Ken Kersch and the Possibility of Inclusive and Diverse Conversation

For the Balkinization symposium in honor of Ken Kersch

Sanford Levinson

Nothing I could write could add to Roger Smith’s wonderful tribute to a truly wonderful person, Ken Kersch.  His work was obviously important, and it would be worth remembering even if he were a lout.  But he wasn’t.  All who encountered him as a person knew that he was special, not only a person of great intelligence, with a willingness and ability to tackle truly important issues, but also a mensch, a person one wanted to have as a friend.  I was privileged to know Ken for quite a few years, and we usually had dinner at least once (which was not enough) during the semesters that I happened to be in Boston.  I last saw him in September.  Neither of knew, of course, that it would be for the last time.  Our conversations were usually casual.  Now I wish I had taken more opportunity to explore interests we had in common and to find out more about where his thinking was taking him. 

            Rogers and other participants in this symposium will address his body of work.  I want to do that indirectly, by picking up one aspect that Rogers adverts to and that increasingly absorbs my own imagination.  My own view is that Ken’s book on conservative constitutional thought is a masterpiece that should certainly be on the bookshelves of (and, more importantly, read by) anyone claiming to be interested in the general subject of American constitutional law.  It exemplifies, incidentally, the importance of “the Constitution outside the courts,” because most of the people he writes about never got close to any federal court, let alone the Supreme Court about which most legal academics unwisely obsess.  Part of the reason, of course, is that the years roughly between 1940-1990 encapsulated what we can only regard, looking backward, as liberal hegemony.  The founding of the Federalist Society was certainly a response to this reality.  Hegemonies operate by both inclusion and exclusion.  “Conservatives” like John Marshall Harlan were certainly welcome.  William Rehnquist was simply regarded as an outlier of little fundamental importance beyond his having one vote out of nine.  But his most important opinions were dissents, as was true of the “early” Antonin Scalia.  What struck me when reading Ken’s book was how many of the people I had barely heard about and certainly had never read seriously.  As Rogers suggests, one important example was Francis Schaeffer, whose book A Christian Manifesto I now have on my desk, almost certainly because of Ken’s book. 

            So I want to spend the rest of my (indirect) tribute to Ken by addressing why Schaeffer is so important, not only as a particular thinker, but, far more importantly, with regard to the possibility of genuine discourse between secularists like myself and at least some of “the religious.”  So consider only the Preface to his self-consciously titled “manifesto,” which concerns “Christ’s total Lordship in all of life.”  Acceptance of such “total Lordship” necessarily leads to “Christian resistance” of the “judicial and governmental authoritarian elite in the United States” today.

At the very least, this reopens the question treated by Thomas Hobbes particularly in Books 3 and 4 of Leviathan.  I now regard as one of the most amazing aspects of my own graduate education at Harvard in the 1960s, where every Government Department graduate student was required to display at least minimum proficiency in “political theory,” was that Books 3 and 4 were basically ignored.  It was enough to read Books 1 and 2, which are basically the origins of the social contract as a manifestation of popular sovereignty, as well as explaining why the multitude of the people would voluntarily choose to place all political power in the hands of a monarch in order to provide the security and stability for which they yearn.  Books 3 and 4, on the other hand, explained why there could be only one sovereign—in this case “the people,” even if they would immediately go to “sleep” following their authorization of Leviathan; this meant that Divine sovereignty, including the “divine right of kings” chosen, as Romans 13:1 assured believers, by God to govern was no longer acceptable.  One might accept religion in its place, which is under the firm control of the Monarch authorized by the people, as, arguably, was true with Henry VIII and, more certainly, after the Glorious Revolution of 1688 post-Hobbes.  But, most certainly, there could be no sovereignty at all in the hands of the Pope in Rome to whom the keys to the Kingdom had ostensibly been given by Jesus himself. 

