An interview with Ken I. Kersch
We are pleased to publish this interview with Ken I. Kersch, about his recent book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press, 2019). Ken I. Kersch is Professor of Political Science at Boston College, where he teaches courses in American constitutional law and development and American political thought. He is the author of four books, and many articles, chapters, and reviews. He received his B.A. from Williams College, his J.D. from Northwestern, and his Ph.D. from Cornell. His next book, American Political Thought: An Invitation, will be published next year by Polity.
Professor Kersch, thanks for joining us. Can you give us a brief summary of the argument of the book?
In recent years, there has been a lot of excellent work published on both the postwar conservative movement, on legal mobilization by conservatives, and on the development of “originalism” as a method of constitutional interpretation by judges. The work on the movement generally, including on its political thought, has said very little about conservative views on the Constitution, aside from of accounts of the constitutional resistance to civil rights. Work on the Federalist Society and on the origins of originalism tended to focus on the post-1980s/Reagan administration time period. But arguments about the Constitution had been central to the movement itself, long before it came to power in the 1980s. Those arguments extended well before southerners resisting civil rights. In Conservatives and the Constitution, I sought to capture this wider world of postwar conservative constitutional argument.
Conservatives and the Constitution focuses on “the constitution outside the courts,” or the constitution within the political and social movement thought, rather than as it is parsed by judges in judicial opinions. I draw extensively from magazines and books, and only rarely from legal scholars and judicial decisions. Over time, once a political coalition gains power, its understandings make their way into judicial approaches and rulings, as refracted though the requirements and culture of legal institutions. We cannot really understand the Constitution in the courts unless we understand how judicial frameworks are rooted in broader and deeper political understandings arrived at before-hand outside the courts.
After a context-setting preface and some background on financial support structures and outlets, I provide an overview of some of the major big-picture constitutional theory arguments that helped define the postwar American Right. I then present the material through the prism of “stories about” various issues central to the movement, like markets or communism, as they related to arguments about the Constitution, and then stories told by core identity groups that ultimately coalesced into the Christian Right. The “stories about” framing does not mean that I don’t take up serious intellectual arguments, and treat them as such. I do so—extensively. But I wanted to show how those arguments were presented and situated within larger, overarching accounts of the country’s history—by narratives about where we were, where we are now, what went wrong and why, and how we redeem and restore the Constitution—and thus the nation. By focusing on both arguments and narratives, I hope to convey the ways that ideas (arguments) and emotions (stories) work together in to motivate and help integrate social and political movements. Conservatives and the Constitution, which focuses mostly on the 1954 (Brown v. Board of Education) to 1980 (Reagan) period, maps this trajectory.
You note—importantly, I think—the importance of narrative in the conservative self-understanding, writing that conservatives have churned out an endless series of books, articles, and other media that created a politics “saturated with historically-rooted, movement-making, ethically constitutive stories.” What is the constitutional story conservatives were telling as part of this historically-conscious sense of itself?
You ask what constitutional story conservatives were telling in this period. Actually, one of my points is that conservatives with different identities and coming from different perspectives were telling multiple stories that bore a family resemblance. These stories both overlapped and diverged. And it is the dynamic relationship of this family of stories unfolding over time that I hoped to capture in this book. Different elements of the movement—laissez faire individualists, fervent anticommunists of different ilks, evangelical and fundamentalist Christians, and traditionalist, conservative Roman Catholics—brought not simply distinct ideas, arguments, and emphasizes to the table, but different understandings of where we—either the U.S. as a country, or, for that matter, Western civilization—have been, are now, are likely to go, and should strive to achieve. Each of these elements of the postwar movement had relatively settled commitments. But each was also in dialogue with the others, working toward common ground.
This process is not unique to conservatives or conservatism: it is a dynamic that plays out within any broad-ranging and somewhat pluralistic political movement. This is especially true when there is a two-party system that forces groups not simply into purely transactional coalitions (as might be the case in multi-party parliamentary systems like that of Italy or Israel), but into durable political coalitions that might last for twenty or thirty years, sustained by shared interests, yes, but also by a sense of common identity, and shared purpose and meaning.
Most conservatives—though the neoconservatives might have been an exception—adhered to (small “r”) republican understandings about the ways that long-lived governments eventually succumb to corruption, brought about in significant part by the decline in virtue of its citizens, and about the imperative of rallying to promote and instill virtue, and restore the republic to its sustaining first principles. This genus of political thought was prominently identified by Machiavelli in his Discourses on Livy (1531).
