Before Originalism
What did conservatives think about the Constitution before Scalia? That is the premise of Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism by Ken I. Kersch. He argues:
“Liberals had risen to power in significant part by arguing that the conservative preoccupation with strict adherence to the constitutional rules, as conservatives understood them, was leading to an unconscionable quietism in the face of a new set of massive – and addressable – social problems. For their part, late twentieth-century conservatives had risen to power in significant part by arguing that the liberal preoccupation with government problem solving through public policy had amounted to either an actual or de facto abandonment of the nation’s foundational constitutional commitments, evincing not only a disregard of the terms of the nation’s social contract concerning the powers of government but also of the substantive principles, such as limited, divided government and the protection of rights that that contract had been instituted to protect.”
Mid-century conservatives lacked the vocabulary of original public meaning (and it’s not always clear that they would have wanted it if they had been cleanly presented the argument). Instead, “postwar conservative constitutional argument was diverse, multivocal, contested, mutable, and developmental: put otherwise, it was perpetually constructed and reconstructed across time in response to perpetually changing problems, contexts, and challenges posed by a changing policy and political landscape.”
Kersch tours those diverse perspectives, and - recognizing myself in his portrait - I welcomed his line that “The modern conservative movement has been, in significant respects, a movement of idea-drenched autodidacts.” Kersch does not always stick to an exact interrogation of constitutional thought, perhaps partially because it only so often was explicitly addressed, but the wanderings are insightful into the broader movement.
Some especially interesting tidbits:
Excerpts from Douglas MacArthur’s speeches in the 1950s that are quite conservative despite his viceroyalty of Japan being New Dealish - you can see why he was popular on the right, and imagine how history might have been different had a different 5 star general been president:
“Our economic stature built under the incentives of free enterprise is imperiled by our drift through the back door of confiscatory taxation toward State Socialism… History fails to record a single precedent in which nations subject to moral decay have not passed into political and economic decline. There has been either a spiritual reawakening to overcome the moral lapse, or a progressive deterioration leading to ultimate national disaster… Our greatest hope rests upon two mighty symbols, the Cross and the Flag.”
How conservatives defended political tests against Communism, especially as potential Reds took the Fifth: “Would a bank president hire as a cashier a man who refused to answer questions concerning theft and his acquaintance with robbers?” Or the American Bar Association journal publishing the following:
“It seems obvious enough ... that the witness who refuses to state whether or not he is a member of the Communist Party is either a Communist or a perjurer. If, as he asserts under oath, the answer would actually incriminate him, he must be a Communist. If he is not a Communist, the answer would not incriminate him, and he has perjured himself.”
And what if markets do not celebrate the individual, but our relationships?
“Reared in a traditionalist Protestant home, [Wilhelm] Röpke also emphasized the centrality to a market economy of the concept of ‘free will,’ which lent a deep moral foundation to the concept of ‘market choice.’ It was the freedom to make choices, including choices about what to do with one’s property and earnings, that gave man the freedom to be truly human, lending dignity to man in his engagement with others. Far from being hyper-individualistic, Röpke argued, free market dynamics were interactive and relational. To the extent that government, with its laws and bureaucratic oversight, constrained an individual’s choices - including an individual’s choices involving the extension of charity to the less fortunate - it was complicit, in a moral sense, in circumscribing an individual’s full humanity. Man, Röpke recognized, was far from perfect. But to the extent that government sought to compensate for and correct his imperfections, it would, in the end, end up crushing not only his economic but his moral potential.”
What these voices share is a conservatism that knew what it opposed - statism, communism, moral drift - better than it knew how to articulate constitutional first principles. Recommended for readers who want to understand the inchoate, often contradictory tradition that originalism eventually disciplined.
Figure. “I know this is wrong. But why??”
Click here to acquire Conservatives and the Constitution.