Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” The late Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. In this essay (part of a symposium honoring Kersch’s work), we sketch five of those lessons. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and totalitarianism. Kersch’s book highlights that a recurring refrain by conservative thought-makers and politicians during their “wilderness years,” or postwar liberalism’s “heyday” between 1954 and 1980, was that conservatism’s enemies—including not only “godless communism,” moral relativism, and secularism, but also liberalism, liberal “living” constitutionalism, and a Supreme Court not guided by natural law or Christianity—were leading the U.S. toward tyranny, authoritarianism, and totalitarianism. Kersch meticulously explicates how the different narratives within the modern conservative movement shared a motivating and unifying narrative of the call for constitutional restoration, to be ushered in when Republicans returned to political power and control of the judiciary.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In our forthcoming book, tentatively entitled “What Shall be Orthodox” in Polarized Times, we argue that, in recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in a growing number of contexts, often when conservatives resist governmental promotion of public values concerned with equality. Many controversies, like Barnette, concern schools: conflicts over how best to teach U.S. history, civics, and patriotism and over parents’ rights to opt their children out of curriculum that conflicts with their religious beliefs. Barnette also features in conservative challenges to state antidiscrimination laws and bans on conversion therapy. Our book analyzes battles over “what shall be orthodox” in contemporary legal and political controversies in the United States. In this article, we give an overview of the book, followed by some remarks in response to the published essays by several commentators: Susan Frelich Appleton, Carlos Ball, John Q. Barrett, and John and Cameron Kang. Advancing a constitutional liberalism, the book aims to give Barnette’s principles their proper role in protecting our basic liberties, but to temper overextending them to eviscerate civic education programs and antidiscrimination laws—programs and laws crucial to the health and maintenance of our constitutional democracy. What conservatives have portrayed as championing of freedom over and against liberal, feminist, or progressive compulsion of orthodoxies, we demonstrate to be clashes between conservative orthodoxies seeking to maintain or restore a traditional status quo and liberal, feminist, or progressive measures aiming to secure the status of equal citizenship for all. We conclude the book with strategies for building and maintaining a “Constitution in exile” over the next generation or longer, while conservatives are likely to dominate the Supreme Court.

In his new book, Constitutional Essentials, Frank Michelman provides a splendid elaboration and defense of 'the constitutional theory of political liberalism' implicit in John Rawls's classic work, Political Liberalism. In this essay, we make some observations about what a difference 30 years makes, comparing the political and constitutional climate in which Rawls wrote and published Political Liberalism in 1993 with the climate in which Michelman wrote and published this exegesis of it. We focus on (1) changes in our circumstances of pluralism, including the accentuation of polarization and unreasonable views, and (2) the simultaneous breakdown of trust in the Supreme Court authoritatively to resolve disputes concerning constitutional essentials. Throughout, we acknowledge and seek to reckon with the possibility that Michelman may have given Rawls's liberal principle of legitimacy its fullest, most coherent account just at the moment when the possibility of realizing it seems to be passing.

This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as "constitutional rot" in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a "Sputnik moment for teaching civics"-seeing a link between the whitesupremacist/conspiracy-theory mob's actions and the failure to instill civic virtue in "We the People." To be capable of spurring national reconciliation and renewal, civic education must reckon with systemic racism and with how to strive to overcome it. This Essay critiques the model of "patriotic education" set out in The 1776 Report as a signal of, rather than a cure for, constitutional rot. The Report's attacks on "identity politics" and critical race theory as incompatible with "authentic" civics education echo in recent proposed or enacted state and local laws prescribing whether and how teachers may teach students about racism and sexism. A better model of civic education, we argue, is the call for "reflective patriotism" set out in the Educating for American Democracy Initiative. This model combines "love of country with clear-eyed wisdom about our successes and failures in order to chart our path forward." It helps students to engage with "hard histories" of inclusion and exclusion and to understand how the constitutional order has become more democratic because of the efforts of social movements. It seeks to educate young people "to participate in and sustain our constitutional democracy." This model offers hope for addressing constitutional rot and preparing students to face present-day challenges.