Republicanism has long been a prominent strain of Anglo-American political thought. Different elements of the postwar conservative movement held different views about the culprit for this corruption, loss of virtue, and decline. Some emphasized communist propaganda and subversion. Others blamed a loss of (Protestant) Christian faith, as evidenced by a turn away from biblical literalism, which they insisted had provided the foundation for the Founder-bequeathed American political system. Still others blamed the decline on the country’s abandonment of the medieval unities that instantiated in the teachings of the (traditionalist, pre-Vatican II) Roman Catholic Church. For traditionalist and, in some cases, ultramontane Catholics, the problem was less a declension from the Founding than the Enlightenment presuppositions of the Founding itself. As a quintessentially modern policy, these Catholics insisted, the U.S. had been hopelessly corrupted from its inception by liberal individualism and Reformation theology. And there were plenty of other targets as well: secularism, a rampant egalitarianism that had become its own quasi-religion, a turn away from a commitment to Lockean, individualist understandings of natural rights, and so forth. These stories were compatible enough to suggest possible alliances. And part of the glue that might hold them together in coalition was a developing conviction that, while they might not always see things eye-to-eye, they nevertheless were facing a much more dangerous common enemy—liberals and progressives.
And that is what happened. This extended process of forging an alliance based not simply on common interests but also—and perhaps even primarily—on a shared identity required the most significant thinkers within these different movement camps elements to either revise their stories (one way that a group can change without a sense that they have abandoned their principles), or to bracket or downplay some element of their understandings in the interest of forging common ground. As I show, for example, there was a lot of rethinking of free-market capitalism by Christian conservatives. Thinkers like Edward Opitz and Michael Novak played a major role in shifting the understandings and attitudes of conservative Protestants and Catholics away from the view that government had an important role to play in aggressively regulating economic markets. This helped lay the groundwork for an alliance between an incipient Christian Right and free-market libertarians. That common ground, I show, was forged by the formulation of a language and story about their common commitment to “natural rights.”
I say “a language and a story” not to deny the existence of “natural rights.” I say “a language and a story” to emphasize that, at least early on, the movement allowed each of its constituent elements to follow its own understanding of natural rights. So, for instance, traditionalist Catholics were left free to imagine that Locke’s “natural rights” and St. Thomas Aquinas’s understandings of natural law were either the same thing, or close enough. Fundamentalist Christians were left free to talk about how the natural rights philosophy of the Founding was underwritten by a biblical literalism which, they insisted, had been the foundation of the English common law. This worked because the search for common ground was framed as a fight against a common enemy: those who had ostensibly abandoned the Founders’ commitment to “natural rights”—modern liberals and progressives.
I do not argue in Conservatives and the Constitution that this was all about “stories,” and that the arguments did not involve arguments about principle, or truth. The book is mostly about arguments. It is an intellectual history. It describes and weighs ideas. But I wanted to take things one step beyond that by also describing how these arguments and ideas were integrated into larger stories that were being told about the country’s and Western civilization’s historical trajectory, about where we began, what had happened since, and where we as a society and a civilization were moving. Besides simply describing the way that arguments and ideas actually live outside the seminar room in actual politics of real countries with vibrant political cultures, presenting the arguments and ideas as tied to overarching narratives and stories better captures the ways that politics, arguments, ideas, and emotions work in tandem. It is the stories that provide the motivation and passion that inspires political involvement and commitment for most people. I wanted to better capture the fulness and complexity of actual political life.
Some people are apparently disturbed by the fact that the narratives I describe in this book are not easily classifiable as either “true” or “false,” and that I withhold judgment on that in most cases. This implication is that I am descending into “postmodernism” or even nihilism, of the same sort that is, apparently, now destroying Western civilization. But I believe in true and false. I believe in historical facts. I don’t believe everything is a story. But people arrange facts into narratives and stories. This itself is an historical fact. And it is a historical fact about the United States, as it is about every other country. Since it is a universal human phenomenon, it is not surprising that some scholars of “American Political Development” have focused on its dynamics and political implications. But since it is a pervasive phenomenon, the study of how stories and narratives inform and structure that life have also been explored by historians (intellectual, and otherwise), ethnographers, sociologists, and diverse scholars of nationalism and social movements across the humanities and human sciences.
