For the Balkinization symposium in honor of Ken Kersch
George Thomas
Ken Kersch was a singular voice in political science. As political science has become less historically grounded and less attentive to ideas, Kersch wrote thick historical books that deepened our understanding of American constitutionalism by illustrating how our present world was constructed over time. In Constructing Civil Liberties he dismantled the progressive narrative of Whiggish constitutional development that framed our understanding of civil liberties as a steady forward march, revealing a history of conflict and discontinuity. In Conservatives and the Constitution, he turned his talents to illuminating the conservative effort to reframe how we think about the Constitution in the middle years of the twentieth century when progressive liberalism was triumphant. Kersch’s rich and detailed histories offer a capacious take on American constitutionalism and bristle with imagination—the New Deal as the end of History?—while dismantling conventional pieties. Reading Ken was always educative, but it was also a pleasure, as his voice was unmistakable, as was his occasionally acerbic wit (deployed against sanctimonious progressives and illiberal conservatives alike).
I
am sure others will speak more fully to Kersch’s understanding of American
constitutional development as a historically rooted—and deeply
conflicted—process of constructing constitutional authority. Kersch detailed
how political narratives framed and justified our understandings not only of
the Constitution, but of America. I want to focus on an overlooked facet of
Kersch’s understanding of constitutional development—that is, the concept of “constitutional
erasure.” In selecting and picking what aspects of American history are an
essential part of how we see and explain ourselves, political and
constitutional narratives also leave out, or cast aside, part of the story.
Kersch’s point about constitutional erasure is not simply that we determine
that some history is “usable” and other parts of our history are discredited
and deemed illegitimate. Rather, Kersch argued that constitutional erasures
obscure the past, writing out actual constitutional conflicts and events in
constructing new narratives and understandings. A constitutional erasure
entails a narrative that “erases” the constitutional conflict at issue.
Constitutional erasures are an important feature of political development:
Successful efforts to construct political authority require delegitimizing past
understandings, which can lead political actors to rewrite history to accord
with their ideas by erasing the reality of past constitutional disputes.
I
found Kersch’s idea especially illuminating in thinking about the famed
Dartmouth College case. Conventionally speaking, Dartmouth College’s seminal importance
lies in the version of political economy it helped secure and foster: setting
the foundation for the private corporation, the recognition of vested property
rights, and an expansive understanding of the contracts clause—all of which set
the stage for America’s commercial development in the nineteenth century. Yet
it is too often forgotten that the very nature of Dartmouth College—whether, in
fact, it was a private or public institution—was the central question in a
larger constitutional struggle. An essential feature of this constitutional
struggle regarded the relationship between church and state in the creation of
the American Republic.
To
categorize Dartmouth as a “private” institution, as the Court did, erases an
important moment of American constitutional development. The distinction
between “public” and “private” educational institutions does not accurately
capture the American colleges in existence in the late eighteenth and early
nineteenth centuries. On the contrary, the majority of such educational
institutions are best characterized as “church–state” schools forged in an era
when the church and state were not separated. Created under a prior political
order, church–state colleges such as Dartmouth provided sectarian education,
favored their sect over others, and often had an educational monopoly in their
respective states. These features put such colleges at odds with emerging ideas
about church and state in the American revolution and creation of the Constitution.
Dartmouth College was part of a wider constitutional debate that included
struggles over who controlled educational institutions—such as Harvard, Yale,
and William & Mary—forged in a previous constitutional order. Situating Dartmouth College as a constitutional
erasure in Kersch’s terms opens a window onto this larger constitutional
struggle and captures an important site of constitutional development. This
constitutional conflict laid the foundation for private educational
institutions as we now apprehend them. Yet we should understand that the actual
constitutional struggle reveals that educational institutions such as Dartmouth
were not so easily categorized as “private,” as the “public” dimensions of
these colleges were pervasive. How to think of the church–state college in a
new constitutional order, with quite different commitments, poses a story about
clashing ideas and what changes were necessary to establish and maintain a new
constitutional system.
For
leading political actors such as Thomas Jefferson and James Madison, reworking
the relationship between civil government and established churches and the
ideas behind this relationship, including the link between the civil state and
sectarian colleges, was an essential constitutional development. These
political actors found existing educational institutions problematic precisely
because of their ideas about political and theological authority. Figure like
Thomas Jefferson were joined by religious leaders like Isaac Backus as they
sought to reshape educational institutions to align with their understandings
of legitimate political authority. Institutions like Dartmouth were at once
public institutions that were also deeply sectarian institutions as they were
forged in a period when the civic and sectarian were intermingled. In the
language of APD (which Kersch could be a bit too fond of), these institutions
were caught between “multiple orders” with regard to “church” and “state.”
For
figures such as Jefferson and Backus, the new constitutionalism rendered the
intimate connection between the state and the sectarian college deeply
problematic. Constitutional development, accordingly, required changes in the
institutional relationship between sectarian colleges and the state. Political
figures from this period such as William Plumer, the governor of New Hampshire,
and Daniel Webster, a Senator from Massachusetts and graduate of Dartmouth,
were engaged in a constitutional struggle to reconstruct institutions that
clashed—or “intercurred” in the idiom of APD—with the new political order. The
Jeffersonian Plumer insisted that Dartmouth was a public university and
therefore must be refashioned as a non-sectarian institution. Webster insisted
it was a private sectarian institution beyond the reach of the state. Against
this conflicted historical backdrop, the Court’s opinion in Dartmouth College denied any real
conflict. This is especially true of Justice Jospeh Story’s concurring opinion,
which rewrote history so that the public and civic aspects of these
institutions were dissolved. Story ignored the constitutional disharmony
between a secular state and a sectarian state college to cast the college as a “private”
corporation. Story’s opinion in Dartmouth
College and in a lesser-known case about Bowdoin College in 1833 embody
Kersch’s concept of a constitutional erasure. Story engaged in a similar
rewriting of history in his Commentaries
on the Constitution of the United States, published the same year as his
Bowdoin College opinion, that read Lockean social contract theory out of the
constitutional narrative and situated Christianity as an essential feature of
American constitutionalism.
