Ken Kersch and the Politics of Constitutional Erasure

For the Balkinization symposium in honor of Ken Kersch

George Thomas 

Ken Kersch was a singular voice in political science. As political science has become less historically grounded and less attentive to ideas, Kersch wrote thick historical books that deepened our understanding of American constitutionalism by illustrating how our present world was constructed over time. In Constructing Civil Liberties he dismantled the progressive narrative of Whiggish constitutional development that framed our understanding of civil liberties as a steady forward march, revealing a history of conflict and discontinuity. In Conservatives and the Constitution, he turned his talents to illuminating the conservative effort to reframe how we think about the Constitution in the middle years of the twentieth century when progressive liberalism was triumphant. Kersch’s rich and detailed histories offer a capacious take on American constitutionalism and bristle with imagination—the New Deal as the end of History?—while dismantling conventional pieties. Reading Ken was always educative, but it was also a pleasure, as his voice was unmistakable, as was his occasionally acerbic wit (deployed against sanctimonious progressives and illiberal conservatives alike).

I am sure others will speak more fully to Kersch’s understanding of American constitutional development as a historically rooted—and deeply conflicted—process of constructing constitutional authority. Kersch detailed how political narratives framed and justified our understandings not only of the Constitution, but of America. I want to focus on an overlooked facet of Kersch’s understanding of constitutional development—that is, the concept of “constitutional erasure.” In selecting and picking what aspects of American history are an essential part of how we see and explain ourselves, political and constitutional narratives also leave out, or cast aside, part of the story. Kersch’s point about constitutional erasure is not simply that we determine that some history is “usable” and other parts of our history are discredited and deemed illegitimate. Rather, Kersch argued that constitutional erasures obscure the past, writing out actual constitutional conflicts and events in constructing new narratives and understandings. A constitutional erasure entails a narrative that “erases” the constitutional conflict at issue. Constitutional erasures are an important feature of political development: Successful efforts to construct political authority require delegitimizing past understandings, which can lead political actors to rewrite history to accord with their ideas by erasing the reality of past constitutional disputes.

I found Kersch’s idea especially illuminating in thinking about the famed Dartmouth College case. Conventionally speaking, Dartmouth College’s seminal importance lies in the version of political economy it helped secure and foster: setting the foundation for the private corporation, the recognition of vested property rights, and an expansive understanding of the contracts clause—all of which set the stage for America’s commercial development in the nineteenth century. Yet it is too often forgotten that the very nature of Dartmouth College—whether, in fact, it was a private or public institution—was the central question in a larger constitutional struggle. An essential feature of this constitutional struggle regarded the relationship between church and state in the creation of the American Republic.

To categorize Dartmouth as a “private” institution, as the Court did, erases an important moment of American constitutional development. The distinction between “public” and “private” educational institutions does not accurately capture the American colleges in existence in the late eighteenth and early nineteenth centuries. On the contrary, the majority of such educational institutions are best characterized as “church–state” schools forged in an era when the church and state were not separated. Created under a prior political order, church–state colleges such as Dartmouth provided sectarian education, favored their sect over others, and often had an educational monopoly in their respective states. These features put such colleges at odds with emerging ideas about church and state in the American revolution and creation of the Constitution.

Dartmouth College was part of a wider constitutional debate that included struggles over who controlled educational institutions—such as Harvard, Yale, and William & Mary—forged in a previous constitutional order. Situating Dartmouth College as a constitutional erasure in Kersch’s terms opens a window onto this larger constitutional struggle and captures an important site of constitutional development. This constitutional conflict laid the foundation for private educational institutions as we now apprehend them. Yet we should understand that the actual constitutional struggle reveals that educational institutions such as Dartmouth were not so easily categorized as “private,” as the “public” dimensions of these colleges were pervasive. How to think of the church–state college in a new constitutional order, with quite different commitments, poses a story about clashing ideas and what changes were necessary to establish and maintain a new constitutional system.

For leading political actors such as Thomas Jefferson and James Madison, reworking the relationship between civil government and established churches and the ideas behind this relationship, including the link between the civil state and sectarian colleges, was an essential constitutional development. These political actors found existing educational institutions problematic precisely because of their ideas about political and theological authority. Figure like Thomas Jefferson were joined by religious leaders like Isaac Backus as they sought to reshape educational institutions to align with their understandings of legitimate political authority. Institutions like Dartmouth were at once public institutions that were also deeply sectarian institutions as they were forged in a period when the civic and sectarian were intermingled. In the language of APD (which Kersch could be a bit too fond of), these institutions were caught between “multiple orders” with regard to “church” and “state.”

For figures such as Jefferson and Backus, the new constitutionalism rendered the intimate connection between the state and the sectarian college deeply problematic. Constitutional development, accordingly, required changes in the institutional relationship between sectarian colleges and the state. Political figures from this period such as William Plumer, the governor of New Hampshire, and Daniel Webster, a Senator from Massachusetts and graduate of Dartmouth, were engaged in a constitutional struggle to reconstruct institutions that clashed—or “intercurred” in the idiom of APD—with the new political order. The Jeffersonian Plumer insisted that Dartmouth was a public university and therefore must be refashioned as a non-sectarian institution. Webster insisted it was a private sectarian institution beyond the reach of the state. Against this conflicted historical backdrop, the Court’s opinion in Dartmouth College denied any real conflict. This is especially true of Justice Jospeh Story’s concurring opinion, which rewrote history so that the public and civic aspects of these institutions were dissolved. Story ignored the constitutional disharmony between a secular state and a sectarian state college to cast the college as a “private” corporation. Story’s opinion in Dartmouth College and in a lesser-known case about Bowdoin College in 1833 embody Kersch’s concept of a constitutional erasure. Story engaged in a similar rewriting of history in his Commentaries on the Constitution of the United States, published the same year as his Bowdoin College opinion, that read Lockean social contract theory out of the constitutional narrative and situated Christianity as an essential feature of American constitutionalism.

