Constructing Civil Liberties: Discontinuities in the Development of American Constituional Law.

Vol. 15 No.3 (March 2005), pp.181-186

CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW, by Ken I. Kersch. New York: Cambridge University Press, 2004. 400pp. Cloth, $75.00 / £40.00. ISBN: 0521811783. Paper. $29.99 / £18.99. ISBN: 0521010551.

Reviewed by George Thomas, Department of Political Science, Williams College.

The notion of a “living constitution” that has evolved in a progressive direction, culminating in the great Warren Court civil liberties and rights decisions, is a familiar one. This narrative largely informs our understanding of constitutional law in the twentieth century. In the early years of the century, Progressives struggled with a reactionary Court wed to atavistic notions of a formal constitution and “economic rights.” This struggle culminated in the New Deal, which reordered our constitutional commitments by solidifying expansive national power while simultaneously placing the Supreme Court in the role of protecting “civil liberties.” Thus the New Deal frames American constitutional development in the twentieth century. Notice, too, that the very language of “development” is freighted, insinuating a sort of constitutional evolution that moves in a linear manner toward something higher. Enter, here, our current understanding of “civil liberties.” Remarkably, even as revisionist scholarship has offered us a more rounded portrait of early twentieth century constitutionalism and the New Deal revolution, we continue to view post-1937 debates about civil liberties through this New Deal telling of history.

Ken Kersch’s CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW brilliantly dismantles this facile view of American constitutional development and its telos of “modern civil liberties.” This Whiggish narrative, as Kersch dubs it, takes the end result as given—a simple “triumph of principle” (p.25). In doing so, it ignores the actual history of constructing a New Constitutional Nation, which was central to twentieth century state building, and required the reconstruction of constitutional liberty. It is this history that Kersch seeks to recover, giving us a richly textured genealogy of current constitutional morals (although this suggests the book might have been more aptly titled, RECONSTRUCTING CIVIL LIBERTIES).

Most strikingly, this Whiggish narrative of barrier, breakthrough, and apotheosis ignores the agonistic struggle over liberty that was at the heart of the state-building process. This is most obvious insofar as the narrative reads putative “economic” liberties out of what constitutes “civil liberties.” Thus rights and liberties, long protected within the terms of traditional American constitutionalism, were, in accord with imperatives of state building, said to be no longer rights. In this manner, the Whiggish narrative involves “erasures” that gloss over the agonistic and conflicted struggle between “liberties and liberties” and “rights and rights” that [*182] were central to forging the institutions of the New American State. Kersch illuminates the politics of this struggle by turning to three “sites” of constitutional development: criminal process and privacy rights, workplace and labor rights, and education rights.

In turning to these sites, Kersch offers extraordinarily detailed evidence of the agonistic political struggles involved, which turned on hard choices between rights, or, often, on struggles against constitutional rights to make way for the New American State. These historical studies are fascinating in their own right, but serve a more important purpose in excavating the conflicted process of twentieth century American constitutional development. Recovering these “erasures” jettisons the traditional narrative, revealing that those involved in the state-building project were often explicit in their pro-statist and anti-rights arguments. But this is not Kersch’s central aim. As he says, “I do not so much reject the Whig narrative of constitutional development as invite it in as an endogenous part of an affirmative, historically anchored theory of constitution development that takes seriously the ideological process involving the construction of constitutional legitimacy” (p.11). In this, Kersch mirrors recent scholarship in American Political Development, which moves away from the notion that development is a linear process that moves toward a constitutional end. Rather, Kersch seeks to show how “development” itself is, at root, about the creation and recreation of constitutional authority. Attempts to justify and sustain a constitutional order necessarily entail momentous political struggles over ideas.

Yet, as Kersch illustrates, the trajectory of these constitutional conflicts has been flattened, even audaciously reimagined, to accord with the progressive telling of history. Kersch illustrates, for example, how the early “privacy” decisions were rendered against the state-building project. Indeed, proponents of expanding national administrative capacity like Justice Louis Brandeis actively sought to bring the private to public light. In Kersch’s words, the reach of the new administrative state required making the once private “legible” by way of an all-seeing state. And Brandeis, like fellow travelers Herbert Croly and Walter Lippman, was unapologetic about expansive state power. It was simply the price of progress. As Croly remarked, prefiguring Brandeis’ famous insistence upon the purifying exposure of light: any part of the system “which shuns the light . . . is necessarily suspect” (p.55). This project of legibility, however, ran afoul of traditional constitutional understandings as expounded by justices like Stephen Field and Joseph Bradley in BOYD v. UNITED STATES (1886). This traditional understanding was later championed by the likes of Justices James Clark McReynolds and Pierce Butler who were active opponents of the state-building project. Thus the “Old” Court protected the right to be secure in one’s person and private papers against a “seeing” state. Tellingly, in protecting a right to privacy against state intrusion, the Court did not distinguish between “economic” privacy and “personal” privacy. This distinction was constructed later to justify the protection of some “civil liberties,” willfully reading others out of the tradition.

