Beneath the Tip of the Iceberg: The Constitution and Conservative Identity in Changing Times

For the Balkinization symposium in honor of Ken Kersch 

Logan E. Sawyer III 

In 2020, I wrote a highly complimentary review of Ken’s Conservatives and the Constitution.  The book, I argued, was an insightful and novel explanation of perhaps the key issue in the history of post-war conservatism:  how did a loose and potentially fractious association of different viewpoints and interests become a unified and highly coordinated political movement?  It happened through the use of stories, Ken told us, stories about the Constitution, which were intentionally developed by movement intellectuals in a successful effort to build a conservative political identity.  The book was required reading, I thought, for anyone looking to understand the American Right and its relationship to the law and the constitution.  In retrospect, I was not nearly complimentary enough.  Changes in our politics since I wrote that review have made Conservatives and the Constitution one of the surest guides not just to the creation of the New Right than emerged in the 1970s, but also to the ongoing reconstruction of the conservative movement that is happening today.

The book’s ability to both explain the past and help us understand the present undoubtedly resulted from Ken’s intelligence and his careful, seemingly comprehensive reading.  But he brought more to the table than just those strengths.  One key, it seems to me, was his deep respect for the intellectual work of his subjects.  He was unafraid to critique the conservative intellectuals he studied.  He landed tough, but fair blows, especially in the conclusion.  But his disagreement with his subjects on key issues did not distract him from his overriding commitment to understand the construction of a conservative identity durable and broad enough to support a winning political coalition.  To achieve that, he had to avoid the temptation to treat the work of conservative intellectuals as meaningless camouflage for the ‘real’ issues that motivated them, and to do it even at the risk that less careful readers might identify sympathy where Ken sought only insight.

That clear-eyed realism about the role of ideas in building winning political alliances made Conservatives and the Constitution required reading for those seeking to understand the post-war American conservative movement.  It explained how a movement made up of religious social conservatives, foreign policy neoconservatives, neoliberal opponents of the administrative state, and many others overcame their quite serious disagreements to become a cohesive, successful political movement.  That unity was built on stories about the constitution—what it meant, who had abandoned it, and how its original promise might be restored.  And he deftly guided the reader through decades of debate among a kaleidoscopic variety of intellectuals who used such stories to define for conservatives who was the ‘we’ and who was the ‘they.’ There was nothing natural, inevitable, or even easy about that process, he showed.  And it had enormous consequences for American politics.

Ken’s core creative insight was to reverse the conventional narrative of the relationship between the conservative political movement and constitutional law.  The dominant thrust of scholarship at the time was to ask how the conservative legal movement had become such an effective vehicle for carrying into effect the goals of the broader political movement it was seen to largely serve.  This was all outstanding and important work, as Ken recognized.  It illuminated our understanding of how institutions, legal arguments, and litigation campaigns were used so successfully to transform American constitutional law.  But that literature, Ken showed us, addressed only one important part of the relationship between the constitution and post-war conservatism.  The Constitution was not only re-made by the conservative movement, it helped create that movement in the first place.

But Conservatives and the Constitution is not just important for those interested in Reaganite conservatism.  It is also an indispensable guide to contemporary politics.  The first few months of the new Presidential administration brought to light a host of ideas about American society and government that had been hidden from most commentators, even sophisticated ones.  But they would not have surprised Ken.  To focus on originalism, the Federalist Society, and the other professionalized ideas and institutions of the conservative legal moment, he wrote, was to be “transfixed by the iceberg’s tip while overlooking the hulking mass looming below.”  Those ideas and institutions were not, for some conservatives, the ultimate goal.  Instead, they were just the “opening moves in a much larger struggle aimed more broadly at political, institutional, and cultural transformation” (361).  In 2019, that was a surprising assertion.  Today, it seems the only reasonable view.

To be sure, understanding the current contest to re-define what it means to be a conservative must start from a clear-eyed understanding of the movement that came before.  But it is also true that the new conflicts within the remade Republican party have made even some quite recent work on conservatism seem distant from immediate concerns.  The opposite has happened with Conservatives and the Constitution.  Ken’s insightful analysis together with his ability to explain the arguments and perspectives of conservative intellectuals to scholars who share few of their starting assumptions, has made his book the surest the most complete and prescient guide to the disposition of forces in the battle for the future of conservatism.

As a result, were I writing a review of Conservatives and the Constitution today, I would emphasize not just how much it can teach us about the historical creation of a unified conservative movement, but also why all the intellectual work Ken details was necessary.  Ken’s thoughtful reconstruction of the wide variety of conservative thought reveals the long-standing tectonic plates that, while hidden below the surface for decades, have burst into full view and are helping to redefine conservatism.  Catholic post-liberals, West-Coast Straussians, evangelical and fundamentalist Protestants, and others struggle for dominance.  Part of that process is the construction of new alliances, some of which are built around the constitution, some of which are not.  This new conservatism may not end up defining itself through stories about the constitution, as the old did.  But Ken’s work helps explain what is happening.  Even in 2019, he knew a guide was needed.  Liberals, he feared then, were “punching in the dark” (362) as they tried to engage with contemporary conservatism.  They were missing the wellsprings of conservative identity founded in non-lawyerly, non-professional constitutional theorizing.  Today, with attacks on the liberal order coming almost too fast to track, the need for that understanding is more urgent than ever.  And there is no better guide than Ken.  It is a tremendous loss that he is no longer here to show us the way.   

Perhaps the highest praise one can give a scholar is that their work opens the field to new questions that need answers.  Given the richness and importance of Ken’s work, there are many places to productively build on his insights.  As for me, I am captivated by the relationship between what he identified as tip of the iceberg—the ideas and institutions of the professional, lawyerly conservative legal movement—and the hulking mass of sophisticated, but non-professional constitutional theorizing he revealed.  As I continue to write a history of originalism, I wonder if the professional constitutional debates did more than just hide the process of conservative identity-formation from liberals, as Ken argued it did.  I wonder if, in the years following the primary focus of Conservatives and the Constitution, the conservative legal movement’s professionalized constitution also constrained the interest among conservative leaders for the more radical visions that were swirling beneath the surface and that have now overturned the iceberg of conservative self-understanding.    I wish I could reach out to Ken and ask what he thought.  But as I seek my own answers, his insights will continue to light the way. 

Logan Sawyer is the J. Alton Hosch Professor of Law at the University of Georgia School of Law. He can be reached at lesawyer@uga.edu.