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Ecumenicalism Through Constitutionalism: the Discursive Development of Constitutional Conservatism in National Review, 1955–1980

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Ecumenicalism Through Constitutionalism: the Discursive Development of Constitutional Conservatism in National Review, 1955–1980 Studies in American Political Development, page 1 of 31, 2011. ISSN 0898-588X/11 doi:10.1017/S0898588X10000106 # Cambridge University Press 2011 Ecumenicalism Through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955–1980 Ken I. Kersch, Boston College Contemporary conservatism places an affinity for, fidelity to, and defense of the U.S. Constitution at the center of its electoral, institutional, and movement politics. Through a survey of popular constitutional discourse in postwar conservatism’s premiere magazine, National Review between 1955 and 1980—presented in the context of the development of (conservative) political thought and the institutional infrastructure for idea generation and propagation—I argue that that defense began to assume an ecumenically populist, antielitist, and antijudicial form only beginning in the mid-1950s, and a shared commitment to “originalism” only in the late 1970s. From the 1950s through the late 1970s, conservative constitutional argument was centered not on the judiciary, but rather on the (often divisive) constitutionalism of Congress and the executive, and on divergent views concerning structuralist versus moralist constitutional understandings. Over time, however, through dialogic engagement taking place over and through unfolding political events, the movement’s diverse intellectual strands reframed and reinforced their relationship by focusing less on their differences and more on an ecumenically shared populist critique of judicial power emphasizing a virtuous demos arrayed against an ideologically driven, antidemocratic, law-wielding elite. During this formative period, besides advocating a particular approach to textual interpretation, constitutional discourse played a critical role in fashioning movement symbols and signifiers, forming hopes and apprehensions, defining threats and reassurances, marking friends and enemies, stimulating feelings of belonging and alienation, fidelity and betrayal, and evoking both rational logics and intense emotions—all of which motivate and inform the heavily constitutionalized politics of American conservatism today. This is a magazine-reading country.1 INTRODUCTION We have long needed a good conservative It is apparent to observers of contemporary politics magazine.... This is not it.... because it is neither good nor conservative.2 that American conservatives emphasize their affinity — Dwight Macdonald for, fidelity to, and defense of the U.S. Constitution, and distinguish Constitution-defending ordinary people like themselves from Constitution-defying The author benefited from discussions of this paper at the elitist liberals and progressives. While conservatives Conference on the Constitution and American Political Develop- ment at Harvard Law School (October 2008), the “Schmoozes” hew faithfully to the Constitution as the Founders on the Conservative Legal Era (December 2009) and Invisible Con- originally designed and understood it, liberals and stitutions (December 2010) sponsored by Princeton’s Program in progressives (and the judicial elite ruling under Law and Public Affairs, the Boston College Law School Legal their sway) have unmoored the polity, weighing the History Roundtable (January 2009), the Elizabeth Battelle Clark Legal History Series at the Boston University Law School (March 2008), the Faculty Workshop at University of Nevada – Las Vegas’s Boyd School of Law (September 2008), the Joint Political political science graduate students, provided additional research Science/History/Law Faculty Workshop at Brigham Young Univer- support. sity (September 2009), and the American Political Science Associ- 1. Dwight Macdonald, “Masscult and Midcult II,” Partisan ation’s Annual Meeting (September 2009). Dick Fallon, Mark Review (Fall 1960): 589–631, 618. Tushnet, David Tanenhaus, Gerry Leonard, Kris Collins, Mary 2. Dwight Macdonald, “Scrambled Eggheads on the Right,” Bilder, Ralph Hancock, Chris Karpowitz, Julie Novkov, Paul Commentary (April 1956): 367–73, 368–69 (“Culturally, a conserva- Frymer, Keith Whittington, Brad Wilson, and two anonymous tive is someone like Irving Babbitt or Paul Elmer More, not always readers provided detailed comments and suggestions. Dan Car- the liveliest company ... but a respecter and defender of tra- penter, Elisabeth Clemens, and Scott James were extraordinarily dition .... Politically, a conservative is someone like ... the late helpful (and patient) in prodding me to clarify and frame my argu- John Marshall Harlan ... whose respect for the Constitution was ment. Matt Karambelas, BC’10, provided extensive research assist- such that he insisted on interpreting the Fourteenth Amendment ance. Mike Coutu, BC’10, and Heitor Gouvea and David Levy, BC according to the clear intent of the Congress that passed it.”). 