Conservative Constitutionalism beyond Originalism

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.

Originalism as a mode of interpreting the Constitution has long run beyond conservative circles. Yet conservative understandings of the Constitution are often reduced to originalism. Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism illuminates the diversity of conservative constitutional thought from the middle years of the 20th century—beginning essentially with Brown v. Board of Education—to the Reagan years and the solidification of originalism. It is a stunning and learned piece of scholarship that also happens to be timely. But Kersch’s work is not really meant to speak to the moment. That’s neither the ambition nor the temperament of Conservatives and the Constitution.

Kersch wants to understand the range of constitutional thought that shaped modern conservatism. While we do get bits on originalism and especially conservative criticism of some forms of originalism, Kersch brings to life the diversity of conservative constitutional thought with regard to markets, anti-communism, and religion, treating with care both evangelical and fundamentalist Christians in one chapter and Catholics in another. What these different and at times competing and conflicting strands of conservative thought have in common is an effort, in their eyes, to restore America to its founding constitutional principles in the heyday of American liberalism.

Kersch calls these different analyses of conservative thought “stories”—so, for instance, we get stories about markets, stories about communism, and evangelical and fundamentalist Christian stories. Some will be tempted to dismiss this approach, as if Kersch treats everything as a narrative or a story with no regard for truth. This would be a mistake. Kersch demonstrates how political discourse itself—the framing of ideas in order to make sense of the world around us and the social and political problems we face—shapes our political reality. Narratives about the nature and logic of America are in fact constructed by political actors and political movements to understand themselves and what they are trying to achieve. All movements engage in such narrative construction (as Kersch demonstrated with regard to progressives in Constructing Civil Liberties). This is true, whether the narratives they construct are themselves fully true or not.

I found Kersch’s effort to illustrate these different strands of the modern conservative movement, mostly without polemic or advocacy, helpful and refreshing. At bottom, he wants to understand these disparate advocates of conservative constitutionalism as part of American political development, which means situating them in time and place and attending to the writings and arguments they made against a pervasive liberalism and against one another. It’s a fascinating story that, drawn largely from those who engaged in such efforts, ranges from Reader’s Digest and Life magazine to obscure tracts of theology and political philosophy. While on the whole it is elegantly told, Kersch’s telling can at times be dense and overlabored. Even so, Kersch’s excavation of the range of conservative constitutionalism is particularly welcome against the flattening of the conservative imagination, which all too frequently justifies Donald Trump by pointing to supposedly originalist judges, outsourcing constitutional thought and education to the judiciary.

Some of these constitutional understandings, such as libertarian thinking about markets and limited government or Straussian political theory, will be familiar. I focus on the two chapters taking up religious conservative movements partly because they have received less attention. In turning to the constitutional thought of evangelicals and fundamentalists, Kersch makes important distinctions between these groups who are all too often conflated. Evangelicals and fundamentalists were not natural allies—indeed, evangelicals were behind the idea of a living constitution in the late 19th century. This was an alliance that required negotiation over time. It’s also a reminder that conservative thought in the middle years of the 20th century embraced not only notions of a living constitution but thinking that is distinct from originalism as understood by law professors and judges. Here especially, Kersch draws on capacious understandings of the Constitution that are not well known outside of what became the Christian right.

Consider the work of the evangelical theologian Francis Schaeffer who in books and documentary films gave a sweeping overview of the development of Western Civilization. In his telling, the American Constitution has its origins and underpinnings in the thought of the Scottish theologian Samuel Rutherford. Most of us who study the American Constitution may ask, “Who?” Yet Schaeffer places Rutherford’s tract, Lex Rex (1644), as the key to understanding American Constitutionalism with its insistence that the law is king, reversing the idea that the king is law. Hailing from Scotland, John Witherspoon, the first president of Princeton and a signer of the Declaration of Independence, took up this theology and passed it on to his students at Princeton, one of whom happened to be James Madison, sometimes called the father of the Constitution. Voila, Rutherford as founder.

