For the Balkinization symposium in honor of Ken Kersch
Rogers M. Smith
Kenneth Ira Kersch, who went by Ken, passed away on November 17, 2024, at just 60 years of age. He was Professor of Political Science at Boston College and the founding director of its Clough Center for the Study of Constitutional Democracy. Winner of multiple awards for his stellar writings on American constitutional development, Ken was a rarity in modern academia, a conservative-leaning scholar whose erudition, open-minded thoughtfulness, and warm, smiling presence won him genuine friends and admirers even among ardent liberals and progressives, as this well-deserved symposium makes abundantly clear.
I
counted myself among those liberal friends, though I was not close to Ken. I
first met him after Keith Whittington asked me to read and comment on a revised
version of Ken’s dissertation, which won the American Political Science
Association’s Edward Corwin prize for best dissertation in public law. I agreed
broadly with its critique of many liberal scholars’ self-congratulatory
accounts of twentieth century American constitutional developments as having
submerged nasty corporate economic rights for liberating rights of personal
conscience and self-expression—but I found it severely overstated in places. So
much so that I made some sharp criticisms; and I was a bit wary when Keith
subsequently introduced me to Ken. But he exuded good humor and gratitude that
I felt to be genuine, all the more so when the book came out, entitled Constructing Civil
Liberties: Discontinuities in the Development of American Constitutional Law. I saw that he had responded constructively to my comments.
The book deservedly received the J. David Greenstone best book prize of APSA’s
Politics and History section. It was and is a much-needed antidote to
contemporary progressives’ tendencies to read the Constitution, which contains
no clear subordination of people’s economic rights to their other rights, as
saying what we wish it said. It is also a probing analysis of how modern
constitutional ideas and institutions came to be, honestly assessing the losers
and winners in those processes in ways that illuminate many of the populist
resentments so prevalent today.
Ken
and I met and talked at various conferences in subsequent years, always
enjoyably. But what I remember best is being riveted by a talk he gave on the
Presbyterian theologian Francis Schaeffer and other contemporary religious
conservatives, drawn from his research for what became his truly exceptional second
book, Conservatives and
the Constitution: Imagining Constitutional Restoration in the Heyday of
American Liberalism. Though I was raised a
Presbyterian, I had not heard of Schaeffer and I did not realize his role in
building the modern Religious Right through films and writings. Ken showed how
Schaeffer depicted liberal Supreme Court decisions as key moments in an
apocalyptic providentialist narrative, in ways that made defeating liberal
constitutionalism a divine imperative. That account later helped me understand
not only the depth of conservative evangelical support for Donald Trump but how
so many could see him as a flawed but sacred tribune of God.
The
chapter on “Evangelical and Fundamentalist Christian Stories” is only one part
of the impressively in-depth survey of all the major strands of contemporary
conservative constitutional theory that Conservatives
and the Constitution provides. It received the Herman Pritchett “best book”
prize of APSA’s Law and Courts section, notwithstanding the fact that Ken was known
to make severe if perceptive criticisms of the behavioralist scholarship that
predominates in that section. Throughout the book as in some preceding
writings, Ken chose to join me in stressing how political narratives, “stories
of peoplehood,” undergird not only people’s specific policy positions and
broader ideological and jurisprudential commitments but also their senses of
their own core identities. But he captured the variety of contemporary
conservative stories far more fully and with greater clarity than my writings
have done. I drew heavily on his example and his specific arguments in drafting
the chapters on the stories motivating today’s conservative and progressive
racial policy alliances in my recent book with Desmond King, America's New
Racial Battle Lines: Protect versus Repair.
Out
of the many contributions of Conservatives
and the Constitution, and of Ken’s scholarship more generally, let me
single out one other. From early on, Ken called attention to how deeply many if
not indeed most modern conservatives felt that the modern
administrative-regulatory state, begun in the Progressive Era and greatly
expanded during the New Deal and Great Society years, was fundamentally
unconstitutional as well as tyrannical, and should be eradicated. Thus the
book’s subtitle: Imagining Constitutional
Restoration in the Heyday of American Liberalism. Though he documented many
excesses, inefficiencies, and much outright foolishness in the modern American
state, Ken was skeptical about whether it could or should really be stripped
away as conservatives envisioned—but he grasped far more accurately than most
of us that the will do so genuinely existed among the most passionate modern
conservative activists.
