James E. Fleming (Boston University – School of Law) & Linda C. McClain (Boston University – School of Law) have posted Five Lessons from Ken Kersch’s Conservatives and the Constitution for the Present Moment on SSRN. Here is the abstract:
Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” The late Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. In this essay (part of a symposium honoring Kersch’s work), we sketch five of those lessons. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and totalitarianism. Kersch’s book highlights that a recurring refrain by conservative thought-makers and politicians during their “wilderness years,” or postwar liberalism’s “heyday” between 1954 and 1980, was that conservatism’s enemies—including not only “godless communism,” moral relativism, and secularism, but also liberalism, liberal “living” constitutionalism, and a Supreme Court not guided by natural law or Christianity—were leading the U.S. toward tyranny, authoritarianism, and totalitarianism. Kersch meticulously explicates how the different narratives within the modern conservative movement shared a motivating and unifying narrative of the call for constitutional restoration, to be ushered in when Republicans returned to political power and control of the judiciary.
HIghly recommended.