The fact is that different historical actors tell different stories about what has happened, why it happened, and its future implications. Here is an example. In the Slaughterhouse Cases (1873), the U.S. Supreme Court for the very first time was asked to interpret the provisions of new Fourteenth Amendment (1868) providing that “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Slaughterhouse involved the question of whether Louisiana’s conferral of a butchers’ monopoly violated this part of the Fourteenth Amendment by depriving the now out-of-work butchers of “the right to pursue a lawful and necessary calling.” To Justice Samuel Miller, speaking for the Court’s slim majority, that answer was obviously “no.” To arrive at that conclusion, Miller did not simply read the language of the constitutional text. He also asked what had led to the addition of those provisions to the Constitution. “The most cursory glance at [the Thirteenth and Fourteenth Amendments],” Miller explained, “discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning …” That purpose was to address the “institution of African slavery, as it existed in about half the States of the Union.” Miller went on to say,
“We repeat, then, in light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all … [that] on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him …”
In concluding, Miller opined that “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” This case involving a butchers’ monopoly, Miller’s reasoning went, did not involve anything like that. Joined by a majority of the Court’s justices, he dismissed the case. In a vigorous dissent, however, Justice Stephen Field insisted that if the right to pursue to pursue a lawful and necessary calling were not held to fall within the prohibitions set by the Fourteenth Amendment, “it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” In Field’s view, the Civil War had done nothing less than newly place the protection of fundamental rights—all fundamental rights, no matter who was appealing to them—“under the guardianship of the National authority.”
Field’s and Miller’s clashing views, which sharply divided the Court a mere eight years after General Lee’s surrender at Appomattox Courthouse, issues from divergent understandings—narratives, stories—about what the Civil War was and meant, and what the addition of the Reconstruction Amendments had been (originally!) designed to achieve. This, it is worth underlining, was a Court stuffed to the gills with Lincoln and Grant appointees, including both Field (Lincoln) and Miller (Lincoln). Miller’s reading of the meaning of the War was more limited, and had fewer revolutionary implications for the powers of the national government, including a Supreme Court that would aggressively wield its powers of judicial review. Field’s reading of the meaning of the War was that it had instituted a broad-ranging and expansive revolution in American rights protection.
Which of these stories is “true”? The choice between the Miller story and the Field story—in conjunction with the Miller argument and the Field argument—had momentous implications: it would underwrite future interpretations of the constitutional text concerning fundamental questions of the powers of government in the United States. In point of fact, over time, Justice Field’s interpretation won out, laying the foundations for an immensely powerful modern Supreme Court.
These two justices could not agree on what had happened in the Civil War less than a decade after it ended. And this was an historical episode they both had personally lived through and witnessed, during a time when that war was the central issue of American life. Justices Miller and Field could not agree on the “original intent,” “original public meaning,” or purpose of the Fourteenth Amendment’s central provision—which happens to be one of the most important provisions of the entire Constitution. This is not because that provision was obscure: every justice on that Court had been saturated in these debates and new departures. They were forced by circumstances to situate arguments about what the text means within a narrative about the trajectory and meaning of historical events, which would then inform their judgment concerning its future implications.
My point is simply that this happens all the time in arriving at constitutional understandings. Postwar conservative understandings of the Constitution are about arguments, and theories of government, yes. But those arguments and understandings are embedded within broader narratives about history: about where we were, where we are, and where we are going. This is true of liberals and progressives as well. Both outlooks have broader constitutional visions. They advance constitutional arguments that are situated within those visions, which are structured around stories about the meaning of the Founding, of the Civil War, of the New Deal, of Brown v. Board of Education (1964), Engel v. Vitale (1962), Roe v. Wade (1973), of progressive-era eugenics, mid-century appeals to “states’ rights,” the creation of a professional civil service and the modern administrative state, and so forth.
The New York Times recently published an examination of American history textbooks supplied under the same name and title by the same authors to two states with very different political profiles, Texas and California. Texas’s version of textbooks had been edited to conform more closely to the conservative stories told by the people in that more conservative state. California’s version of the textbooks had been edited to conform more closely to the progressive or liberal stories told by the people in the more progressive state. Both books, incidentally, were historically accurate. Both were grounded in demonstrable historical facts. What was different was the story or narrative that was used to frame and present those facts. My book simply argues that participants in the postwar conservative movement did the same thing when it came to arraying their arguments about the meaning of the U.S. Constitution. I argue, moreover, that, to the extent that conservatives won elections and assumed the reins of power, the stories the stories they told about the Constitution played a significant part in constituting the contemporary American nation.
A key theme of your book seems to be how conservative constitutional thought developed from outside the academy, and for that reason has been largely ignored. Can you expand on that for us?
Yes. Actually, I would say “from outside the legal academy.” Especially in the aftermath of the New Deal, liberals dominated legal academia, especially the fields of public law, like constitutional and administrative law. This is not to say that there were no conservative law professors. There must have been. But they were outliers, and did work in other fields that were, for all practical purposes, a-political.
