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71 Md. L. Rev. 229 (2011-2012)
Beyond Originalism: Conservative Declarationism and Constitutional Redemption

handle is hein.journals/mllr71 and id is 231 raw text is: BEYOND ORIGINALISM: CONSERVATIVE DECIARATIONISM AND CONSTITUTIONAL REDEMPTION KEN I. KERSCH* Our republican robe is soiled, and trailed in the dust. Let us repu- nfy it. Let us turn and wash it white, in the spirit ... of the Revo- lution .... Let us re-adopt the Declaration of Independence, and ... the practices, and policy, which harmonize with it. ' Abraham Lincoln 1. INTRODUCTION Almost 150 years after the ratification of the Thirteenth Amend- ment, the redemption of the nation from chattel slavery has become important-and for many conservatives, central-to the understand- ing of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial accep- tance and subsequent eradication-once a preoccupation primarily of the liberal/left-are very much on the mind of the modem American right. In a marked departure from the old, more familiar conserva- tive narrative,2 many of the modern movement's most influential con- stitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) Declara- tionism. As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Decla- Copyright@ 2011 by Ken I. Kersch. *Associate Professor of Political Science, Boston College. B.A., Williams; J.D., North- western; Ph.D., Cornell. kersch@bc.edu. I benefitted greatly from discussions at the 2011 Maryland Constitutional Law Schmooze on the Thirteenth Amendment, and in particular from conversations with Linda McClain. I also benefitted from discussions with Jim Flem- ing and Eldon Eisenach, the latter of whom kindly shared with me important works-in- progress. 1. Abraham Lincoln, Speech on the Kansas-Nebraska Act at Peoria, Illinois (Oct. 16, 1854), in LINCOLN: SELECTED SPEECHES AND WRITINGS 93, 98-99 (1992). 2. By old conservative narrative, I refer to the story of post-emancipation depreda- tions of states' rights, and the property and associational rights of segregationist business owners, and the constitutionally impermissible expansion of national government powers. See, e.g., Linda C. McClain, Involuntary Servitude, Public Accommodations Laws, and the Legacy ofHeart of Atlanta Motel, Inc. v. United States, 71 MD. L. REV. 83 (2011). 229

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