Constitutional erasures are an important feature of political development, as efforts to construct political authority require delegitimizing past understandings, leading political actors to rewrite history to justify their ideas. In Kersch’s terms, constitutions are more than institutional arrangements that establish governance: Constitutions seek to shape political culture and civil society. They are efforts to bring a polity to life by shaping the beliefs and understandings of the political actors who inhabit the constitutional world. Bringing a constitution to life necessarily requires constructing certain understandings of political authority—the division between church and state, for example—that frame how actors within the constitutional universe apprehend political life.

When it comes to the complex relations between church and state, we may be witnessing a contemporary effort to reorder our understandings. In several recent cases, the Court has begun to insist not only that the Establishment Clause allows states to directly fund religious institutions, but also that the Free Exercise Clause commands it. Such arguments push beyond any recent understanding of either the Establishment Clause or the Free Exercise Clause. Indeed, in the very recent past, under the historical jurisprudence of Chief Justice Rehnquist, the Court held that if the state chose to fund sectarian programs it could do so in a non-preferential manner. This line of jurisprudential thought, also advocated by originalists like Justice Antonin Scalia, never held that the states must fund religious institutions. Not only was a funding case like Zelman v. Simmons-Harris treated as an Establishment Clause case, but questions of free exercise were entirely unproblematic. Yet beginning in Espinoza v. Montana Department of Revenue in 2020, the Court skipped over questions of establishment and found a free exercise violation. In this case, Montana provided tax credits for attending a private school but prohibited such credits for private religious institutions because Montana’s state constitution prohibited direct or indirect payments that aid religious institutions, including private religious schools.

The Court, however, argued that this amounted to religious discrimination in violation of free exercise rights. Extraordinarily, a Court that purports to ground its decision in history and tradition, waved away a provision of Montana’s state constitution that had been in existence since 1889 when it formally entered the Union. Similar constitutional provisions are found in over three-quarters of state constitutions, dating from the late nineteenth and early twentieth centuries. And yet the Court swept these 100 plus-year-old provisions away “in favor of a new theory of free exercise,” as Justice Sonia Sotomayor noted. In contrast, Justice Clarence Thomas casually referred to the “separationist” views embraced by these state constitutions as driven by hostility toward Catholics. This anti-Catholic narrative, which has led to the cavalier dismissal of these state constitutional provisions, as Kersch might wryly note, is only part of a complex and conflicted story.

Often dubbed little Blaine Amendments, after Congressman James G. Blaine who proposed a federal constitutional amendment that would have prohibited federal funding of sectarian institutions, these state constitutional provisions traced their way back to separationist arguments articulated by Jefferson and Madison. Some of these constitutional provisions reflected longstanding practice in the states that predated anti-Catholic attitudes. But, certainly, anti-Catholic animus, especially the fear that Catholics could not be good Americans, was a feature of this conflict. So, too, was an effort to engrain a vague Protestantism into the public schools. Yet while the anti-Catholic dimensions of this conflict have become part of the conventional narrative, the anti-constitutional—and, hence, possibly anti-American—dimensions of Catholic teachings from the period have been submerged. In the late nineteenth century, formal Catholic teaching was deeply hostile to the idea of separating church and state, as well as to the idea of religious liberty as an individual right. Numerous papal encyclicals from the era rejected civil authority as grounded in popular sovereignty, labeled the idea that the church ought to be separated from the state as a falsehood, and held that “error,” as in other religions, had no rights. These papal encyclicals rejected foundational elements of American constitutionalism. Indeed, Pope Leo XIII went so far as to worry about “Americanism“ in the Catholic Church.

Such thinking persisted well into the middle years of the twentieth century. As Kersch put it in Conservatives and the Constitution, “Conventional wisdom holds that it was only anti-Catholic bigots who doubted the compatibility or Roman Catholicism with Americanism. But in the postwar United States, a significant number of far right-wing Catholics … entertained the very same doubts” (328). This thinking has returned with a vengeance in post-liberal Catholic circles. Let me quickly add that various Protestant sects once too rejected the separation of church and state as well as liberty of conscience, insisting that religious orthodoxy could be enforced by state power. These struggles were also at the heart of Dartmouth College.

The point, in Kersch terms, is that church-state jurisprudence is being reconstructed in a manner that repudiates separationist understandings as harmful to free exercise. The actual history around these state constitutional provisions is being erased by the Supreme Court to fit a narrative that downplays separationist understandings of the Establishment Clause in order to pave the way for an understanding of free exercise that corresponds with conservative notions that traditional Christianity is under siege. We are once again witnessing profound conflicts over church and state in the American constitutional order. I wish Ken were here to write about this constitutional development. 

George Thomas is the Burnet C. Wohlford Professor of American Political Institutions at Claremont McKenna College. He can be reached at george.thomas@claremontmckenna.edu.