So why weren’t these Books assigned in the 1960s, when I was in graduate school?  The answer, I suspect, is that it was simply assumed that “enlightened modernism” now ruled the roost, that the kinds of religious divisions (and wars) that obsessed Hobbes were no longer part of our “consensus-driven” world and could therefore simply be ignored.  Even the Catholic Church, through Pope John XXIII and Vatican II, seemed eager to recognize, in the words of the later Nobelist, “the times, they were a-changin’” and that all changes pointed toward forms of liberalism.

That is obviously no longer the case.  Francis Schaeffer is indeed someone whose name ought to be known to anyone thinking of the American constitutional order.  Literally millions of our fellow Americans accept some version of the “lordship of Christ.”  And similar millions of people elsewhere view themselves as under the domain of God, Allah, or the gods of what we now refer to as the “non-Abrahamic” religions.  Moreover, speaking only of the United States, it’s also the case that millions of our fellow Americans believe that this “lordship” is expressed through forms of direct intervention in history.  It’s not simply a question of figuring out what God might want us to do and doing it; it’s also the case that God will manifest Divine wrath at the failure to follow instruction.  That, after all, is the message of Prophetic Judaism, and it is surely picked up in various aspects of the Christianity that purportedly superseded the initial Divine revelation.   

            So consider in this context a statement by Alabama Chief Justice Tom Parker when ruling, in 2024, that frozen embryos are “persons” entitled to legal protection.  He might have simply joined in the majority opinion that was based on the raw text of the Alabama Constitution, as amended.  But he wrote his own concurrence. “When judges,” he wrote, “don't rule in the fear of the Lord, everything's falling apart. The whole world is coming unglued.”  It is clear that he thoroughly approved of the Court’s decision that frozen embryos were “children,” which enabled the “parents” of the embryos, which had been accidentally destroyed by a fertilization clinic, to sue under a state “wrongful death” statute that applied to more mundane losses of children by parents.  Thus he also wrote “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God.”  This illustrates two all-important aspects of what might be meant by according genuine supremacy to God-as-divine-ruler. 

            The first is that Divine command takes precedence over any command of earthlings.  The central problem, even assuming one believes in God, is how exactly one knows what God commands, but we can put that to one side in this short essay.  The second, as already suggested, is that God will get angry at disobedience and display “wrath.”  This is not the Deist view of a “watchmaker” God who creates the world, establishes the laws of physics and other natural sciences, perhaps even inscribes the teachings of “natural law” in our hearts minds, and then departs for other worlds to create.  This is a Calvinist view of an all powerful God more than willing to send us to eternal damnation—or simply create an “unglued” world where “everything’s falling apart”—should we disobey.  (Actually, since Calvinism doesn’t recognize “good works” as a guaranteed way to avoid eternal damnation, things are even more frightening in God’s domain, but that, too, is a subject for further exploration.)

            So, returning to Ken for a moment:  One of his remarkable features, as testified by all who knew him, was his capacity not only for friendship, but also for crossing party lines, as it were.  He could respectfully engage, most certainly in his writings but also in person, with people of all sorts of views.  We should all try to emulate him in this capacity. 

            That may not be so easy, though, and not only because most of us may lack Ken’s particular character and gifts.  In my own case, I confess that I simply don’t know what to say to people like Chief Justice Parker.  Or consider Pat Robertson, described in his New York Times obituary as having suggested

for example, that Americans’ sinfulness had brought on the Sept. 11, 2001, terrorist attacks against the United States, and that the earthquake that devastated Haiti in 2010 was divine retribution for a promise that Haitians had made to serve the Devil in return for his help in securing the country’s independence from France in             1804….And he condemned homosexuality as “an abomination,” linking it at one point it to the rise of Hitler and declaring that it provokes God’s wrath, as manifested in natural disasters and even the death and destruction of 9/11.

For what it’s worth, Robertson was a graduate of the Yale Law School and, therefore, not a certified idiot.  That only underscores the reality that we live in a very large country populated by millions of people with remarkably diverse beliefs and ways of looking at the world.  The challenge, of course, is to figure out how to meld them into some sort of coherent polity that, at the very least, avoids the Hobbesian war of all against all and, even better, creates a sense that one is in fact living in a “more perfect Union” where people do indeed treat one another with mutual respect and perhaps even the affection attached to membership in a common enterprise.

