The Better Angels of Our Nature: An Introduction to the Scholarship of Ken I. Kersch

For the Balkinization symposium in honor of Ken Kersch

Rogers M. Smith 

Kenneth Ira Kersch, who went by Ken, passed away on November 17, 2024, at just 60 years of age. He was Professor of Political Science at Boston College and the founding director of its Clough Center for the Study of Constitutional Democracy. Winner of multiple awards for his stellar writings on American constitutional development, Ken was a rarity in modern academia, a conservative-leaning scholar whose erudition, open-minded thoughtfulness, and warm, smiling presence won him genuine friends and admirers even among ardent liberals and progressives, as this well-deserved symposium makes abundantly clear.

I counted myself among those liberal friends, though I was not close to Ken. I first met him after Keith Whittington asked me to read and comment on a revised version of Ken’s dissertation, which won the American Political Science Association’s Edward Corwin prize for best dissertation in public law. I agreed broadly with its critique of many liberal scholars’ self-congratulatory accounts of twentieth century American constitutional developments as having submerged nasty corporate economic rights for liberating rights of personal conscience and self-expression—but I found it severely overstated in places. So much so that I made some sharp criticisms; and I was a bit wary when Keith subsequently introduced me to Ken. But he exuded good humor and gratitude that I felt to be genuine, all the more so when the book came out, entitled Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. I saw that he had responded constructively to my comments. The book deservedly received the J. David Greenstone best book prize of APSA’s Politics and History section. It was and is a much-needed antidote to contemporary progressives’ tendencies to read the Constitution, which contains no clear subordination of people’s economic rights to their other rights, as saying what we wish it said. It is also a probing analysis of how modern constitutional ideas and institutions came to be, honestly assessing the losers and winners in those processes in ways that illuminate many of the populist resentments so prevalent today.

Ken and I met and talked at various conferences in subsequent years, always enjoyably. But what I remember best is being riveted by a talk he gave on the Presbyterian theologian Francis Schaeffer and other contemporary religious conservatives, drawn from his research for what became his truly exceptional second book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. Though I was raised a Presbyterian, I had not heard of Schaeffer and I did not realize his role in building the modern Religious Right through films and writings. Ken showed how Schaeffer depicted liberal Supreme Court decisions as key moments in an apocalyptic providentialist narrative, in ways that made defeating liberal constitutionalism a divine imperative. That account later helped me understand not only the depth of conservative evangelical support for Donald Trump but how so many could see him as a flawed but sacred tribune of God.

The chapter on “Evangelical and Fundamentalist Christian Stories” is only one part of the impressively in-depth survey of all the major strands of contemporary conservative constitutional theory that Conservatives and the Constitution provides. It received the Herman Pritchett “best book” prize of APSA’s Law and Courts section, notwithstanding the fact that Ken was known to make severe if perceptive criticisms of the behavioralist scholarship that predominates in that section. Throughout the book as in some preceding writings, Ken chose to join me in stressing how political narratives, “stories of peoplehood,” undergird not only people’s specific policy positions and broader ideological and jurisprudential commitments but also their senses of their own core identities. But he captured the variety of contemporary conservative stories far more fully and with greater clarity than my writings have done. I drew heavily on his example and his specific arguments in drafting the chapters on the stories motivating today’s conservative and progressive racial policy alliances in my recent book with Desmond King, America's New Racial Battle Lines: Protect versus Repair.

Out of the many contributions of Conservatives and the Constitution, and of Ken’s scholarship more generally, let me single out one other. From early on, Ken called attention to how deeply many if not indeed most modern conservatives felt that the modern administrative-regulatory state, begun in the Progressive Era and greatly expanded during the New Deal and Great Society years, was fundamentally unconstitutional as well as tyrannical, and should be eradicated. Thus the book’s subtitle: Imagining Constitutional Restoration in the Heyday of American Liberalism. Though he documented many excesses, inefficiencies, and much outright foolishness in the modern American state, Ken was skeptical about whether it could or should really be stripped away as conservatives envisioned—but he grasped far more accurately than most of us that the will do so genuinely existed among the most passionate modern conservative activists.