There were a lot of conservative legal scholars before this, of course. Conservatives Christopher Tiedemann and Thomas Cooley wrote some of the leading late-nineteenth century public law treatises. I don’t think anyone sat down and said “let’s purge conservatives from legal academia.” The way these things work is that there is are new veins and trends in scholarship that are considered cutting edge. In the early twentieth century, the cutting edge involved the application of the new philosophies like pragmatism, and the reformist strains of the new social sciences to law. Scholars who were doing that sort of work—proponents of the “sociological jurisprudence,” or “Legal Realism”—were initially viewed as outsider insurgents. But in time they redefined the core of public (and also private) law scholarship. As the New Deal took shape, a “Legal Process” school developed as well that was more institutional in focus, and had a powerful influence on constitutional and administrative law. In this context, conservative job applicants would have been seen as hopelessly out of date, working within frameworks from thirty years ago. That could have happened in any field. But legal academia is also distinctive in the way that it is tied to what public institutions and officials (including judges and justices) are actually doing. After the Supreme Court began affirming New Deal constitutional understandings in 1937, the law itself changed, and it looked to have changed for good. To be teaching constitutional understandings from 1910 after 1937 would have been read as both useless and incompetent. Law students need to know the current law. This, in effect, meant the legal academy would be dominated by liberals for a long time to come.
While hardly at a high point after 1937, conservatism still existed. And so too did conservative thought about the Constitution. The question for me was where do you find that? You are not going to find it in the law schools. But it was not hard to find elsewhere: you can look pretty much anywhere else: books, magazines, radio and television broadcasts. It is just that legal scholars who study the constitutional law tend to be rather parochial. They don’t look in these places. They think serious constitutional thought comes from legal scholars working in the elite legal academy. But, especially as concerned conservatives, that simply was not the case at this time.
It is worth noting that when the legal academy first recognized a rising conservatism within their rather parochial world, it came from a group of increasingly disillusioned legal scholars who, almost to a man, were the students and law clerks of Felix Frankfurter. Frankfurter is a very interesting bridge figure because his unbending—and increasingly anachronistic—adherence to progressivism led him to consistently and unyieldingly stump for the duty of judges in most cases to defer to democratically elected legislative majorities. Scholars like Philip Kurland of the University of Chicago Law School, Alexander Bickel of Yale Law School—both Frankfurter clerks—and even Frankfurter himself, a Louis Brandeis protégé and confidant of Franklin Roosevelt still sitting on the Supreme Court into the 1960s, ended up being classed as “conservatives” because they were counseling deference to legislatures and judicial restraint into the new age of the Warren Court “Rights Revolution.”
The position of liberals on the role of the courts had shifted, and was now out of sync with Frankfurter’s old-school progressivism. The Court was issuing landmark “activist” decisions in cases like Brown v. Board of Education (1954), Mapp v. Ohio (1961), Baker v. Carr (1962), Engel v. Vitale (1962), Miranda v. Arizona (1966). Liberals were now championing strong courts that aggressively wield their judicial review powers. If you stayed with the old progressive “duty of deference” line, even though you had not changed at all politically, you were suddenly classed as conservative … or at least as interesting and attractive to conservatives. This shift set the stage for the introduction of conservatism within legal academia for the first time since the 1930s—though, again, it was through the back-door path of old-line progressives who had simply stayed put since the 1930s, but had not adjusted their theories to conform with the new liberal line on judicial power. Out of this came people like Robert Bork, who himself admired and learned from Alexander Bickel, whom he came to emulate as a proponent of judicial restraint.
But, again, there were still conservatives, and conservatives who were writing and speaking about the Constitution without any particular emphasis on the debates about judicial restraint versus judicial activism taking place in the law schools. These movement conservative thinkers focused on substance, not process. They focused on the whole system, without an undue emphasis on the role of the judge. And these people were everywhere. Their work is often quite sophisticated. Some of these people were academics. People like Friedrich Hayek were pretty much excluded from the academic field of economics for the same reason that conservative constitutional scholars were kept out of the law schools—not necessarily because they were conservative per se, but because their work was understood to be hopelessly out of date. Some of the most prominent academic conservative political and constitutional thinkers were in English departments (Richard Weaver; M. E. “Mel” Bradford). Many were independent scholars and journalists (Brent Bozell, Jr.; James Jackson Kilpatrick). Some were ministers and theologians (Fulton J. Sheen; John Courtney Murray; Francis Schaeffer). Many were political philosophers in political science departments. The most prominent of these were students of the German-Jewish émigré legal philosopher Leo Strauss, either at (first) the New School for Social Research, the University of Chicago, or Claremont McKenna College. People like Harry V. Jaffa, Walter Berns, Herbert Storing, and many others wrote extensively about the Constitution within a framework shaped by the Straussian paradigm. That paradigm focused on the relationship between the political thought of the ancient/classical world and contemporary liberal modernity.
