| Book Review | Law and History Review, 25.3

Book Review

Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law, Cambridge: Cambridge University Press, 2004. Pp. 392. $75 cloth (ISBN 0-521-81178-3); $29.99 paper (ISBN 0-521-01055-1).

Ken Kersch is among a growing coterie of political scientists, specializing in law and courts, who approach their discipline not through statistics, but through historical narrative. His pathbreaking book, which is a substantial contribution to political science, legal history, and constitutional theory, demonstrates the importance of this development.

Constructing Civil Liberties presents three case studies that juxtapose the Supreme Court's development of particular civil liberties: privacy and criminal process rights; the rights of labor and African-American civil rights; and family autonomy, religious liberty, and national school policy. Although these studies are sufficiently cutting-edge and revisionist to make the book a rewarding read, they take on additional importance because Kersch uses them to illustrate a fresh "historically anchored theory of constitutional development" (11). Spurning what he describes as "Whiggish" narratives of the slow emergence and eventual triumph of "core political principle[s]" (9), Kersch's theory emphasizes "intercurrence" (25), by which he means that the Court pursues "multiple or contrary orderings ... in the face of ... specific pressures for institutional change" (235).

Kersch's case studies tell distinctive tales, but they have a common pattern. They begin with the generally accepted observation that for most of the nineteenth century the United States was a decentralized polity. Constitutional policy, which was set at the state and local level, valued individualism, economic rights, privacy, and education "undertaken primarily by nonstate actors"(244). When national statebuilding began in earnest after the Civil War, liberals attacked the old constitutional norms as anachronistic roadblocks that impeded progress, which they saw as the development of a centralized, regulatory, and secular state. These "Progressives" valued groups over individuals, state over family, and science over religion. "Statist" in outlook, Kersch says "the partisans of progress were outspoken opponents of the cause of rights protection" (20).

Early twentieth-century Progressives argued that because regulatory government needed information about the conduct of business, constitutional limitations on self-incrimination and search and seizure needed to be relaxed; because political democracy could not survive without economic democracy, the economic liberties of businessmen, workingmen and racial minorities needed to be curtailed in order to foster the workplace power of unionized labor; and because education was the key to instilling appropriate values in the next generation, the influence of locality, family, and religion had to be kept from schools.

In other words, the Progressives' attack on the rights of property included assaults on such rights as privacy, criminal process protections, and family autonomy that liberals came to prize after the New Deal. The origin of many modern civil liberty protections lies in conservative resistance to such Progressive initiatives as unbounded regulatory searches, publicity seeking legislative investigations, morals legislation, and mandatory public school education.

Kersch's case studies are sure to be contested, especially as they draw from recent controversial writings by other scholars. But the cumulative weight of Kersch's disparate narratives is sufficient to firmly ground his theorizing about the nature of constitutional development.

Kersch's theoretical claims revolve around the observation that "[t]he Court has never evinced a single, cross-cutting orientation across policy areas for any significant length of time"(25). Instead, the judiciary's rather "messy" (233) course of constitutional development is a story of "path dependency," "unintended consequences," "incongruities," and "intercurrence" (9, 25).

In the development of criminal procedure, for example, statebuilding jurists opposed privacy and fourth amendment protections when their application was to businessmen, but embraced them as a means to assert national control over the South's appalling system of racial injustice. Concern for minorities was limited, however. In their pursuit of "industrial democracy," Progressive jurists accepted that state supported "union power meant black exclusion" from workplaces and relegation to less remunerative occupations (189). For most of the twentieth century "[c]ivil rights and labor rights were antagonistic programs" (189). It was not until the mid-1960s that an accommodation between labor power and civil rights became part of the liberal agenda.

In Kirsch's view, constitutional "development is as rife with abrasions, abutments, agonisms, drift, and tensions as any other area of political life" (11). Constitutional change means that some "key rights ... have to be jettisoned or circumscribed to advance others"(1). Too frequently, constitutional theorists see their "job ... [as] reconcil[ing] essentially irreconcilable commitments in an emotionally satisfying and, hence, politically plausible way" (11). Throughout the twentieth century, Kersch says, "[c]onsitutional reformers ... proudly and defiantly made choices. In the interest of sustaining them, however, the ideologists ... erased them"(21).

Kersch, who is writing to supplant our "Whiggish ... myths" of constitutional development with an accurate "geneology of contemporary constitutional morals" (5), makes no normative claim. Still, if Kersch is correct that the Court has always acted as he describes, perhaps it cannot do otherwise. Accepting the inevitable may provide a "historic anchor" for constitutional jurisprudence in the twenty-first century.

Stephen A. Siegel

DePaul University College of Law

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