A Learned but Dismissive Take on Conservative Constitutionalism

Editor’s Note: This essay is part of a Law & Liberty Symposium on Ken Kersch’s Conservatives and the Constitution, and is drawn from a panel discussion held at Pomona College on November 15, 2019 and sponsored by Claremont McKenna College’s Henry Salvatori Center’s Lofgren Program in American Constitutionalism.

Conservatives and the Constitution makes a lasting contribution to our understanding of conservative thought in the 20th and early 21st centuries. Its ambitious scope reflects an extraordinary intellectual effort and Ken Kersch’s copious scholarly learning. Even though it is not written from a conservative perspective, the author attempts to be (and in some ways is) fair and balanced toward his subject. Nonetheless, and despite my admiration for much of the book, I believe it makes one serious error and it fails in a fundamental way to understand conservative thinkers as they understand themselves.

In his introduction, Dr. Kersch seeks to distinguish his work from those liberal scholars such as Corey Robin who understand the conservative disposition as inherently an ideology of the powerful that seeks to justify, maintain, and promote political, economic, and social hierarchies. That understanding, Kersch writes:

does not work descriptively for American conservatism, either in recent years or considered over the long term: many American conservatives, simply put, are not elites by any definition other than race privilege, while many liberals, including the Princeton- and Yale-educated Robin (also white), indubitably are.

Unlike many of the faculty Left who simply write off conservatives as bigoted haters and can’t possibly fathom intelligible reasons one might embrace conservatism, Kersch says he wants to take conservative ideas seriously. While it is certainly not the purpose of the book, a possible salutary effect on its readers would be to lessen the reflexive contempt that too many liberal academics have for conservatives. Insofar as Conservatives and the Constitution provides a deeper understanding of the richness and diversity of conservative thought, it will contribute to a more moderate and tolerant political climate especially on college campuses, which would be no small academic feat.

Unfortunately, the book likely will not be received in that way or have that beneficial effect. For someone who purports to be primarily attempting to understand his subjects as they understand themselves, Kersch’s tone is off. A thinly veiled layer of contempt pervades the work. A couple of examples: Fr. James Schall, a recently-deceased priest who for years taught at Georgetown, is not identified simply as a priest or a Jesuit or a conservative, he is “the right-wing priest Father James Schall.” What work is the adjective “right-wing” doing? It comes across as disparaging. Harry Jaffa didn’t just study with Leo Strauss, he was “under the tutelage of the master” Leo Strauss. In the margin, I wrote, “it’s as if he were training to be a Jedi Knight.” During the Reagan presidency, conservatives didn’t translate their academic and philosophical thinking into policy proposals, they “narrowed and weaponized” them. Maybe these are accurate descriptions or maybe such language will help make the book appealing to its intended liberal audience. Whatever the case, I would have found it more appealing if it didn’t have an undercurrent of exposé and invective.

Getting Harry Jaffa Wrong

Perhaps these small points are petty, so let me turn to a more substantive criticism. In the area of conservative thought with which I am most familiar—what Kersch calls West Coast Straussianism—he makes a significant error.

Harry Jaffa is the pivotal intellectual in the book’s story. One gets the feeling that Kersch thinks Jaffa is the figure the Left should most fear because Jaffa championed the principle of equality. A concern for equality supposedly belongs to the Left, but Jaffa argued that equality is actually a conservative principle. Indeed, he was devoted to showing how equality was the founding principle of America, and thus the principle that American conservatives ought to attempt to conserve.

Kersch gets Jaffa mostly correct, but there is one aspect of his interpretation that significantly misses the mark. Kersch says that Jaffa held that American constitutionalism, properly understood, aims at the summum bonum. Summarizing Jaffa’s understanding, Kersch writes:

Unlike modern social scientists, contemporary relativists, and other positivist progressive/liberals, both Aquinas and Jefferson were committed to the proposition that there are objective standards of right and wrong. Following Aquinas in this regard, Jefferson had held firm, Jaffa said, to the conviction that democratic politics, properly understood, involved at its core the advancement of a unified and ultimate Good: “the laws of nature mentioned in the Declaration.” Everything followed from that, and all must be considered in this light.

Jaffa certainly argued that the excellence of the American regime was based upon its recognition of adherence to human equality, a truth established by “nature and nature’s God.” But Jaffa emphatically did not believe that democratic politics, properly understood, “involved at its core the advancement of a unified and ultimate Good.” The opposite, in fact, is true.

Jaffa held that the principles of the American founding are the principles of the best regime possible in the modern era because they lowered the ends of politics. The Founders aimed to secure civil and religious liberty for American citizens, not the salvations of citizens’ souls. By separating church and state and removing sectarian religious disagreements from politics, Jaffa taught, civic friendship between individuals of different religions became possible; Jews and gentiles both could be members of “we the people.” As George Washington wrote to the Hebrew Congregation of Newport, Rhode Island:

Happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

Jaffa’s understanding of the excellence of the American regime lies not, as Kersch says, in its pursuit of the summum bonum, but in its reasoned and principled rejection of the summum bonum as the direct object of political authority.