Can theories of evolution explain the development of our capacity for moral judgment and the content of morality itself? If bad behavior punished by the criminal law is attributable to physical causes, rather than being intentional or voluntary as traditionally assumed, what are the implications for rethinking the criminal justice system? Is evolutionary theory and “nature talk,” at least as practiced to date, inherently conservative and resistant to progressive and feminist proposals for social changes to counter subordination and secure equality? This book addresses many of the philosophical ... More

Throughout the history of moral, political, and legal philosophy, many have portrayed passions and emotions as being opposed to reason and good judgment. At the same time, others have defended passions and emotions as tempering reason and enriching judgment, and there is mounting empirical evidence linking emotions to moral judgment. In Passions and Emotions, a group of prominent scholars in philosophy, political science, and law explore three clusters of issues: “Passion & Impartiality: Passions & Emotions in Moral Judgment”; “Passion & Motivation: Passions & Emotions in Democratic Politics”; and “Passion & Dispassion: Passions & Emotions in Legal Interpretation.” This timely, interdisciplinary volume examines many of the theoretical and practical legal, political, and moral issues raised by such questions.

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

This comment assesses Xenophon Contiades and Alkmene Fotiadou’s critique of arguments that long, frequently amended constitutions tend to be bad constitutions. It also criticizes their analysis of the purposes of amendment, arguing that most amendments, in some way, aim to respond to imperfections or correct flaws in existing constitutions. Furthermore (drawing on the analysis of John Marshall), the comment sketches some general criteria for a good constitution: that it should be a “great outline,” not a detailed legal code; that it should be difficult to amend; and that it should not be amended frequently. Finally (building on the analysis of Jack Balkin), it maintains that a good constitution would be capable of serving as “basic law,” “higher law,” and “our law.”

In my recent book, Fidelity to Our Imperfect Constitution, I put forward a sustained critique of originalism in all its forms and defend what Ronald Dworkin called a “moral reading” of the U. S. Constitution and what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. In this essay for the UNAM symposium on the book, I reply to five thoughtful commentaries. First, as against Barber’s commentary, I justify responding to the “persistent resurgence of originalism” and attempting to “save the new originalists from themselves” by showing the extent to which many of them acknowledge the need to make moral judgments in constitutional interpretation. Second, in appreciation of Imer Flores’s commentary, I draw a distinction between being a systematic moral reader and acknowledging the need to make normative judgments in constitutional interpretation. Third, I resist Ken Kersch’s interpretation and criticism of my project as “calling the fight” for “aspirationalism” over “historicism”—I mean instead to argue for the superiority of moral readings (which combine what he calls “aspirationalism” or justification and “historicism” or fit) over originalisms. Fourth, I embrace Linda McClain’s careful analysis of originalisms versus moral readings in Obergefell v. Hodges (2015), protecting the fundamental right to marry for same-sex couples, as confirming my argument that “inclusive originalism” includes practically everything that a moral reader would be likely to argue for. Finally, in response to Lawrence Sager, I bring out the affinities between his well-known “justice-seeking” constitutional theory and my own moral reading, and I argue that both theories reflect conceptions of fidelity as honoring our aspirational principles, not simply following our historical practices in the manner of conventional originalisms.

Preface James E. Fleming and Jacob T. LevyContributors PART I. FEDERALISM, POSITIVE BENEFITS, AND NEGATIVE LIBERTIES 1. Defending Dual Federalism: A Self-Defeating Act Sotirios A. Barber 2. Defending Dual Federalism: A Bad Idea, but Not Self-Defeating Michael Blake 3. The Puzzling Persistence of Dual Federalism Ernest A. Young 4. Foot Voting, Federalism, and Political Freedom Ilya SominPART II. CONSTITUTIONS, FEDERALISM, AND SUBSIDIARITY 5. Federalism and Subsidiarity: Perspectives from U.S. Constitutional Law Steven G. Calabresi and Lucy D. Bickford 6. Subsidiarity, the Judicial Role, and the Warren Court's Contribution to the Revival of State GovernmentVicki C. Jackson 7. Competing Conceptions of Subsidiarity Andreas Follesdal 8. Subsidiarity and Robustness: Building the Adaptive Ef?ciency of Federal Systems Jenna BednarPART III. THE ENTRENCHMENT OF LOCAL AND PROVINCIAL AUTONOMY, INTEGRITY, AND PARTICIPATION 9. Cities and Federalism Daniel Weinstock 10. Cities, Subsidiarity, and Federalism Loren King 11. The Constitutional Entrenchment of FederalismJacob T. LevyPART IV. REMAPPING FEDERALISM(S) 12. Federalism(s)' Forms and Norms: Contesting Rights, De-essentializing Jurisdictional Divides, and Temporizing AccommodationsJudith ResnikIndex