Wednesday, December 7, 2011

Kersch on “Goldilocks” Originalism

From Ken Kersch at Balkinization here:

One of the most influential of these is what I will call “Goldilocks Originalism.” Conservative “Goldilocks” originalists do not orient themselves (in the first instance) in opposition to “living constitutionalists,” but rather in opposition to secularist, positivist, relativist, liberals and progressives. To these movement originalists, the fatal flaw of their antagonists is not that their constitutional theory leaves judges, in ruling in cases, unrestrained in imposing their politics rather than following the law (though Goldilocks originalists certainly believe that to be the case, and often say so), but rather that that the constitutional theory of their opponents severs the tie between our perpetually besieged nation and the only anchor that will truly hold -- the belief in (a Christian, or Judeo-Christian) God. In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side.

The axis of opposition constructed by the conservative movement between those who revere the Founder’s (God-anchored) Constitution, and the secular, relativist, progressives is omnipresent on the contemporary political Right -- at the grassroots, to be sure, but also in a scholarly literature, not written, for the most part, by law professors, but rather by theologians and political theorists. There are three wellsprings of this vein of conservative originalist scholarship: 1) Evangelical Christianity; 2) Catholic Natural Law; and 3) Straussianism. Indeed, a highly ideological originalism that girds itself for battle against Godless secularism and relativism is what holds these three groups – which, historically, had long often been at each other’s throats – together, as compatriots in an effective political coalition.

The orientating axis I have described is evident everywhere in the constitutional thought of influential evangelical conservatives – but I will focus here mainly on the other two wellsprings. Straussian political philosophers – students of the émigré University of Chicago philosopher Leo Strauss (1899-1973) (and students of students, and, now students of students of students) are often taken to be atheists – it is hard to tell, in many cases, for, even if you ask them, given their beliefs about esotericism in philosophy (the threat posed by true philosophers the extant political order), you can’t trust their answers. For our purposes, I will note that one of their animating tropes is the indispensability of reconciling “Athens and Jerusalem” (or, put otherwise, “Reason and Revelation”) in the construction of a just and good political order. In Straussian Harry Jaffa’s highly influential account in Crisis of the House Divided (1959), Abraham Lincoln’s world-historical accomplishment was in doing just that, by incorporating the opening lines of the Declaration of Independence into the U.S. Constitution – thereby redeeming the American Founding, which was all but fatally compromised by its acceptance of chattel slavery. ...

I think Kersch needs to keep in mind that most "Straussians" are not Jaffaite "West Coast Straussians" but rather "East Coast Straussians." They have their own way of articulating "Goldilocks' originalism," but without the Declaration of Independence and its God; they view the DOI's God as certainly not the Christian God or even the Judeo-Christian God, God of the Bible, or what have you. Strauss himself didn't think Athens and Jerusalem could be reconciled. That throws a bit of a monkey wrench into Kersch's narrative.


Tom Van Dyke said...

In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side.

Because they are.

I think Kersch needs to keep in mind that most "Straussians" are not Jaffaite "West Coast Straussians" but rather "East Coast Straussians."

Ace point, Jon. The Jaffaites aren't really Straussians atall. They---esp Thomas G. West, an ace--are merely good explicators of the American political theology of the Founding era.

Neither is Scalia any of the 3 types Kersch lists. Clarence Thomas believes in natural law---Scalia thinks America dropped it in Erie vs. Tompkins, 1938.

Tom Van Dyke said...

I do think this is a fair article, though, and it rather suits my own views to a "T."

With the caveat that this "accidental Thomism," although it aligns with the Founders, isn't demanded by the Constitution, although it certainly allows it.

And in counterargument to the anti-theistic secularists, that the Constitution doesn't demand their brand of strict separationism. Although it certainly allows that, too, but via the democratic process, not the demands of "living" Constitutionalism.