This is a fascinating book about constitutional development in the United States that questions traditional explanations for the genesis of constitutional rights. In this erudite study, Ken Kersch offers an account of the changing interpretations of constitutional rights by analyzing landmark cases in their historical context in order to show the interplay of ideological, political, and social forces that influenced them. The book provides a careful reconsideration of the jurisprudence concerning civil rights and civil liberties that effectively challenges the conventional wisdom about individual cases. Kersch's compelling analysis demonstrates that explanations for the expansion of particular rights are often more complicated than traditional constitutional works have assumed. He argues that the expansion of constitutional rights did not occur in a unilinear and unidimensional fashion (cf, e.g., pp. 132, 360). This is a brilliant interdisciplinary study that should interest scholars in many fields, including cultural studies, history, international law, law and society, and political science. This comprehensive book is rich in historical detail and full of surprises.
Kersch begins by advancing a strong argument in favor of investigating the ways in which constitutional interpretation reflects political efforts at building the “New American State.” It contains three elaborate case studies: one concerned with privacy and criminal process rights, another reviewing the relationship between labor rights and civil rights, and the third focused on education rights. The final chapter, despite being titled “Conclusion,” offers a new, provocative consideration of the relationship between American constitutional law and international human rights law.
Throughout, Kersch leads the reader to competing explanations for the advocacy of more rights as part of his intellectual strategy of problematizing standard accounts of doctrinal developments. He accomplishes this by using various techniques. He shows that contrary to expectation, those who championed broader interpretations of rights were fueled by maleficent motivations. For instance, he notes that the Knights of Labor, who staunchly defended laws prohibiting child labor in the 1920s, wanted to protect “well paying jobs” for adults from children. Their primary concern was not ensuring that children pursue educational opportunities. He also describes how individuals historically known as the champions of particular principles actually held much narrower views (e.g., William Douglas on privacy, p. 114).
The first case study on the constitutional development of criminal procedure rights, that is, the Fourth Amendment search and seizure provision and the Fifth Amendment self-incrimination provision, is designed to show that the Supreme Court's “new solicitude for civil liberties [in the area of rights of the accused] was not a progressive project” (p. 121). Kersch demonstrates that changes in privacy law were influenced by the emergence of new discovery rules. The modern view of privacy as conceptually linked to sexual autonomy overlooks earlier case law related to privacy that reflected the notion that the state was entitled to fact-gathering powers (p.120). Another key insight is that the expansion of due process rights was strongly related to realizations about racial inequalities. The author suggests that the U.S. Supreme Court's reasoning in one case influenced the disposition of another case considered during the same term. For instance, he notes that in Monroe v. Pape (1961), the Court held that a black family was indeed harassed by police because they were shielded by immunity. A month later, he points out, the Court heard arguments in Mapp v. Ohio in which it established the exclusionary rule, thereby creating a disincentive for police misconduct inasmuch as illegally obtained evidence would henceforth be inadmissible at trial. Kersch suggests that the Miranda decision, following two cases in which police obtained coerced confessions from blacks, was inspired by a desire to deter police harassment of blacks (p. 124). To his credit, he includes in this study the analysis of attempts to employ human rights treaties as a basis for enlarging the scope of rights. He ultimately concludes that this approach is futile because the UN Charter is essentially a “dead letter” (p. 110) and notes that reliance on treaties was subsequently replaced by a strategy of invoking equal protection instead.
The second case study focuses on two major twentieth-century constitutional developments, labor rights and civil rights. Although they are usually analyzed separately, Kersh contends that examining the interrelationship between them is crucial to a complete historical understanding of these rights. One important part of his argument is that a careful examination of the changes in African American political thought reveals that they were tied to changes in the interpretation of labor rights.
In the third case study on education rights, Kersch begins by challenging the conventional view that education was not a part of state building in the United States, which differs from the experience of European nations. Contending that the absence of a national educational policy does not prove the lack of a U.S. commitment to education, the author considers several controversial policies to demonstrate the role that education played in the construction of the American state: the Founders' debate about establishing a national university, the twentieth-century campaign to enact compulsory education laws, and judicial treatment of the proper relationship between church and state. The many reasons why a national educational system was not favored are thoroughly explored in this chapter. Kersch's elaborate analysis of the influence of anti-Catholic thought in some of the debates complicates the historical account of tensions between scientific and religious worldviews. Yet he shows that the conflict was not always between secularists and Catholics, as Protestants eventually began to join Catholics in later Establishment Clause litigation. Although he concedes that constitutional development via education failed in securing a national educational system and secularism, the Supreme Court's jurisprudence concerning church–state relations, free speech, and racial segregation influenced American politics. The evolving jurisprudence in these areas shaped American views of citizenship in important respects.
Constructing Civil Liberties is beautifully written, engaging, and thought-provoking. Kersch is to be admired for the way he captures the historical context in which landmark decisions were rendered, by drawing on diverse and varied scholarship in intellectual history, film studies, scholarship on popular culture, and other disciplines. In his discussion of what led to particular doctrinal shifts in civil rights, he emphasizes the writings of Gunnar Myrdal. In the treatment of educational rights linked to cases concerned with religion, he highlights the influence of Paul Blanchard, who condemned American Catholicism by drawing comparisons between the Vatican and the Kremlin (p. 296). His nuanced treatment of the influence of intellectuals even captures shifts in their writings, for example, the discussion of Walter Lippman's views on the relationship between silence and democracy (p. 275). Also highly impressive is the precise characterization of particular traditions, such as the Catholic objection to cremation (p. 302, n. 238).
The final chapter investigates what Kersch terms the rise of global or world constitutionalism. Here, when he considers differing European and American views of translational legal regimes, his analysis reflects skepticism about the validity of international standards. He says that American and European lawyers have been engaged in an enterprise of norm construction (although they deny they have invented them), in which he implicitly denies the status of customary international law. While Kersch's willingness to include international law in his study of American constitutional development is commendable, his cynical reaction to customary law reflects almost exclusively the American discussion of this topic, and suggests that he has not consulted the larger literature on this subject available via the Index to Foreign Legal Periodicals. It is odd that his bibliography contains only U.S. Supreme Court decisions, as he has omitted state court decisions as well as foreign ones (p. 363).
As an exemplar of interdisciplinary scholarship, this book is appropriate for graduate seminars and may be suitable for advanced undergraduate courses if students have studied constitutional law. Kersch forces us to question our underlying assumptions about the real forces that shape historical developments. He calls into question simplistic accounts of constitutional development with richly detailed case studies. This extraordinary book is an absolutely first-rate study that meets the highest standards and deserves to be widely read.