1 2 KEN I. KERSCH anchor dropped by the Founders in favor of relativist movement conservatism: libertarianism, traditional- experimentation and the reading of ever-shifting and ism, and neoconservatism. I describe the founding often dangerous modern notions of progress into the of NR as a venue for ecumenical discussion and constitutional text. debate among a diverse cross-section of conservatives This article argues that, while the defense of the and as an instrument of movement evangelism. I also Constitution was important for conservatives long describe the mobilization of resources and the con- before the mid-twentieth century, that defense struction of an institutionalized support structure to began to assume an ecumenically populist, antielitist, back the incubation and dissemination of conserva- and antijudicial form only beginning in the tive political and constitutional ideas and forge politi- mid-1950s. That defense, moreover, was underwritten cal and ideational networks. I then provide an by a shared commitment to interpretive “originalism” empirical, interpretive account of the development only beginning in the late 1970s. The constitutional- of constitutional discourse in NR, emphasizing its ism purveyed by today’s conservatives is thus best con- role in fostering ecumenicalism through constitution- strued as a developmental phenomenon—as the alism. I show how the discourse shifted toward a focus dynamic product of the interaction of ideas with on the judiciary and how conservatives began to take politics across time. up a “reactive originalism”—a set of sporadic and Through a survey of “popular” constitutional dis- nonfundamentalist appeals to the principles of the course in postwar conservatism’s premiere magazine, Founders and a halting, conflicted critique of judicial National Review (NR), between its 1955 founding power. In case studies tracking the trajectory of dis- through Ronald Reagan’s 1980 election, I chart the course concerning civil rights and abortion rights, development of conservative constitutional argument I show the emergence of a more robust critique of over the course of the modern movement’s ascen- judicial power characterizing judges as handmaidens dency. This survey suggests that, from the 1950s of the cultural and intellectual elite. Even at this through the late 1970s, conservative constitutional point, in the mid to late 1970s, constitutional debate argument was centered not on the judiciary, but in NR swam in broader currents, emphasizing not rather on the constitutionalism of Congress and the simply judicial excess, but the broader nature of the executive, and on a debate concerning the respective American political experiment. Only with the publi- places of structuralist versus moralist constitutional cation of Raoul Berger’s Government by Judiciary theories. This debate often pitted different strands (1977) do we see the elements of the contemporary of the movement against each other, sometimes bit- conservative constitutionalist ideology cohere, with a terly. Over time, however, through dialogue taking focus on activist, elitist judges imposing their place over and through unfolding political events— (amoral) will on the polity, and simultaneous calls including, pivotally, the Supreme Court’s decisions for a proactive originalism holding that fidelity to in Brown v. Board of Education (1954) and Roe v. the Constitution’s original meaning is the only legiti- Wade (1973)—libertarians, traditionalists, and neo- mate approach to constitutional interpretation.4 conservatives reframed and reinforced their relation- ship by focusing less on their abstract philosophical differences and more on an ecumenically shared CONSTITUTING IDENTITY DISCURSIVELY populist critique of judicial power emphasizing a vir- tuous demos arrayed against an ideologically driven, In his study of the contemporary conservative move- antidemocratic, law-wielding elite, in the process ment’s “Wednesday Meetings” in Washington hosted forging a potent communal political identity.3 by conservative activist Grover Norquist, Thomas I begin with a general discussion of the role that Medvetz emphasizes the movement’s “peculiar com- constitutional discourse—argument, the interpret- bination of internal heterogeneity and cohesion” and ation of events, and the construction of symbols— the way in which such gatherings serve as sites for can play within social movement politics. Next, I outline the diverse intellectual and dispositional 4. I do not seek here to “prove” that the postwar conservative starting points of three important strands of postwar movement shifted from either a non- or a less-constitutionalist to a Constitution-focused paradigm. Because
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