A Dismissive Assessment of Conservative Thought

Kersch’s misunderstanding of Jaffa is the book’s most substantive error. It is not its only shortcoming, however. For a book that is all about ideas, it is strangely allergic to engaging those ideas on their own terms—that is, evaluating the veracity of conservative ideas. Kersch relates that conservatives have long-running disputes about the deepest and most fundamental principles of American constitutionalism, which is true. To take just three schools of thought discussed, we learn that natural rights conservatives (West Coast Straussians such as Jaffa and Charles Kesler) embrace the Declaration, whereas structuralists (Martin Diamond, Walter Berns) emphasize the Constitution’s forms, and Southern conservatives (Willmoore Kendall, Mel Bradford) turn to symbols and tradition. But we never learn who gets what right or if Kersch thinks anyone gets anything right. The lasting impression given is that the author thinks modern conservatism really is just about storytelling.

Kersch calls conservatism a “living” tradition—he means it as an ironic dig—because conservatives’ understanding of the Constitution has changed over time. An obvious reason for this change is the intra-conservative intellectual disputes that Kersch richly details. It would be odd, wouldn’t it, if conservatism had not changed after three generations of debate about the Constitution’s meaning? But Kersch seems to believe that conservatives have adapted over time for political, not intellectual, reasons—that is, conservatives change their narratives about the Constitution not because they have deepened or improved their understanding of it, but because they calculate the political expediency of doing so.

The view that conservatives tell stories to gain power extends to Kersch’s unjust smearing of some of constitutional conservatism’s leading contemporary thinkers, including Robby George and Hadley Arkes. It is “perhaps surprising,” Kersch writes, to realize that the “denizens” of conservatism “have come to associate themselves not with racism but with anti-racism.” I note that it is only “surprising” to realize conservatives are against racism if you presume that conservatives are racists or embrace racism. Kersch continues:

It is significant but all too rarely noticed, that, in recent years, movement conservatives who speak, write, and think about the Constitution, especially on the Roman Catholic, Evangelical, and Fundamentalist Christian Right, have become second to none in repeatedly and aggressively denouncing chattel slavery. Indeed, for those who care to look, it can sometimes seem that slavery, abolitionism, Frederick Douglass, and Abraham Lincoln are now the major scholarly interest of the constitutionalist Right in the age of the culture wars.

Why do contemporary conservatives focus on the Lincoln-Douglas debates and Frederick Douglass? Not because doing so helps us to understand America’s original sin of slavery and thereby more vigorously pursue America’s true and enduring principles of equality. Rather, Kersch says, for contemporary conservatives:

Black people—except to the extent that they are themselves conservative Christians—are largely irrelevant: they represent, rather, a starting point, a philosophical first premise. In the contemporary right-wing constitutional consciousness, black people stand as signifiers for the proposition that there is such thing as clear, absolute, moral right and wrong (see chattel slavery).

“Vicarious abolitionism,” Kersch explains, “has been the rocket fuel the contemporary constitutionalist Right has used to launch and fight the culture war.” Conservatives do scholarship on Lincoln, in other words, in order to arm themselves in their battles against abortion and gay rights.

It very well may be that understanding Lincoln supports the pro-life cause; some liberals, such as George McKenna, certainly have thought so. But simply to dismiss conservative scholarship on American constitutional history and political philosophy as weapons in the contemporary culture wars is to fail to take conservative ideas seriously as ideas. Kersch does exactly what he says he was not going to do.

“It seems to me,” Kersch writes, “liberals are still punching in the dark.” By shedding light on conservative thought, Kersch seeks to help liberals to take better aim. He intends to write an exposé. What the book actually reveals is that even the most learned liberals can’t seem to treat conservative ideas seriously.

Perhaps it’s just too much to hope that someone from the Left will appreciate that some conservatives actually are motivated by principled understandings of justice, liberty, and equality. It is disheartening to realize but perhaps necessary to understand that, at least during the Trump presidency, the academic Left can’t conceive of conservative ideas as reasonable, rational, or intellectually defensible.

If you don’t take conservative ideas about the Constitution seriously and at face value, you can’t actually understand conservatives and the Constitution. Nonetheless, Conservatives and Constitution does offer an informative and widely-ranging account of post-New Deal conservative intellectual thought. Aside from its mistaken interpretation of Harry Jaffa and its unfortunate presumptions, the book accurately and richly summarizes an immense volume of conservative scholarship. One can disagree with an author’s reasons for writing and even with his evaluation of his subject matter, but still recognize that he helpfully conveys the subject of his study. Conservatives and the Constitution certainly does that and, in doing so, is a majorly scholarly achievement.