
explains, the Christian Right engages in re-narrating “the history of the
nineteenth-century legal and constitutional order” in ways supportive of their “co-belligerent
compatriots” (373). For example, as Evangelicals praise Catholic “systematic
theology” as “simply following the path of moral logic to which any reasonable
person must assent,” Roman Catholic constitutionalists praise “the role that
Godly Evangelical Christians” played in ending chattel slavery (Id.). However, as Kersch points out, “the
distinction between the northern Evangelical abolitionists who opposed chattel
slavery and the mainly (white) southern
Evangelical Christians who fervently enlisted Scripture in justifying and
defending it” is one on which “the contemporary Christian Right, rooted in the
South, chooses not to dwell” (Id.).
Kersch
observes that this “abolitionism” also “seems to strangely co-exist with a
palpable indifference to the concerns of contemporary African Americans on
issues such as the carceral state, police brutality, voting rights, and the
racism of President Trump (among others)” (Id.).
The contemporary Right then uses this “fire-breathing abolitionism” as a “bludgeon
to pummel liberals—or, rather, progressives—who, presumably, are thoroughgoing
positivists, utilitarians, historicists, secularists, cultural relativists, and
nihilists” (370). They seem to find chattel slavery’s “contemporary legacy in
the push for progressivism and abortion rights and gay rights” (371). To this,
we would add, writing in 2025, and given the rhetoric of the 2024 election, the
rights of transgender persons. The historical analogies drawn by these
vicarious abolitionists cast “conservatives” in “the role of Frederick Douglass
and Abraham Lincoln, while the liberals and progressives are cast as Roger
Brooke Taney, the infamous author of Dred
Scott, and the slavery-accommodating Illinois Senator Stephen A. Douglas .
. . if not worse” (370).
The trend that Kersch identified in 2019 is quite pertinent in 2025: By executive order, President Trump re-established the 1776 Commission to promote “patriotic education.” In its 1776 Report, the Commission drew precisely the parallels that Kersch mentions, treating all civil rights developments since the enactment of the Civil Rights Act of 1964 as moves toward an illegitimate “color conscious” rather than “colorblind” society. Both Project 2025 and the slew of executive orders condemning “DEI” and “discriminatory equity ideology” and “gender ideology” implausibly and dangerously invert understandings of “civil rights.”
4. The right settled on originalism only after
a broader constitutional theory debate concerning substantive visions. Conservative
constitutional visions were the primary driving forces toward unity on the
basis of originalism. In 1954, it was not preordained that the many strands of
conservative constitutional thought would settle on originalism as its fighting
faith, or that originalism would unite the right. To be sure, we see a
proto-originalism in documents resisting Brown
v. Board of Education, like the Southern Manifesto and Nullification
Resolutions. We see the very same proto-originalism in the briefs filed in the
1954 re-argument in Brown in support
of reaffirming Plessy v. Ferguson.
What
is more, 1950s proto-originalist liberals including Justice Hugo Black and
Professor W.W. Crosskey had demonstrated the usefulness of originalism as a
wrecking ball for tearing down doctrines standing in the way of instantiation
of a substantive vision of the Constitution (83-85). But, as Kersch
clear-headedly and painstakingly recounts, the many strands of conservative
constitutional thought largely existed outside the courts as substantive
constitutional visions, not lawyerly conceptions of how to interpret the
Constitution.
It is commonplace for critics of originalism to argue that it is a cover or disguise for the imposition of conservative views. Critics typically deliver these criticisms as reductive, disparaging put-downs of sanctimonious conservative pretensions to neutrality or objectivity in constitutional interpretation. Kersch’s book, without being reductive or disparaging, richly demonstrates that the primary driving forces behind the unification of conservativism on the basis of originalism are conservative substantive visions.
5.
As conservatives gained control of the
judiciary, a new “originalism” licensed aggressive judicial review by
conservative judges to promote conservative substantive visions. Like Keith
Whittington, Kersch distinguishes two phases in the development of originalism:
(1) the initial proceduralist and institutionalist call for “judicial restraint”
in criticisms that delegitimize the decisions of the Warren Court and the
moderately conservative Burger Court, at the time when early originalists were
still voices crying in the wilderness (Bork (1971), Berger (1977), and Scalia
(1989)), followed by (2) the emergence of the new originalism as a program for
affirmatively implementing conservative substantive visions of the Constitution
once conservatives become a governing majority on the Supreme Court. Although
the justices on the Roberts Court would not admit it, they clearly have moved
from the first phase to the second phase, especially since Dobbs. The second Trump Administration clearly understands this,
and rightly does not expect much pushback from the Roberts Court as it
aggressively carries out its constitutional revolution.