John Whitehead, the founder of the Rutherford Institute, which began as an organization defending religious liberty, drew upon this understanding of American constitutionalism in his The Second American Revolution. Whitehead followed Rutherford’s insistence that government must be founded on the Bible and “the Word of God rather than the word of any man.” Writing John Locke out of America’s constitutional genealogy, Whitehead argued that it was Rutherford who established the principle of equality and liberty, which again was passed on to Madison by way of Witherspoon. For Whitehead, America’s movement from God’s will and the Bible has eaten away at American constitutionalism. It’s a powerful story even if a highly unlikely one. But the historical truth is not what’s crucial—it’s an influential understanding that pervades large swaths of the conservative movement. We’re indebted to Kersch for this tutorial in a pervasive aspect of American culture that is not widely understood in academic circles preoccupied by the Constitution.

Catholic stories are probably more familiar, especially beginning with the work of the Jesuit priest and liberal theologian John Courtney Murray. Murray’s We Hold These Truths was a powerful effort to weave the Declaration of Independence and Catholic teachings together, seeing American democracy as premised on natural law. Murray’s achievement was to persuade Catholics to accept religious pluralism as a necessary artifact of religious liberty rooted in the American Constitution and consistent with Catholic teaching. Murray also sought to persuade non-Catholics that Catholics could be attached to the American Constitution. Situated in the Catholic natural law tradition, America’s Constitution was “better than the founders knew.”

Yet deep tensions between a true Catholicism, as understood by some conservatives, and America’s liberal constitutionalism remained just under the surface. These tensions have recently broken into the open. Leading conservative Catholic thinkers have insisted on the failure of America’s liberal constitutionalism and the poverty of liberalism and religious pluralism. They have spoken openly about re-ordering the public square for the “Highest Good.” There are genuine flirtations with theocracy. Just how this will work—especially for Catholics who remain a religious minority in America—is unspoken. They often seem more concerned with tearing down liberal institutions than any notion of constitutional restoration or redemption.

Conservatives like the Catholic Phillip Muñoz and the evangelical David French have defended American liberalism against incipient theocratic arguments that reject the remarkable historical achievement of religious liberty and toleration as a liberal’s game. Such criticisms of America’s constitutional liberalism neglect many of its virtues, giving us a thin caricature and incendiary rhetoric.

Yet across a range of issues—and not just on the presidency of Donald Trump—conservative quarrels have broken out, with some seemingly wanting to tear down institutions with nihilistic glee and others attending to the sober and difficult work of preserving what is best about them. Kersch’s work shows how both of these postures have roots in modern conservatism, though he concludes by noting the former has gained the upper hand. It’s difficult to disagree.

But let me end on a positive note by turning to Martin Diamond, who plays a small role in Kersch’s story, but a larger one in thinking about what’s worthwhile in American constitutionalism. In arguing for the importance of understanding the Constitution we inherited, Diamond tried to speak to both progressives and conservatives, pointing to what they had in common, but also to the balance between them that was essential to preserving the American constitutional order. Even more, Diamond insisted that the maintenance of our political institutions could never be a simple task of restoration—as so many of the conservatives in Kersch’s pages suggest—but required us to think anew as we work through the problems of our age. As we confront this task, we could use much more of Diamond’s sobriety and moderation.

And yet, as Kersch notes in his conclusion, sobriety and moderation are largely lacking in what he calls “The Trump Gambit” whereby conservatives and Republicans—with notable exceptions—have thrown in with Trump, who is stunningly ignorant of the Constitution. Kersch’s book helps us better understand the struggle underway for the future of conservativsm. While conservatives and Republicans have been known as the party of ideas, Kersch shows what we are now witnessing as the Republican Party remakes itself in the image of Trump: How those principles and ideas were often reworked and revised—or altogether abandoned—to secure a political coalition and forge a unified political identity.