This broader intellectual world outside the law schools had only a tenuous connection to constitutional thought then taking place within the law schools. That connection was still tenuous when the first group of “conservatives” like Kurland or Bickel began to emerge within the law schools across the 1960s. These old-progressives-in-a-new-contest grew into the first generation of law school-based conservative originalists. But as time went on, the connections between the two worlds grew thicker. And that is where we are today. The conditions for interactions between these two worlds are especially ripe given that today’s conservative legalists are less preoccupied with the “problem” of voiding laws passed by democratically elected legislatures, and more focused—as conservative constitutionalists outside the law schools have long been—on substantive commitments concerning the nature and appropriate constitutional structure of the U.S. government.
What were the main streams of that conservative constitutional vision as it emerged in the postwar period?
In its broadest sense, movement political thought would be familiar to your readers. It generally falls into the classifications running the gamut from traditionalism to libertarianism to neoconservatism, as chronicled by people like Frank Meyer and George Nash. By looking at the movement through the prism of its constitutional arguments, however, I spotlight arguments and synergies that have been obscured by most studies of the movement. It is interesting to me that no one thought to do this before, especially since the people making these constitutional arguments and the places they were making them were far from obscure.
Once you look at movement through the lens of constitutional argument rather than simply dividing up people into the categories of traditionalist, libertarian, and neoconservative, you bring to the surface a whole new set of arguments internal to the movement. These arguments are not just between ideological camps, but within them. Traditionalists, for instance, were quite divided. Preeminent amongst those writing about the Constitution were Straussian political philosphers like Harry V. Jaffa and Martin Diamond, and also people like Walter Berns and Herbert Storing. There were localist, states’ rights traditionalists, many of whom were neo-confederates, or at least battling new constitutional reform efforts associated with the civil rights movement. This included people like Richard Weaver and James Jackson Kilpatrick. Then there was the traditionalist constitutional thought that is highly theological that issued from evangelical and fundamentalist Christians like Edmund Opitz, Francis Schaeffer, or John Whitehead. And there were traditionalists and quasi-modernizing conservative Roman Catholics who talked a lot more than is commonly noted about the Constitution—people like Clarence “Pat” Manion, Francis Cardinal Spellman, Fulton J. Sheen, John Courtney Murray, and William Bentley Ball.
These are relatively big-name figures. But a lot of the people I canvas in the book are almost completely unknown. There are lawyers who wrote an article or letter to the editor to The American Bar Association Journal, for instance, or some lesser known conservatives who were one-time or occasional contributors to Modern Age or Human Events. There are also people like David Lawrence of U.S. News and World Report, a former student of Woodrow Wilson’s at Princeton, who wrote a lot about the Constitution, yet has not received anything near the attention he warrants as a significant figure in the postwar conservative intellectual firmament.
On the free-market libertarian side, my book touches upon independent thinkers like Felix Morley, Murray Rothbard, or Ayn Rand, Austrians like Hayek and von Mises, and the Chicago School economists, extending outwards to the public choice economics of James Buchanan and Gordon Tullock, and the law and economics movement with people like Richard Posner. As noted above, the law-school based legal process scholars like Philip Kurland, Raoul Berger, and Alexander Bickel were especially significant in introducing a new sort of conservative constitutionalism to the elite legal academy. These legal process scholars were the progenitors of modern, legalist originalism.
My main interest is not so much in redoing the excellent work that has already been done on many of these people. Again, I am looking at them through a distinctive lens. My interest is in thinking about how their writing and ideas either informed or touched upon debates within the movement over how to think about constitutional restoration and redemption. That brings them in relation to the overarching theme of the book, which is that, over time, those debates over constitutional restoration and redemption helped unite a movement that often started from diverse premises into a relatively cohesive political community.
You describe the development of conservative constitutional and political thought as “in significant respects, a movement of ideas-drenched autodidacts” who took it upon themselves to write about and put into political action what they saw as the American tradition. Do you see this as different from the development of liberalism at that time?
Yes, I do. I think that, after an extended period of mobilization of Progressive and liberal ideas from the Progressive Era through the New Deal, liberalism had arrived at an understanding of themselves as non-ideological, and even as not having particular views about the powers of government, other than that it should be rational, public-spirited, and problem-focused. Liberal self-understandings were that they were simply doing what made common sense to anyone not deformed by ignorance and selfishness. Liberals excelled at policymaking. And they tended to debate the practicalities of public policy. Certainly, a lot of thought and ratiocination went into this. But it was assumed that the fundamental ideas and principles had long since been settled.
Conservatives, on the other hand, questioned the basic premises. This was maddening to those like Lionel Trilling and Richard Hofstadter, who accused conservatives as having no ideas at all, of merely emitting “irritable mental gestures.” I think the issue was not that conservatives didn’t have ideas, but that liberals understood those ideas to have been thoroughly discredited. In a sense, as liberals saw it, there was not much difference between holding discredited ideas, and having no ideas at all.
