Vol. 31 No. 6 (June 2021) pp. 106-110CONSERVATIVES AND THE CONSTITUTION: IMAGINING CONSTITUTIONAL RESTORATION IN THE HEYDAY OF AMERICAN LIBERALISM, by Ken I. Kersch. New York: Cambridge University Press 2019. 407 pp. Cloth $84.99. ISBN 978-0-521-19130-8 $84.99. Paper $34.99. ISBN 978-0-521-193109.
Reviewed by Richard L. Pacelle, Jr. Department of Political Science, University of Tennessee. Email: rpacelle@utk.edu.
These have been interesting times (to say the least) for conservative thought (and the Republican Party). The conservative movement and the Republican Party have, depending on your view, either been the victims of a hostile takeover or are just continuing a natural progression set in motion over half a century ago. The roots of the current conservative establishment and its success controlling the courts and articulating a compelling, largely shared, constitutional vision is the subject of Ken Kersch’s CONSERVATIVES AND THE CONSTITUTION.
The book is a multi-layered tour de force explanation of the rise and unification of the conservative legal movement. It is a wide-ranging intellectual history of the birth and evolution of ideas, written in the best tradition of American Political Development studies. The book is dense in every positive sense and Kersch promises that this is just the first of a trilogy.
The book is broadly descriptive and weaves together similar strands of thought. It is meticulously comprehensive, borrowing from an incredible wealth of sources. The voices came from all corners of the political, business, religious, and legal universes. Kersch identifies a wealth of sources of thought and the platforms for their dissemination from the READER’S DIGEST to the NATIONAL REVIEW, Paul Harvey to Rush Limbaugh, and the FIRING LINE to Fox News.
The core argument of the book is that “the defense and restoration of the Constitution played a critical, and served as a politically effective rallying cry, for post war twentieth-century movement conservatives, many of whom angrily alleged that the Constitution had been abandoned by liberals during the New Deal and the Warren Court” (p. x). Kersch details the process by which ideas emerged and got grafted on to similar theories. Some were refined over time while others would be modified, repackaged, and occasionally jettisoned. He refutes the simple (and lazy) description of the conservative legal movement as a coalescing behind the idea of Originalism. Kersch contends that these debates were not simply thinly veiled cover for reaching conclusions that fulfilled conservative policy goals.
Kersch argues that populism and progressivism led to a liberal American century, a period bounded by conservative eras, one ending with the controversial LOCHNER V. NEW YORK (1905) decision and the other taking root during the Reagan presidency, but heavily influenced by the “glorious legacy of Barry Goldwater.” The liberal century began in the Progressive Era, was fueled by the New Deal, and was abetted and expanded by the constitutional revolution that was the Warren Court. The proof of its reach could be measured in the reaction of its opposition. Indeed, the Republicans elected to the White House during this period, Dwight Eisenhower [*107] and Richard Nixon, did not challenge the New Deal and in fact, in some ways, they extended it. Parenthetically, he argues the reverse process would come to define recent American politics. In the 1980s, the parties began to realign and become more ideologically coherent. The electorate also became increasingly polarized. The only two Democrats to win the White House over a thirty-year period were Southern governors. And once in power, Presidents Carter, Clinton, and Obama governed from the center-right.
Advocates of conservative thought charged that modern liberals had substituted pure will for a foundational commitment to the rule of law. Liberalism “spoke the language of the ‘policy state’” (p. ix ). The goal of liberal politics was the “amelioration of social problems through government-initiated public policy” (p. ix ) Conservatives, by contrast, “spoke not of pragmatic, meliorist policy, but of a foundational constitutional rule of law” (p. ix). Conservatives preferred a narrow concept of the powers of the national government, expansive powers for states, and less concern for constitutionally protected rights while advancing a robust protection for property rights. This led to a full-throated critique of the modern liberal state complete with a constitutional justification. Conservatives were able to gain the upper hand by controlling framing and symbolic politics.