Constitutional
erasures are an important feature of political development, as efforts to
construct political authority require delegitimizing past understandings,
leading political actors to rewrite history to justify their ideas. In Kersch’s
terms, constitutions are more than institutional arrangements that establish
governance: Constitutions seek to shape political culture and civil society.
They are efforts to bring a polity to life by shaping the beliefs and
understandings of the political actors who inhabit the constitutional world.
Bringing a constitution to life necessarily requires constructing certain
understandings of political authority—the division between church and state,
for example—that frame how actors within the constitutional universe apprehend
political life.
When
it comes to the complex relations between church and state, we may be
witnessing a contemporary effort to reorder our understandings. In several
recent cases, the Court has begun to insist not only that the Establishment
Clause allows states to directly fund religious institutions, but also that the
Free Exercise Clause commands it. Such arguments push beyond any recent
understanding of either the Establishment Clause or the Free Exercise Clause.
Indeed, in the very recent past, under the historical jurisprudence of Chief
Justice Rehnquist, the Court held that if the state chose to fund sectarian
programs it could do so in a non-preferential manner. This line of
jurisprudential thought, also advocated by originalists like Justice Antonin
Scalia, never held that the states must
fund religious institutions. Not only was a funding case like Zelman v. Simmons-Harris treated as an
Establishment Clause case, but questions of free exercise were entirely
unproblematic. Yet beginning in Espinoza
v. Montana Department of Revenue in 2020, the Court skipped over questions of
establishment and found a free exercise violation. In this case, Montana
provided tax credits for attending a private school but prohibited such credits
for private religious institutions because Montana’s state constitution
prohibited direct or indirect payments that aid religious institutions,
including private religious schools.
The
Court, however, argued that this amounted to religious discrimination in
violation of free exercise rights. Extraordinarily, a Court that purports to
ground its decision in history and tradition, waved away a provision of
Montana’s state constitution that had been in existence since 1889 when it
formally entered the Union. Similar constitutional provisions are found in over
three-quarters of state constitutions, dating from the late nineteenth and
early twentieth centuries. And yet the Court swept these 100 plus-year-old
provisions away “in favor of a new theory of free exercise,” as Justice Sonia
Sotomayor noted. In contrast, Justice Clarence Thomas casually referred to the “separationist”
views embraced by these state constitutions as driven by hostility toward
Catholics. This anti-Catholic narrative, which has led to the cavalier
dismissal of these state constitutional provisions, as Kersch might wryly note,
is only part of a complex and conflicted story.
Often
dubbed little Blaine Amendments, after Congressman James G. Blaine who proposed
a federal constitutional amendment that would have prohibited federal funding
of sectarian institutions, these state constitutional provisions traced their
way back to separationist arguments articulated by Jefferson and Madison. Some
of these constitutional provisions reflected longstanding practice
in the states that predated anti-Catholic attitudes. But, certainly,
anti-Catholic animus, especially the fear that Catholics could not be good
Americans, was a feature of this conflict. So, too, was an effort to engrain a
vague Protestantism into the public schools. Yet while the anti-Catholic
dimensions of this conflict have become part of the conventional narrative, the
anti-constitutional—and, hence, possibly anti-American—dimensions of Catholic
teachings from the period have been submerged. In the late nineteenth century,
formal Catholic teaching was deeply hostile to the idea of separating church
and state, as well as to the idea of religious liberty as an individual right.
Numerous papal encyclicals from the era rejected civil authority as grounded in popular sovereignty,
labeled the idea that the church ought to be separated from the state as a falsehood, and held
that “error,” as in other religions, had no rights. These papal encyclicals
rejected foundational elements of American constitutionalism. Indeed, Pope Leo
XIII went so far as to worry about “Americanism“ in the
Catholic Church.
Such
thinking persisted well into the middle years of the twentieth century. As
Kersch put it in Conservatives and the
Constitution, “Conventional wisdom holds that it was only anti-Catholic
bigots who doubted the compatibility or Roman Catholicism with Americanism. But
in the postwar United States, a significant number of far right-wing Catholics
… entertained the very same doubts” (328). This thinking has returned with a
vengeance in post-liberal Catholic circles. Let me quickly add that various
Protestant sects once too rejected the separation of church and state as well
as liberty of conscience, insisting that religious orthodoxy could be enforced
by state power. These struggles were also at the heart of Dartmouth College.
The point, in Kersch terms, is that church-state jurisprudence is being reconstructed in a manner that repudiates separationist understandings as harmful to free exercise. The actual history around these state constitutional provisions is being erased by the Supreme Court to fit a narrative that downplays separationist understandings of the Establishment Clause in order to pave the way for an understanding of free exercise that corresponds with conservative notions that traditional Christianity is under siege. We are once again witnessing profound conflicts over church and state in the American constitutional order. I wish Ken were here to write about this constitutional development.
George Thomas is the Burnet C. Wohlford Professor of American Political Institutions at Claremont McKenna College. He can be reached at george.thomas@claremontmckenna.edu.