Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.
Yesterday afternoon, not long after the panel on national security adjourned, the LPAC Cinema welcomed another expert to speak on issues relating to the War on Terror. Unlike the panel however, Ken Kersch, a Political Science professor at Princeton University, was considering the domestic effects of the war, using it as a jumping off point to consider the civil liberties narratives that characterize American scholarship.
His talk, entitled “Thinking about American Civil Liberties Historically,” left room for those on both sides of the aisle to feel scathed, which is appropriate in light of his contention that the history of civil liberties often transcends the usual bounds of partisan politics. In a realm in which the chest-beating is left to the liberals and the most radical ideas often come from the conservatives, this ought to be expected.
Dr. Kersch presented to his audience three distinct narratives of American civil liberties. The first, which he has dubbed “the Civil Liberties Sidewinder,” is the standard narrative lens of liberty scholarship. Exemplified, he says, by the “classic nineteenth century Fourth of July oration,” particularly since 1932 and the rise of Franklin Roosevelt. Even today, after the so-called Reagan Revolution, Dr. Kersch posits, the prevailing view is “a liberal hangover with a lot of Republicans around.” This view acknowledges moments with crackdowns and backslidings in terms of liberties, but these are always written off as the byproduct of war, be it the Alien and Sedition Acts during the Quasi-War or McCarthyism in the early days of the Cold War.
The second prevailing narrative, the conservative history of civil liberties, is characterized by a faith in the American system of government. In this school of thought, everything made sense through structural liberties until the New Deal, and the separation of powers, enumeration of powers, and federalism as a whole served to right any deviations in the system. The wartime crackdowns so reviled by the whiggish Sidewinder set are not necessarily favored but ignored, or in other cases justified as defenses against real threats that the “fake history that comes about” – the one without hysteria – disregards. The New Deal, as before, is the one exception to this self-righting system, as in this narrative FDR destroyed the logical structure in favor of the bureaucratic welfare state. Even though often referring to this school of thought as “these people,” Dr. Kersch made a point of defending the logic of this view, also acknowledging the “perverseness” of liberal tendency to defend the entire Bill of Rights, save for the Second Amendment.
The third view, which is the one Dr. Kersch claimed to have the most affinity for, is what he deems the neoconservative theory of civil liberties, one characterized by a certain “ruefulness” and “tragic sensibility.” Expressing dismay about the difficulty of correcting contemporary misconceptions of the neoconservative movement since the Iraq War, the professor alluded to the old definition of a neocon as a liberal who is “mugged by reality.” This narrative, a sort of synthesis of the prior two, concedes, for example, that the New Deal was too bureaucratic, but also inevitable and necessary. They are focused on the “consequences of particular interpretations,” warning that misinterpretation of the law can be both morally and consequentially bad, as with the angry byproducts of bussing, the defense of abortion as analogous to a tonsillectomy, and the perils of welfare reform.
Neoconservatives see the crackdowns of the Sidewinder School as present and regrettable, but are quick to point out that such crackdowns are perpetrated by liberals as well, and not necessarily as in wartime; Kersch notes the relevant issue of campus speech codes as an example. Even more than the conservative school, the neoconservative school seems to, in Dr. Kersch’s description, to have a keener sense of the history than the other two schools, acknowledging, for example, that Alger Hiss and the Rosenbergs were Communists, that the labor movement had a long history of racial suppression, and most notably that rights are constantly being redefined. As Dr. Kersch notes, at one point in time, it is would be an absurdity to think that conduct could become speech, “but twenty years later, every idiot knows the difference,” and that speech can now become conduct. This is to be expected though, as redefinition of categories and analogies are “the lifeblood of constitutional thought,” Kersch said.
After concluding, and offering the message he felt the occasion demanded of him, that there’s a lot more importance to consider than the formulaic Sidewinder speech, Dr. Kersch took questions. He agreed that the United States history of civil liberties has a dominant “perpetual dance of race,” as one interested listener put it, stressed his temperament’s sensitivity to the dangers of liberal egalitarianism when questioned about his own narrative bias. He spoke of the incredibly dark view of modern America possessed by many non-scholarly foreigners, who have a quasi-dictatorial view of our current polity that “bears almost no resemblance to what’s actually going on,” a view he acknowledges is highly influenced by the War in Iraq. He noted the dominant American strain of liberal individualism which contributes to our mythos of stability, that the Framers would, while clearly having a document with room to breathe, would be shocked by the absurdity of some constitutional interpretations, such as the one holding that “‘commerce’ means ‘commerce and anything else.'”
The most salient question may have been whether the narratives distort the interpretation too much to be useful. Dr. Kersch was quick to cite their inherent heuristic value, noting that the shifting interpretations brought about by these schools of thought often having novel consequences; William Jennings Bryan transforming from a evangelic buffoon to a populist hero, for example. In the end, such shifting views, Dr. Kersch believes, are extraordinarily valuable. In the end, his suggestion was this: “if you take this particular vantage point, you will see things you haven’t seen before.” Clearly, he has, which made for an important and interesting lecture with the opportunity to shift at least some portion of the political debate on this campus.