Kersch maintains that the critical feature of these conservative movements is that they would coalesce. He argues persuasively that these diverse and divergent theories, narratives, and memories were reimagined into a common cause. Kersch cleverly and flippantly refers to this as “‘living’ conservative constitutionalism” to apply “the epithet rule-of-law conservatives dismiss contemptuously” (pp. x-xi).
The period between the end of World War II and the Reagan Administration represented the years in the wilderness for the conservative movement. However, Kersch argues that this period was one of the most substantial for conservative constitutional theory. While the academy was a bastion of liberal thought and philosophy, the conservative movement was not without its own seminal ideas that influenced the direction of its evolution. Because law schools and philosophy departments were “captured” by liberals, the resurgence of constitutional theory is traced to journalist-intellectuals, independent scholars, church dogma, and a few professors in political science departments. While the focus has been on positivism and originalism personified by Robert Bork and Antonin Scalia, there were other live vines.
Conservative legal theorists decried the rootless and wanton activism of the Warren Court. The Court weakened federalism, issued broad sweeping decisions, and invented constitutional powers. The conservative constitutional proponents urged the Court to be more circumspect, exhibit restraint, and find clear provisions for their pronouncements. Many on the left, and some on the right, would argue that once the originalists and conservatives became a majority on the Court, they issued their own activist decisions and committed the very offenses they condemned when they were the minority party. Some of these scholars and judges, particularly originalists, were not opposed to the type of judicial engagement for which they criticized the Warren and Burger Courts. Some feared the increasingly right leaning Court might venture back to the LOCHNER style activism that helped trigger the liberal century. [*108]
Kersch traces the roots of recent conservative constitutional theory to interpretations of Abraham Lincoln’s connections to the Declaration of Independence, political theorists like Leo Strauss, Harry Jaffa, and Eric Voegelin, and constructions of Natural Law (from classical philosophy and the Roman Catholic Church). And it is no surprise what provoked and united such theorists: the Warren Court.
Kersch examines the narratives, framing, “memories,” and “stories” that emerged from the various streams and helped create the ascendant constitutional theory of the times. He argues that political discourse framed in certain language and attached to powerful valence symbols helps people make sense of the world and, in effect, shapes our political perspectives. It is tempting to view these as post hoc, exaggerated, or trivial, but the argument is compelling and connects the meta-theoretical justifications with symbols and messages that unite the base. Conservatives (and by extension Republicans) have gained control of certain symbols and used them effectively. The flag, smaller government, “Patriotism,” “Judicial Activism,” “Low Taxes,” “Fiscal Responsibility,” and “Law and Order” are among the potent conservative symbols and frames. Democrats seem powerless to answer them or build their own competing symbols.
The author carefully documents the growing narrative and law-related connections between these very disparate groups. Different religious sects with very different views of the secular world found or formed bonds. Economic interests married religious groups in pursuit of common goals and patriotism and antipathy toward the Soviet Union galvanized others. The cultural issues that motivated some and could have divided others were buried in the broader interest. And perhaps this is the glue that holds the apparently tenuous conservative coalition together.
There are numerous studies analyzing the rise of the right and its increasing control of the judiciary. The depth of this study is a quantum leap past previous analyses and orthogonal to those studies. Kersch does not revisit the internal battles within the Warren Court or relitigate disputes between Alexander Bickel, Phillip Kurland, John Hart Ely, and Bruce Ackerman (among others). Rather his goal is to map the wide range of constitutional thought that helped shape modern conservatism. Conservative legal theory and constitutional thought were generated across a diverse set of actors and institutions. They stemmed from business, religion, and a virulent anti-Communist element. While their genesis and paths were different, they shared the goal of restoring the United States to its founding constitutional principles. They hatched their ideas and refined them at a time when the Progressive Era, the New Deal, and the Warren Court were ascendant and dominant.