We have since seen conservatives on the Court seeking to erode the power of independent administrative and regulatory agencies through the “major questions” doctrine, the abandonment of Chevron judicial deference to agency decision-making, and the embrace of unitary executive theory. We have also seen in the undeniably historic first 100 days of Donald Trump’s second term a massive effort to use a flood of executive orders and DOGE-led firings, funding cuts, and agency closings to terminate as much of the modern administrative state as possible. The fate of this effort, which threatens to cripple many governmental programs and services long seen as vital and which has involved innumerable apparent violations of constitutional due process and the Administrative Procedure Act, is uncertain. Many in the public and on federal benches are pushing back. But of all the scholars of American constitutional development I know, Ken Kersch was most focused on how and why this kind of assault on modern governing institutions was a real possibility. Now that it is at hand, his insights are badly needed and sorely missed.

Ken’s most recent book, American Political Thought: An Invitation, arose both out of his passion for the subject matter and his passion for teaching. It is a survey of major voices in American political thought throughout the nation’s history and of scholarly frameworks for analyzing them. It is designed to be an accessible introduction to those topics, an aim it admirably achieves. It is at the same time a remarkably mature, sophisticated, and balanced work. Its central thesis—that American political thought can best be understood as a “tradition of contention” over concepts of freedom, equality, and democracy, encompassing a wide range of views on those concepts—is in my view exactly right, as is his conclusion that current conditions and problems, within the United States and on a global scale, are challenging the adequacy of much of the political thinking that Americans have inherited and continue to employ. I retired from teaching in 2022, and one project I had long thought I might pursue in retirement was a similar survey of American political thought. But though of course I have some interpretive differences with Ken’s book, on reading it, I decided I did not need to make that project a priority—and I wished that I’d had Ken’s book to assign while I was still teaching.

I wish even more that I had taken greater advantage of Ken’s great knowledgeability, insightfulness, and reliable willingness to discuss the many matters in which we had shared interests. There are two themes in his work with which I had some initial disagreements but over time have come to support fully.

Like me, Ken belonged to the “historical institutionalist” camp of public law scholars. He argued in a superb article, “The Distinctiveness of the Supreme Court: A Historical Institutionalist Perspective,” that because the Court’s institutional role was to settle disputes between two parties, it had special needs to make decisions in ways the parties would accept as legitimate that differed from the institutional imperatives shaping Congress and the President. My first reaction was, as governing institutions, don’t they all need to legitimate their decisions to broader publics? But on reflection I came to agree that although they do, many of the defining features of judicial reasoning and rhetoric arise from the institutional distinctiveness Ken identified.

In “Beyond Originalism: Conservative Declarationism and Constitutional Redemption,” Ken contended that conservatives could maintain many of the strengths while overcoming many of the limitations of originalist jurisprudence by reading the Constitution as an instrument of the Declaration of Independence’s project, the crafting of political systems that would secure basic rights for all over time, while governing with the consent of the governed. I worried that, even though Ken recognized that this Declaration project could be interpreted in progressive terms, his argument would hand the Declaration over to conservatives too substantially. I have since come to regard the view that Americans share a Declaration of Independence project as not just the best available basis, but as the intrinsically right basis, for finding badly needed common ground among conservatives and liberals today, and for rebuilding a sense of shared American identity and purpose. It is the most promising route for reviving, in Lincoln’s words that Ken admired and emulated, the better angels of our nature.

I never discussed any of this with Ken. Why not? The truth is, I imagined he would always be there, and that I would check in with him, as I had done in the past, when particular projects prompted me to do so. Now that door has closed, which is a severe personal loss, as well as a tragic loss of one of the wisest, most distinctive, and most valuable contributors to contemporary scholarship on American constitutionalism, American politics, and American political thought. Even more, Ken Kersch was an extraordinarily kind and good human being. We need those now more than ever. 

Rogers Smith is the Christopher H. Browne Distinguished Emeritus Professor of Political Science at the University of Pennsylvania. He can be reached at rogerss@sas.upenn.edu.