We
have since seen conservatives on the Court seeking to erode the power of
independent administrative and regulatory agencies through the “major questions”
doctrine, the abandonment of Chevron
judicial deference to agency decision-making, and the embrace of unitary
executive theory. We have also seen in the undeniably historic first 100 days
of Donald Trump’s second term a massive effort to use a flood of executive
orders and DOGE-led firings, funding cuts, and agency closings to terminate as
much of the modern administrative state as possible. The fate of this effort,
which threatens to cripple many governmental programs and services long seen as
vital and which has involved innumerable apparent violations of constitutional
due process and the Administrative Procedure Act, is uncertain. Many in the
public and on federal benches are pushing back. But of all the scholars of
American constitutional development I know, Ken Kersch was most focused on how
and why this kind of assault on modern governing institutions was a real
possibility. Now that it is at hand, his insights are badly needed and sorely
missed.
Ken’s
most recent book, American Political
Thought: An Invitation, arose
both out of his passion for the subject matter and his passion for teaching. It
is a survey of major voices in American political thought throughout the
nation’s history and of scholarly frameworks for analyzing them. It is designed
to be an accessible introduction to those topics, an aim it admirably achieves.
It is at the same time a remarkably mature, sophisticated, and balanced work.
Its central thesis—that American political thought can best be understood as a “tradition
of contention” over concepts of freedom, equality, and democracy, encompassing
a wide range of views on those concepts—is in my view exactly right, as is his
conclusion that current conditions and problems, within the United States and
on a global scale, are challenging the adequacy of much of the political
thinking that Americans have inherited and continue to employ. I retired from
teaching in 2022, and one project I had long thought I might pursue in
retirement was a similar survey of American political thought. But though of
course I have some interpretive differences with Ken’s book, on reading it, I
decided I did not need to make that project a priority—and I wished that I’d
had Ken’s book to assign while I was still teaching.
I
wish even more that I had taken greater advantage of Ken’s great
knowledgeability, insightfulness, and reliable willingness to discuss the many
matters in which we had shared interests. There are two themes in his work with
which I had some initial disagreements but over time have come to support
fully.
Like
me, Ken belonged to the “historical institutionalist” camp of public law
scholars. He argued in a superb article, “The Distinctiveness of the Supreme Court: A Historical
Institutionalist Perspective,” that
because the Court’s institutional role was to settle disputes between two
parties, it had special needs to make decisions in ways the parties would
accept as legitimate that differed from the institutional imperatives shaping
Congress and the President. My first reaction was, as governing institutions,
don’t they all need to legitimate their decisions to broader publics? But on
reflection I came to agree that although they do, many of the defining features
of judicial reasoning and rhetoric arise from the institutional distinctiveness
Ken identified.
In “Beyond Originalism: Conservative Declarationism and
Constitutional Redemption,” Ken
contended that conservatives could maintain many of the strengths while
overcoming many of the limitations of originalist jurisprudence by reading the
Constitution as an instrument of the Declaration of Independence’s project, the
crafting of political systems that would secure basic rights for all over time,
while governing with the consent of the governed. I worried that, even though
Ken recognized that this Declaration project could be interpreted in
progressive terms, his argument would hand the Declaration over to
conservatives too substantially. I have since come to regard the view that
Americans share a Declaration of Independence project as not just the best
available basis, but as the intrinsically right basis, for finding badly needed
common ground among conservatives and liberals today, and for rebuilding a
sense of shared American identity and purpose. It is the most promising route
for reviving, in Lincoln’s words that Ken admired and emulated, the better
angels of our nature.
I never discussed any of this with Ken. Why not? The truth is, I imagined he would always be there, and that I would check in with him, as I had done in the past, when particular projects prompted me to do so. Now that door has closed, which is a severe personal loss, as well as a tragic loss of one of the wisest, most distinctive, and most valuable contributors to contemporary scholarship on American constitutionalism, American politics, and American political thought. Even more, Ken Kersch was an extraordinarily kind and good human being. We need those now more than ever.
Rogers
Smith is the Christopher H. Browne Distinguished Emeritus Professor of
Political Science at the University of Pennsylvania. He can be reached at
rogerss@sas.upenn.edu.