Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law

By Ely, James W., Jr. | Independent Review, Summer 2006 | Go to article overview

Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law


Ely, James W., Jr., Independent Review


* Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law By Ken I. Kersch Cambridge, U.K.: Cambridge University Press, 2004. Pp. 400. $75.00 cloth, $29.99 paperback.

It has long been apparent that modern constitutional law bears only a faint resemblance to the original constitutional vision. The United States no longer has a federal government with few and limited powers. Nor does the prevailing constitutional ideology reflect the framers' conviction that the security of private property is essential for the enjoyment of political liberty (see James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 2d ed. [New York: Oxford University Press, 1998]). The triumph of the New Deal and the subsequent constitutional revolution of 1937 fundamentally altered the legal landscape. Most post-New Deal scholarship sought to justify the new constitutional order and celebrated the demotion of traditional property rights. Concomitantly, historians fashioned a view of the past that stresses the steady, linear expansion of civil liberties and civil rights during the twentieth century.

In the revisionist work Constructing Civil Liberties, Ken I. Kersch challenges the conventional wisdom and offers a compelling rejoinder to what he terms "the Whiggish New Deal narrative" (p. 5). Such Whiggish accounts, he maintains, treat history as a morality play and "import a particular set of unifying myths into the study of constitutional development concerning civil rights and civil liberties" (p. 11). Instead of the flawed tale of a triumphant concern for civil rights and civil liberties overcoming the judicial solicitude for economic rights that characterized pre-1937 constitutionalism, Kersch presents a more complex and equivocal story. Important claims of right often conflicted, and some traditional liberties were rejected in order to advance newer understanding of which rights deserved protection. As Kersch explains, to picture this messy process involving difficult choices as a seamless march of progress, scholars have ignored inconvenient facts and made "extensive historical erasures" (p. 17). Indeed, he points out that progressives and liberals have not been consistent champions of personal rights and have frequently shifted from one cause to another while couching their essentially political choices in moralistic terms. Progressives and liberals often privileged group rights-on behalf first of organized labor and thereafter of blacks, for example-over individuals' rights claims.

Kersch assesses the accuracy of the Whiggish narrative by examining the evolution of privacy rights, criminal justice procedures, labor law, civil rights, and educational policy from the late nineteenth century to the present. He finds a substantial disconnect between an imagined past, conjured up by progressives and liberals, and the historical record. He concludes that "progressives and civil libertarians were just as likely to be opponents of individualistic freedom as its champions" (p. 28). Indeed, he emphasizes that progressives and liberals in the early twentieth century were in fact preoccupied with strengthening governmental power, not defending individual rights. They tended to regard claims of rights as barriers to their state-building project.

Consider the checkered history of a right to privacy. Committed to building a powerful state, progressives in the early twentieth century saw privacy rights as an obstacle. According to Kersch, Louis Brandeis does not deserve a reputation as the originator of the right to privacy. The famous 1890 article on privacy coauthored by Brandeis simply proposed a tort remedy by members of the social elite to curb unwanted publicity. It bore only the most attenuated relationship to the modern right of privacy, which is concerned primarily with issues of sexual autonomy, devised in the 1960s by the Warren Court. In fact, Kersch argues, Brandeis was not a strong champion of privacy and saw publicity as a regulatory tool. …

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