We
have always viewed the latter stage instead as conservative moral
readings—substantive visions of the Constitution’s basic structures and
commitments—rather than, say, a faithful account of the founding or original
public meaning of the Reconstruction amendments as such. Thus, it seems to us
that Adrian Vermeule’s characterization is very much on the mark: that in the
first phase, originalism served its largely negative purpose, but now that we
are in the second phase, conservatives should move “beyond originalism”
and openly implement a conservative moral reading of the Constitution.
Yet,
it probably is the case that, for reasons of temperament and rhetoric,
conservatives will continue to wear originalist garb or perform acts of what
Balkin calls “historical ventriloquism,” putting their conservative visions in
the mouths of the framing and ratifying generations. Temperamentally and
rhetorically, discourse of a restoration or redemption of a founding—or a
return to fidelity to first principles—is more congenial to them than is
discourse of implementing a conservative substantive vision or constructing a
conservative moral reading.
What is more, by their conservative lights, even after the pervasive and unrelenting disruption of constitutional doctrine wrought by the Trump Court since 2020, constitutional law is still littered through and through with liberal precedents and so they still need to use the demolition crew of originalists to tear it all down. Finally, as Kersch would have been the first to emphasize, conservative constitutional law professors may be more comfortable with the idiom of “neutrality” or “processes” or “matter of interpretation” than with forthrightly advocating for imposing a substantive vision. This applies even more so to conservatives on the Supreme Court.
* * *
In
concluding, we want to repeat what we said at the beginning: narratives matter. As we observed, most
law professors, if they are familiar with the ideas of constitutional
redemption, story, memory, and narrative, probably think of the work of our
blog host, Jack Balkin, his Yale Law School colleague Reva Siegel, Serena
Mayeri, and, before them, Peggy Cooper Davis. Kersch’s Conservatives and the Constitution deserves a place in the standard
string citation to scholars developing and applying these ideas. Now, these
ideas are not inherently conservative, but Kersch argues and demonstrates in
rich detail that conservatives have been far more adept than liberals and
progressives in communicating and mobilizing through using these ideas.
Furthermore,
through the ideas of redemption, story, memory, and narrative, Kersch weaves
together the materials forming a conservative “incompletely theorized agreement”
or “overlapping consensus.” Many have pondered what unites the evidently
discordant strains of conservative argumentation today. Most pundits and
scholars have constructed largely negative accounts, e.g., what united the
Republican Party in 2016 was more hatred of Hillary Clinton, or agreement about
the necessity of repudiating everything Barack Obama had accomplished, than
agreement that Donald Trump would make a good president. Kersch provides a more
positive account: what unites the right around Trump is an overlapping
consensus among quite different conservative views about the urgency of
redeeming the promise of the “city on a hill,” or making America great again.
Relatedly,
countless pundits and scholars have come around to the view that Trump is not
an aberration but instead the culmination of certain strands or forces in the
evolution of the Republican Party. Kersch’s book contributes to this
understanding. Because his book is about conservative ideas, it contributes
less to political science literature on why Trump won the presidency twice than
to understanding how numerous strands of conservative thought since 1954 have
borne fruit in Project 2025. Kersch puts the matter in terms of a recurring
refrain: these ideas have been “hiding in plain sight.”
Finally, Kersch’s book enables us to see that many conservative ideas that initially seemed shocking—like Michael Anton’s argument that the 2016 election’s choice between Trump and Clinton resembled the choice of the passengers on Flight 93—make perfect sense of the state of the conservative mind in the U.S. today (374-78). As does the evidently counter-intuitive appeal of Trump the immoralist to conservative Christian moralists. It appears that the conservative never-Trumpers whom we have long admired did not get the memo. Barry Goldwater put it best when he said in the most famous line of his 1964 nomination acceptance speech (penned by Straussian Harry Jaffa): “Extremism in the defense of liberty is no vice” (53 n.76). To many, that sounded like unhinged paranoia during Goldwater’s presidential campaign in 1964. However, today, to many conservatives, it evidently sounds like the common sense truth of the matter. Hence, to many of them, tyranny and authoritarianism may seem necessary to them to restore constitutional virtue and to restore the blessings of honorable liberty. Reading Kersch’s book enables us to appreciate this.
James Fleming, jfleming@bu.edu, is the Hon. Paul J. Liacos Professor of Law at Boston University School of Law. Linda McClain, lmcclain@bu.edu, is the Robert Kent Professor of Law at BU Law.