Review of Ken Kersch, Constructing Civil Liberties:

Here's my very enthusiastic review, out in the current American Historical Review: This is a relentlessly interesting book, one that can't help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes.

For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis's famous 1890 article supporting a constitutional "right to privacy"—later cited as the progenitor of modern "right to privacy" cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the "old" right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.

The whiggish narrative also asserts that a defining characteristic of American progressivism has been solicitude for the rights of oppressed minorities, especially African Americans. In fact, however, before the New Deal era most progressives were at best indifferent to African Americans' plight. Indeed, some were openly hostile to African American, and launched such progressive schemes as the wave of residential segregation laws that swept through the United States in the 1910s. These laws were invalidated by a unanimous decision of the "conservative" Supreme Court in Buchanan v. Warley in 1917, to a chorus of criticism by progressive legal scholars.

Organized labor, not civil rights, was the favored cause of progressives in the early twentieth century, and labor unions, especially AFL and railroad unions, were themselves hostile to African Americans. African Americans, in turn, for the most part fiercely opposed labor unionism. In alliance with the businesses that often provided them with work over white workers' objections, African Americans supported such "reactionary" policies as labor injunctions, strikebreaking, and the legality of yellow dog contracts. Kens argues that progressives only embraced the cause of civil rights when African Americans dropped their prior attachment to pre-New Deal individualistic conceptions of rights, and, modeling themselves on the successful model of organized labor, organized themselves as a constitutional class entitled to group rights in a statist legal and economic superstructure.

Finally, progressive conceptions of appropriate education policy were for the most part driven far more by a vision of imposing a centralized, statist school system on the American people than on any principled conception of civil liberties and separation of church and state. Progressive intellectuals strongly opposed the Meyer, Pierce, and Tokushige Supreme Court opinions of the 1920s, which protected local school board prerogatives and private schooling against progressive demands for homogenization and centralization of education. Progressives, in fact, were overtly hostile to the very existence of Catholic parochial schools; the constitutionality of banning such schools was at the heart of the Pierce case. By the 1960s, progressives and their allies on the scholarly community reinterpreted the quintessentially conservative Supreme Court cases—which their roots in the "reactionary" Lochner v. New York tradition—as civil libertarian cases protecting individual autonomy from conservative religious forces (see Griswold v. Connecticut and Roe v. Wade). However, progressive hostility to traditional Catholicism continued, as the history of both of these cases makes clear.

Similarly, after the New Deal, the overtly statist progressive attempt to in the 1920s to outlaw Catholic schools morphed into an attempt to ensure that government aid to Catholic schools was beyond the constitutional pale. The "civil libertarian" doctrine promulgated to accomplish this goal was the "separation of church and state." Courts initially used this doctrine primarily to suppress government assistance to Catholic schools and Catholic-dominated "release time" programs. However, as atheists and liberal Jews became increasingly influential in separationist organizations, the attack on Catholic education morphed into a broader war against expressions of Christian religious sentiment in the public schools, culminating in the Lemon v. Kurtzman decision in 1971. Not surprisingly, whiggish narratives neglect the anti-Catholic sentiment that initially spurred these constitutional developments.

Kersch puts all of these examples into the broad framework of American political and constitutional development. Most historians, law professors, and political scientists who write about constitutional history likely think of themselves as independent liberal, perhaps even radical, critics of their government. Kersch, however, will have none of it. He accuses the scholars who spun and sustained the fanciful but entirely mainstream whiggish narrative of the development of "civil rights and civil liberties" of "being heavily implicated in the political project of justifying, institutionalizing and ... defending the New Deal constitutional regime." Rather than serving as the incisive and independent critics of their own imagination, the academic establishment has served as an implicit fourth (or fifth) branch of government, rewriting American history to retroactively justify the revolutionary changes to the American conception of rights, liberties, and the proper role of government that the New Deal precipitated and institutionalized.

Ultimately, this short review cannot do justice to the brilliance of Kersch's insights, or the breadth of his research. Suffice to say that Kersch is fully up to the challenge of explaining and defending a revisionist thesis of tremendous magnitude. Constructing Civil Liberties is simply the most provocative and enlightening book on constitutional history that I have ever read.

[Buy the book here.]

Voorhies (mail):
I'm on my way to find a copy (how about a Link).
10.17.2005 1:04pm
Michael B (mail):
"This whiggish narrative, however, is full of holes."

Holes the size of the Andromeda galaxy. Assumming this review is a sound gauge of the probative quality (and I just bought it), the subtitle is helpful: Discontinuities in the Development of American Constitutional Law. In large part, it is the gloss provided by the malformed trinity of ideology, populism and celebrity which helped forward the discontinuities referred to.
10.17.2005 1:44pm
Gordon (mail):
With apologies to Professor Volokh, who doesn't think much of Justice O'Connor's argument, here is what she wrote in McCreary County v. ACLU of Kentucky:

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people," has proved true. Americans attend their places of worship more often than do citizens of other developed nations,and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
10.17.2005 2:33pm
Michael B (mail):
O'Connor's general statement (and it is a sweeping generality, one which exceedingly few would disagree with as such) is used to evade the specifics of the case; a fundamental categorical confusion. Rigor is absent, yet applause ensues.
10.17.2005 2:50pm
This sort of argument is similar to "The Founding Fathers were chauvinists " or "Abe Lincoln was a racist" or "FDR chose to appease the Dixiecrats at every opportunity".
10.17.2005 4:13pm
I agree with Harpo. The point of David B.'s historical work, which I am sure is of very high quality, seems to be to show that the Lochner-types were more progressive than the progressives. Actually the main division of opinion was partisan, not narrowly ideological, throughout this entire period. In truth, almost all whites were racist in the early part of the twentieth century (though Republicans nurtured a residual pro-black heritage and thus were more inclined towards civil rights).

Debate on Catholicism broke down pretty much on Republican-Democrat lines. Republicans agitated against Catholics because all of the Catholics were Democrats and anti-Catholic feeling ran high among Protestants (as it did among the Framers, who in many places say explicitly that the First Amendment was not intended to protect Catholicism; read the Adamses on this topic). "Progressives" were mainly Protestants, so they incorporated their residual anti-Catholicism into "Progressivism." But this cuts both ways: Republican Protestants also nurtured residual sympathy for blacks, and racial progressives in the Roosevelt circle, like Harold Ickes and Eleanor Roosevelt, were usually ex-Republicans.
10.17.2005 6:13pm
DavidBernstein (mail):
I think anonymous is missing the point of Kersch's book, which is not that the "conservatives" of the Lochner era were more progressive than were the progressives, but that the worldview of legal progressives of that era was in many aspects not "progressive" according to today's standard, but that history has been written in a way that negelcts that fact.
10.17.2005 7:02pm
magoo (mail):
"This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals."

Is this assertion (among several) really an attempt at thoughtful dialogue? Good grief.
10.17.2005 10:20pm
Drewsil (mail):

In all fairness this is a book review. Those statements are obviously unsupported here but presumably have plenty of support within the actual text. They are presented here essentially as teasers which will hopefully encourage people to get the book and find out if they can be supported.

On a separate note, I'm always a bit leary of broad historical rewrites, especially ones that are about peoples motivations rather than about their actions. Whenever multiple people act in concert there is generally not a single motivation for their actions, but rather a mix of ideas and conceptions which motivate the people to strive for a common goal. One should keep in mind that providing evidence for statist motivations does not, in and of itself, provide evidence against whigish motivations. Finally just because something was poorly (or even evily) motivated does not make it wrong.

Having said all that this sounds like an interesting read, and I'll probably pick it up thanks for the pointer.

10.18.2005 2:40pm