Thus, for example, the contemporary right to privacy is often seamlessly [*183] traced back to the great progressive Brandeis in his now famous HARVARD LAW REVIEW article, “The Right to Privacy.” Yet Brandeis was not, in fact, much of champion of privacy as the term is now used. And the privacy protecting decisions of Field and Bradley, and of McReynolds and Butler, are altered or erased from the conventional narrative. Notably, again, the very distinction between “personal” and “economic” rights that has become central to current civil liberties was not actually used by progressives like Croly, Lippman, and Brandeis. Indeed, Kersch argues, Brandeis’ famous article on privacy hardly recognized a constitutional right to keep the government at bay. On the contrary, the article justified individual action against the press for printing a private person’s name in the paper. Today, such an understanding would surely by at odds with the “freedom of the press,” but it was hardly inconsistent with Brandeis’ “tireless advocacy of governmental intrusion.” It was, in fact, justices like McReynolds and Butler—later deemed anti-civil libertarian reactionaries—who drew upon the arguments of Field and Bradley to pose limits to national power in a civil libertarian vein. Thus, “narrowing the scope of privacy rights was a progressive and not a conservative project” (p.112). But such inconvenient dilemmas are expunged in favor of Whiggish constitutional history.

In his second site of development, Kersch illustrates how this is particularly evident in the tension between labor rights and civil rights. Refashioned in a Whiggish guise, these rights easily move in stride. In fact, however, the struggle for “labor rights” often came at the expense of individual laborers, and often at the expense of black workers in particular. Reformist campaigns concerning “the labor problem” were frequently framed in collective terms and spoke of group and class rights, not individual rights. This vision came to be institutionalized in the Norris-LaGuardia Act and the National Labor Relations Act which “marked the defeat of important claims of individual rights.” The consequences of this move, Kersch argues, have been underappreciated. Organized labor was more often than not hostile to African Americas. Labor unions were the first large scale organizations to exclude blacks in the post bellum period—prohibiting admission of blacks to unions and deliberately excluding them from the workplace. Thus, prior to the 1960s, a step forward for “labor rights” usually meant a step back for black “civil rights.” Against this backdrop, it is not surprising that African Americans were staunch supporters of “dignity of labor constitutionalism.” But workers who supported such rights were dismissed out of hand by Croly, whom Kersch calls the “founder of modern constitutional theory,” for having “gone astray” based on “apathy, unintelligence, or incompetence.” Indeed, the “non-union industrial laborer should, in the interest of a genuinely democratic organization of labor be rejected; and he should be rejected as emphatically . . . as the gardener rejects weeds in his garden for the benefit of fruit-and flower-bearing plants” (p.186).

This is vividly illustrated in the case of Paul Senn, the owner of a small tile laying business who, when circumstances permitted, hired outside workers. The Tile Layers Union of Milwaukee, however, demanded that he [*184] unionize his “work force.” He was sympathetic, but under Union rules he would have had to quit working himself (among other things). Sympathetic to the union, Senn asked for an exemption for his own labor, while agreeing to hire only Union workers and follow Union regulations with regard to hours and labor. The union refused. It then proceeded to picket and harass Senn, calling him “unfair” to labor in “a sustained campaign to destroy his business” (p.181). Under traditional rights to work, Kersch argues, Senn would have been protected. But the dispute was treated, under the emerging order of group rights, as a “labor dispute.” Thus Justice Brandeis airily dismissed Senn’s constitutional claims. Individual rights to work, and choices about work, mattered little against the collective right of the labor union “to enhance their opportunity to acquire work for themselves and those they represent” (p.183). This “ideological reconstruction gave constitutional sanction to a new constitutionalism of groups and aggregates rather than a constitutionalism of individuals” (p.187).

This view is perhaps most apparent in the forgotten debates over education rights, which is Kersch’s third site of development. Here the progressive state-building project sought to construct truly “national” citizens, explicitly viewing children as creatures of the state. This effort involved compulsory school laws, English only laws, and outlawing private schools in an effort at “Americanization.” This required dissolving attachments to family and religion, which were seen as obstacles to social progress and what Kersch calls the New Constitutional Nation. John Dewey, for example, praised Soviet education for directly taking on the “bourgeois family,” which was a “breeder of nonsocial interests” (p.278). State and national building reformers sought to overcome such parochial attachments. As a leading education progressive and professor at Stanford gleefully put it, “each year the child is coming to belong more to the state and less to the parent” (p.251). Kersch’s exacting research is replete with such examples, drawing on long forgotten, or “erased,” political ideas. But he also shows how the unacknowledged remnants of such thinking are manifest in contemporary liberal and constitutional thought. Here the work of Rawlsian political theorist Stephen Macedo is apropos. In DIVERSITY AND DISTRUST (2000) Macedo calls for a transformative liberalism, which would require the state to reorder the private life of (some) citizens in order to make them proper “constitutional citizens” fit for “constitutional” government. This parallels, all too eerily, the sort of elite ideological reconstruction of citizens that was central to nation building. What’s more, this audacious attempt at transforming individuals into good citizens is refashioned in constitutionalist clothing (Macedo, 2000 and 2001). The result is a sort of arm chair or academic constitutionalism that washes away inconvenient private attachments in favor of abstract moral theorizing fashioned from on high.