It has become a cliché to say it, but, yes, conservative ideas were essentially shut out of the mainstream media, and out of core institutions like academia. I hasten to add that it certainly is not true that conservatives at the time had no public voice. Then, as now, their exclusions sat side-by-side with some very loud voices on radio, television, and mass periodicals, whether in Reader’s Digest, or Fulton J. Sheen’s Life is Worth Living, or, for that matter, in the pronouncements of Wisconsin Senator Joseph McCarthy or White Citizens’ Councils, and in public service and advertising campaigns by business groups pitching faith, free markets, and anticommunism. But to the thought leaders, these were the deplorables.
To get the underlying serious ideas, conservatives had to turn to alternative sources, whether magazines like National Review, Human Events, or Plain Talk, or to books published by Regnery, Arlington House, or Devin-Adair. This was apprehended as alternative, even “secret,” knowledge that the elites didn’t want you to know, in the same spirit, in many regards, as Breitbart, Fox News, and (still) Regnery Books are today. These outlets often rejected the prevailing paradigms. Those who immersed themselves in them got the feeling, at least, of being autodidacts, in the realm of political thought, at least. By that, I don’t mean that these people were necessarily uneducated, formally or otherwise. But, as conservatives, they needed to educate themselves in politics, because they were not going to get that education from academia or from the mainstream media.
You note that conservative constitutional thought is embedded within the larger conservative political thought, and therefore is not the same as “originalism”; indeed, some of the schools of thought you discuss, which take a more expansive view of constitutional history, would seem to be at odds with originalism. How did the two come to be seen as allies?
I think we would do better to distinguish originalism as an “ism” (to borrow from the constitutional theorist James Fleming) from broader republican understandings about the corruption and decline of political orders I described earlier. The former was very much a creation of the conservative legal academics like Raoul Berger, Robert Bork, and Antonin Scalia, their students, and associates like Edwin Meese. Situated as they were within the legal academy, these thinkers found a foothold within the intellectual traditions and debates that had been established there. Since the progressive era and even before, the constitutional thought and theory in legal academia was structured around the ostensible problem of the “political” and “activist” judge. The task for law school-based constitutional theorists was to posit the best theory of interpretation on offer to the life-tenured federal judge, to justify the exercise of his or her judicial review powers.
This “countermajoritarian” act (Bickel) was understood to be aberrant—that is, requiring special justification—on the grounds of democratic theory. The theory emphasized the presumptive legitimacy of legislation rooted in public will. This general presumption of constitutionality was longstanding: one can find it stated at least as far back as Justice James Iredell’s concurring opinion in Calder v. Bull (1798). But the claims of democracy were reinforced by late nineteenth and early twentieth century progressive political thought by people like John Dewey. In the legal world, strong statements of the presumption of constitutionality were articulated by the likes of James Bradley Thayer, Oliver Wendell Holmes, Jr., Louis Brandeis, and by the full panoply of New Deal liberals. Legal academic originalism appropriated the arguments of this earlier tradition of judicial restraint and deference to legislatures, but newly wielded it in resistance to the Warren Court “Rights Revolution” (1953–1969). They denounced the Warren Court’s increasingly assertive, rights-declaring, “countermajoritarian” liberal judges. The charge was hypocrisy. Conservative originalists accused liberal judges of betraying the earlier progressive commitment to restrained, deferential judges, and to the presumptive legitimacy of legislative majorities.
It is true that law school-based originalists advanced arguments about the original meaning of the Constitution that went beyond arguments about judges exercising of their judicial review powers. But during its ascendency, originalism’s main calling card and appeal, both within the law schools and outside them, was that it was a theory that would restrain activist judges and free up democratically elected legislatures. This is clear in the most prominent arguments advanced at the time by Edwin Meese, William Rehnquist, and others.
Conservative constitutional thought more broadly, however, had never been especially sanguine about the claims of an unleashed democracy and the presumptive powers of democratic majorities. In this regard, there was something of a disconnect between the arguments being advanced by the law school-based conservative originalists, and the conservative constitutional theory forged outside the law schools. Conservative constitutional thinkers outside the law schools did not foreground the dilemma of the judge, and the ostensible problem of his or her exercise of the powers of judicial review. Since they did not begin with the presumptive claims of democracy, they did not necessarily conceive of it as involving any sort of countermajoritarian “difficulty.” They were interested in the first instance, and most directly, in the powers and limits of government. If the law was constitutional, it should be upheld. If it was unconstitutional, it should be voided. Their understanding of judicial activism and restraint, to the extent they focused on it at all, was defined substantively rather than procedurally.
