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

• Author: Ely, Jr., James W.
• Position: Book 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...