This spirit continues apace, as evidenced by Kersch’s provocative précis on “global constitutionalism” that concludes CONSTRUCTING CIVIL LIBERTIES. Elite intellectuals have begun the moral call for a transnational constitutional order with a global [*185] conversation amongst judges that will bring global constitutional “norms” home, overcoming atavistic notions of sovereignty and “domestic” constitutions (or at least the U.S. Constitution). This project exquisitely captures the “progressive” imperative, ducking the hard choices involved and ignoring inconvenient facts in the spirit of “setting up new global deliberative forums that are free of the sorts of people who have caused [these theorists] so much trouble at home.” And in the confines of these forums, a “consensus among ‘reasonable people,’ concerning the requirements of ‘global,’ ‘cosmopolitan,’ or ‘universal’ justice is now possible” (p.346 and Macedo 2001a). For, just as Herbert Croly deemed the worker who would opt out of a labor union “unintelligent” or “incompetent,” academic theorists deem “unreasonable” those who do not readily share their presumptions (e.g., Macedo 2000; 2001a; 2001b).

Kersch deserves considerable credit for his immense scholarly undertaking of excavating the agonistic and often tragic struggle that has been at the heart of American constitutional development in the twentieth century. But a deep question remains: what does development mean, shorn of its telos? Abandoning the Marxist foundations of “development” as an inexorable process of state building is an important and worthwhile move. So, too, is the insistence that ideas matter profoundly to constitutional development. But is development still a worthwhile term? Kersch thinks of it as the construction of constitutional authority. In a similar vein, Stephen Skowronek and Karen Orren, in THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT, define it as “a durable shift in governing authority” (p.123). This involves the creation and recreation of institutional legitimacy that exists within multiple institutional orders, which themselves move on different trajectories in a continual process of creation and recreation. Terms pile upon one another. The result is “intercurrence” and “layering” (Skowronek and Orren 2004, pp.116, 118, 128), so that “in the fullness of time, development is as rife with abrasions, abutments, agonisms, drift, and tensions as any other area of political life” (p.11). This can get dizzying. It is not clear that such complexity and academic jargon are necessary. Nor is it clear that they help us understand why “developmental” approaches are a unique and significant way to study politics. Perhaps “development” itself is a vestige of earlier usage, the institutional debris of past scholarship. Is it now simply a jargon-laden “social scientific” way of saying that context, history, and politics matter?

I am deeply sympathetic to Kersch’s view of development and think there is something far more interesting going on here. But I do think a challenge for scholars of American political and constitutional development is to explain what this is, shorn not just of telos but of distracting academic jargon as well. (Thomas Keck’s THE MOST ACTIVIST SUPREME COURT IN HISTORY and Kevin McMahon’s RECONSIDERING ROOSEVELT ON RACE are both excellent books that are deeply informed by APD while avoiding such jargon.) But let me be clear. Kersch has written one of the most ambitious books in memory. And I suspect that he [*186] indulges such jargon to connect with an audience and field that indulge it, even while seeking to challenge much of the staid orthodoxy within that field. For that, Kersch might be forgiven for he succeeds so brilliantly.

REFERENCES:

Keck, Thomas. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University of Chicago Press.

Macedo, Stephen. 2001a. “Princeton Principles on Universal Jurisdiction.” Program on Law and Public Affairs, Princeton University.

Macedo, Stephen. 2001b. “Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism” in Sotirios Barber and Robert George, eds., CONSTITUTIONAL POLITICS: ESSAYS ON CONSTITUTION MAKING, MAINTENANCE, AND CHANGE. Princeton: Princeton University Press.

Macedo, Stephen. 2000. DIVERSTIY AND DISTRUST: CIVIC EDUCATION IN A MUTLICULTURAL DEMOCRACY. Cambridge: Harvard University Press.

McMahon, Kevin. 2004. RECONSIDERING ROOSEVELT ON RACE: HOW THE PRESIDENCY PAVED THE ROAD TO BROWN. Chicago: University of Chicago Press.

Orren, Karen and Stephen Skowronek. 2004. THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT. New York: Cambridge University Press.

Warren, Samuel D., and and Louis D. Brandeis. 1890. “The Right to Privacy.” 4 HARVARD LAW REVIEW 193-220.

CASE REFERENCES:

BOYD v. UNITED STATES, 116 US 616 (1886).

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