The author devotes a chapter to “Stories about Communism.” In the post-World War II period, both parties were anti-Communist. We were mired in a Cold War and neither party gave aid or comfort to the enemy. Kersch argues that Vietnam changed all that. “Communism” became “Godless Communism” and was useful to describe and attack a range of liberal policies and goals. It was a Cold War enemy, an alternative to capitalism, the logical conclusion of a regulatory state, and an underlying component of the decisions of the Warren Court.
During the Progressive Era, big business was framed as a ubiquitous monolithic predator protected by the government. Muckraking journalists exposed the abuses of big business, the substandard working conditions, and miserly wages. At the end of [*109] the Progressive Era, the Republicans were able to capture the White House for all but a few terms and gave free rein to business. With the Great Depression raging, Franklin Roosevelt and Congress introduced the New Deal, a catalogue of regulations that elevated the power of the central government. The New Deal was so popular and accepted that the first Republican presidents to recapture the White House did nothing to dismantle it. While the regulatory state trimmed the excesses of capitalism, it also rankled business and smacked of socialism, (or so they charged).
The framing and stories of big business changed in significant ways. Kersch identifies frames and stories of heroic business enterprises. Business leaders were the new artists, paving the way for better lives. Business created jobs and their profits would be reinvested, taxes would be collected, and some felt the success would “trickle down” to the masses. But that could only be done if taxes were low and governmental regulations were not onerous. Philosophical support for libertarian views and a modern version of laissez faire doctrine came from darlings of the right like Ayn Rand. Kersch argues that Rand mounted a moral defense of capitalism (p. 126) and vociferously rejected the arguments that the New Deal saved capitalism. She advocated a “radical individualism” that continues today.
While most of the legal community was secular, Kersch traces the rise of conservative legal theory among religions traditionally more at odds than allied like Evangelicals, Fundamentalists, and Roman Catholic thinkers and dogma. They had their own stories and frames for their natural law ideology. Kersch argues that Francis Schaeffer, an Evangelical minister and philosopher, was "the seminal theorist and intellectual strategist responsible for the establishment of the Religious Right, and of its integration as a core constituency of the modern Republican Party” (p. 236).
These religious groups, business leaders, philosophers, politicians, and judges were a seemingly strange alliance. But they shared some core values such as the belief in limited government and a Court that was an umpire and not a fully engaged policy maker. In his next tome, Kersch promises to examine how these legal philosophies and theories have manifested in judicial doctrine and precedent.
Kersch concludes the book by examining the specter of Donald Trump. The electorate has become more polarized and the competing frames are more pointed and personal. The Tea Party has forced some Republicans to pick sides and pulled the party to the right. The establishment wing of the party largely remains in a nether land tied to a president who was not their first (or fifth) choice and coping with the threat of being primaried from the right. They adhere to a constitutional philosophy that may or may not be embraced by Mr. Trump, who has little patience with and less knowledge of constitutional theory. Trump was willing to accept the names of the nominees for the High Court that the dominant wing of the movement, voiced through the Federalist Society, wanted. So, as the party appears to be in a death spiral, what keeps the frayed chords together remains a shared legal philosophy, success in filling judicial vacancies, and hopes of “forty more years.”
After reading Kersch, the current times, the conservative movement, and the Republican Party’s current travails make more sense. Although it is unfair to hold Kersch to this standard, one could ask why his version of this great tent appears so different from the bloodletting and battle for the soul of the Republican Party and the conservative movement. Kersch’s draft was finished early in the Trump [*110] Administration and certainly hit the shelves well before the assault on the Capitol and the question of a peaceful transition of power. Is the answer in the shrug and the adage “at least we got Gorsuch” (or Kavanaugh or Barrett)? Are conservatives held together by the ability to pack the courts and the occasional tax cut? The response could be that these shared elements have held the structure together despite the obvious fissures.
CASES:
LOCHNER V. NEW YORK, 198 U.S. 45 (1905).
© Copyright 2021 by author, Richard L. Pacelle, Jr.
