« George Christie: The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism
Michael Ramsey
| Main | Josh Blackman on the DACA Case [Updated]
Michael Ramsey »

11/10/2019

James Rogers on Ken Kersch on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Originalism, Conservatives, and the Constitution (reviewing Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, by Ken I. Kersch [Cambridge 2019]).  From the introduction:

In Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, Ken I. Kersch provides a tour de force survey of conservative constitutional theory between World War II and 1980. The book, the first of a planned trilogy, provides as much an intellectual history of American conservatism during this period as it does a conservative constitutional theory. The scope of his discussion impresses. From traditionalists, libertarians, Straussians, religious leaders (Catholic, Evangelical, Jewish and Mormon), to Austrian economists, neoconservatives, public choice and rational choice theorists, all come within the book’s compass.

Kersch argues throughout that liberals—and the liberal professoriate, particularly those in law schools—do not recognize the heterogeneity of conservative constitutional thought prior to the Reagan Revolution of 1980. This lack of recognition results partly from the absence, if not exile, of conservative academics from the ascendant liberalism of the legal academy during the period (until the early 1970s). This lack of recognition also results from the identification today of conservative constitutionalism with “originalism.” Doing so, however, projects backwards an intellectual movement gaining ascendency largely after 1980, even though its roots were planted in the earlier period.

In a book as ambitious and wide ranging as Kersch has written, there are bound to be a few missteps. Some minor, if not almost trivial, others more a matter of perspective, and a few are more serious. ...

And from further on, this comment on orignalism:

There is, after all, a difference between constitutional theory and a theory of constitutional interpretation, even as they interrelate. To be sure, one’s constitutional theory cannot help but influence one’s constitutional interpretation in the face of textual ambiguity. Yet originalism is a theory of constitutional interpretation, and as such it is not—nor can it be—a constitutional theory in itself. Indeed, significant differences in constitutional theories divide modern originalists—despite agreement that textual interpretation should be originalist. (Consider the heated discussion among L&L contributors on the Fourteenth Amendment’s privileges and immunities clause some months back.)

Kersch at times writes as if modern originalism is at variance with conservatives during this period who advocated amending the Constitution or who criticized significant aspects of the Constitution. While originalist legal scholars undoubtedly have opinions of what provisions they think should be included or excluded in a constitution, the interpretive project of originalism is to understand the text of the Constitution as it is actually written. As an interpretive methodology, originalism is agnostic as to what should or should not be included in that text. Critics of originalism often conflate focus on understanding original text with worshipping original text. This as opposed to originalism as an interpretive methodology whether one approves of the text or not. The mistake in this gloss is more difficult to make when thinking of originalist approaches to statutory interpretation (a major focus of Justice Scalia’s book on originalism). There, originalist/textualist interpretation of the statutory text can rarely be mistaken as “worship” of the often obscure topics legislated in the interpreted statute. “Constitutions” are just special types of statutes.

Here is the description of Kersch's book from Amazon:

Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

(Thanks to Mark Pulliam for the pointer.)