I would not posit a hermetic separation between conservative constitutional thought in the law schools, especially beginning in the 1980s, and conservative constitutional thought in the movement more generally. But the former was, in some ways, and more at some times than others, quasi-autonomous. The calling card of originalism in the law schools was that it would restrain judges in the exercise of their judicial review powers in a countermajoritarian fashion. The calling card of the movement constitutional thought is that it would restore a long-lost constitutional order that had been corrupted by modern developments.
My book suggests that we would do better to consider the trajectory of conservative constitutional thought as it developed across the postwar years by isolating law school-based originalism from broader arguments within the movement more generally for constitutional restoration and redemption. Only by first doing so, can we then move forward to better understand the relationship between the one and the other.
To address the other issue raised by your question, my book also notes that there were plenty of sophisticated movement constitutional thinkers who were not originalists in the law school sense. They rejected that sort of originalism. The entire purpose of law school-based originalism was to tie Ulysses firmly to the mast, to restrain him from seduction (or, as Robert Bork would have it, “temptation”) by politics. Not a few conservatives, including Russell Kirk, Brent Bozell, Martin Diamond, and Willmoore Kendall, evinced, in places, a Burkean sensibility emphasizing an imperative of incremental, organic development over time. For the law professors, this vitiated the logic, and dangerously loosened the knots, of originalism. It allowed for judicial discretion. But prudence, discretion, and incremental adjustment are not problems for Burkeans: they are of the essence of Burkean traditionalism. And, to the extent that the Founders themselves were possessed of Burkean sensibilities, they were perhaps not a problem for the Founders either.
There were others—and here the libertarians especially serve—who really focused on original principles, like liberty or (for Harry V. Jaffa) equality. This involved founding principles, and thus it was an originalism of a sort. But it certainly does not counsel judicial humility and deference to legislatures. It offers no more restraint than liberal or left versions arising out of avowed commitments to those same principles.
Indeed, you suggest that a return to a more substantive constitutional vision—which implemented political and cultural goals through even “restrained” judicial decision-making—would not be inconsistent with the traditions you have identified. In fact, you suggest the “overlapping consensus” between originalists and libertarians with the broader populist conservative movement might be breaking up; do you see that as a future focus of conservative argument?
I’m not sure I see the overlapping consensus between originalists and libertarians as breaking up. There has been some serious grousing, to be sure, especially from members of the Christian Right—and, especially, the traditionalist Catholic Right—that libertarianism has cannibalized the contemporary conservative movement. Some of these Catholic traditionalists have charged the Federalist Society and Federalist Society-vetted members of the federal judiciary with skewing towards libertarianism and away from moral traditionalism.
But, for the most part, and following the phenomenon described by political scientists like Alan Abramowitz and Lilliana Mason, the religious traditionalists and the libertarians still identify much more with each other than they do with their progressive enemies. At this point, moreover, both are perfectly comfortable with enlisting an activist judiciary in their cause. By “activist,” I simply mean that neither has any compunctions about judges wielding their judicial review aggressively to void laws they adjudge to be unconstitutional. Judicial activism to them is when the Court voids a law that it shouldn’t have, and judicial restraint is when it upholds a law that it should have. It has nothing to do with the number of laws voided or upheld. The test of activism or restraint is substantive, not procedural.
You have a chapter on “Catholic stories,” which retraces how some Catholics came to embrace American democracy, while others continued to be suspicious. That debate remains very much with us. How did some American Catholic conservatives become comfortable with the American liberal regime?
That is a very interesting process. In some sense, I’m sure, it is the story of the Americanization of any immigrant group that might initially fall outside the American white, northern European Protestant Christian mainstream, whether racial, ethnic, or religious: they both assimilate and make their own contributions to the ongoing development of the mainstream culture, which is perpetually in flux. The history is long and complicated. But suffice it to say that there are those who argue that American Catholics from John Carroll onwards, including the Catholics who played a part in the settlement of Maryland, were always acclimating and adjusting to the political culture of the new world, with its heightened commitment to democracy and popular sovereignty, its suspicion of hierarchy, and its commitment to limited government and individual rights. Whatever the official church doctrines and dogmas, American Catholics became Americans like anyone else.
What was different—and this is something that many of the Founders, casting a wary eye on Quebec, recognized—was that the official doctrines, and, indeed, the entire structure, of the traditionalist Catholic Church were much more anomalous in the U.S. than they had been in Europe. U.S. political thought was fed not just by secular Enlightenment thought, but also by Protestantism. And whatever was going on with ordinary Catholics, there were always those who saw the Church as having an answer to the problems caused by liberal modernity. This Catholic traditionalism too, if mostly on the fringes, has a long history in the U.S., from Orestes Brownson to Brent Bozell, and on to Patrick Deneen and Adrian Vermeule today. And there have always been magazines and other gathering places for these people and this thought, like Triumph, and Crisis and numerous websites and blogs today.