As a secularist, I find it harder and harder to figure out how we can in fact genuinely live together with mutual respect, at least when our views take on genuinely public dimensions and call for the passage (or perhaps repeal) of important public policies that many deem essential to achieving the “general Welfare” or “establishing Justice” that many (correctly, I believe) is what give ultimate meaning to the Constitution.  I simply can’t truly make sense of the panoply of beliefs necessary to support the proposition not only that God has particular views on the merits of IVF, but also that disagreement will incur Divine “wrath” that, if one takes the Hebrew prophets seriously, will extend far beyond the particular individual wrongdoers.  After all, families and children, for many generations, suffered the exile that was presumably attributable to the actions of only a discrete set of miscreants. 

This gulf widens into a chasm when I hear contemporary Evangelical Christians proclaim that Donald Trump has been anointed by God, perhaps as a latter-day Cyrus, to redeem the decadent nation that the United States has become.  The same is true when I hear Zionists, whether of the Jewish or far more important Christian variety, proclaim that Israel is a “holy land” given to the Jewish people, through Abraham, and, therefore, entitled to support today by anyone who is truly a member of God’s kingdom.  It is not simply that I disagree with such assertions, which strike me as intellectually bizarre.  I also think they are politically dangerous to the highest degree, justifying all sorts of indefensible actions in the name of complying with Divine decree.

            Unfortunately, I never interrogated Ken on how he handled, either as a person or as an analyst, those professing such religious views.  They are, I think, very different from those we might classify as “ordinary” conservatives.  As a matter of fact, there are many “providentialists” who are liberal or radical in their politics, such as Nat Turner or John Brown.  It is a category mistake to assume that theological and political views have any necessary connection.  So, as a matter of fact, the problem I want to raise might as easily arise with political allies who offer certain kinds of religious arguments for their commitments.  Yet, I suspect, we are generally happy to bury any reservations we might have in the name of solidarity, a response that doesn’t work if one is appalled by the political implications of the proffered views. 

            So at that point, does one say “I respectfully disagree because a) God really doesn’t exist; b) God exists but surely doesn’t ask us to do something that violates (my theory of) justice; or c) even if we’re disobeying God’s will, I certainly don’t believe that God intervenes in history”?  Or does one say, “I really can’t take anything you say seriously.  It is as if you were the mass murderer “Son of Sam,” who claimed that his murders were elicited by messages he received from the dog Sam.

            Similar challenges simply are not presented by “ordinary” political disagreement.  I am pleased to count among my friends libertarians like Ilya Somin and Randy Barnett, both of whom I feel free to disagree with (and to have them disagree with me) while, at the same time, being confident that we in fact inhabit a common universe.  The same is true of Burkeans like Mark Graber or Ernest Young.  I may ultimately consider originalism as an ism nonsense, for all sorts of reasons, but I can fully engage with people about historical episodes and—I want to say “of course”—believe that they may have lessons for today even if they are not binding in the ways that are claimed by ardent originalists.  And I have only esteem for Evangelicals like the late Michael Gerson and David French, who today writes for the New York Times.  I am consistently touched by their columns treating their particular relationship to Christianity, regardless of my own unbelief.  I am happy to stand in solidarity with their admirable commitment to views with which I agree or, as is true with French and his pro-life commitments, to respect his undoubtedly good-faith beliefs that in no way depend on threats of divine wrath being visited on those who disagree with him.  But this doesn’t really resolve the problem for the many more who turn their religious beliefs in what I regard as appalling directions.

            No one wrote more illuminatingly about the true diversity of approaches to thinking about the United States Constitution than did Ken Kersch.  All of us were looking forward to many more years of his productive scholarship and, if we were lucky, personal companionship.  For some of us, it may simply be additional proof either of God’s non-existence or indifference to individual merit that he was taken from us far too soon. May his memory be a blessing.