What I focus on in Conservatives and the Constitution is a particular moment and context: the relatively sophisticated mid-century Thomist revival, at a moment when Catholics where unusually visible as Catholics in popular culture, like television and film. There was a lot going on, not least the Vatican II conclave in which the Church, as one of the prime movers in that, the American Jesuit priest John Courtney Murray described it, signed “articles of peace” with many of the core elements of liberal modernity, including democracy, individual rights, and the separation (“distinction”) between Church and State. If the U.S. was the exemplary liberal modern nation, then it is obvious that this was closely related to the process of Catholic Americanization, which was soon put at the red-hot center of American politics by John F. Kennedy’s bid for the White House.
I treat Murray’s major statement on how good Catholics could be good Americans, We Hold These Truths: Catholic Reflections on the American Proposition (1960), at the center of these developments. That book, I argue, one of the era’s major contributions to political theory, even though, so far as I know, almost no one at the time—especially law professors—put it in that category. It is an argument that essentially places the Declaration of Independence’s commitment to natural rights at the heart of the American constitutional and political tradition, and interprets that commitment by the lights of a Thomistic understanding of natural law. If you know anything about trends in contemporary conservative political and constitutional thought, you know that this Murrayist framework is becoming highly influential on the Catholic and broader American Right.
Murray was a liberal Catholic. His task, in many respects, was inclusion and assimilation of Catholics, who were formerly perceived as outsiders to the American political and constitutional tradition. Many of today’s Murrayists are conservatives. Their task, by contrast, is to position themselves at the true defenders of the Founders’ vision of natural rights, and cast out progressives and liberals—ostensibly secularists—as outsiders to the American political and constitutional tradition, if not outright enemies and traitors. This positions conservative Catholics as the true defenders of the American liberal constitutional regime. Again, there are conservative Catholics who continue to reject liberalism. But that, at least, is where the battle lines are increasing drawn on the contemporary Catholic Right.
In your introduction, you note that this is one book of a three-book project on conservative thought. Can you give us a preview of the arguments of the remaining books?
I am not so grandiose as to have embarked on the project of writing a multivolume work! I have been working on this for quite some time. What happened is that I wrote one book that turned out to be too long. I was forced to cut two-thirds of what I had written. That is the material that will constitute the next two books.
Conservatives and the Constitution is the part of what I had written that sets out the big picture. It focuses on general, overarching arguments within the postwar conservative movement about how we should understand the Constitution. I first present some of the most significant of these freestanding arguments. Following that, in a succession of chapters, I present some of these broader arguments as they were framed by the stories of constitutional abandonment and would-be restoration and redemption concerning, first, two flashpoint questions of the time (economic liberty and confronting the communist threat) and then, second, by key identity groups that ultimately coalesced to form the Christian Right. Left on the cutting room floor was all the material that more specifically addressed particular constitutional issues, like the separation of powers, federalism, civil rights, or a diverse array of civil liberties.
Those of us who teach constitutional law to undergraduates typically divide the subject into a two-semester sequence, the first emphasizing structures and powers, and the second focused on civil rights and civil liberties. That seemed a useful way of dividing up that material, and that is how I divide up the material that I will present in the next two books.
The broader argument and theme of those books will be consistent with my theme of stories about constitutional restoration and redemption set out in the Conservatives and the Constitution. But, as freestanding books, they will move the argument forward, advancing new arguments that arise more directly out of their subjects. The book on conservative arguments about the structures and powers of government will chart the movement’s foregrounding of attacks on runaway judicial power, and chart the relationship between that very prominent set of arguments and the postwar conservative movement’s more global constitutional critique of the modern American administrative and social welfare state.
The book on conservative arguments involving civil rights and civil liberties will focus somewhat less than is typical on southern conservative resistance to civil rights—which was certainly real, and of considerable importance—than what to me is currently the more significant question of how the movement moved to leave behind that former resistance following their string of massive losses occasioned by the Supreme Court’s Brown v. Board of Education (1954) decision, and the transformative Civil Rights Act of 1964, Voting Rights Act of 1965, and Immigration and Nationality Act of 1965, and reimagine themselves as the polity’s foremost champion of constitutional liberty and equality, rightly understood—and even of anti-racism. Rather than recounting the now well-known history of White Citizens Councils, this seems to me the more interesting, intriguing, and currently more important question. The book will take that past and ask how, beginning in the mid-1960s, it began to be reworked into a politically viable vision for the movement’s present and future.