Beyond Originalism: Conservative Declarationism and Constitutional Redemption
Author: Ken I. Kersch (Associate Professor of Political Science, Boston College)
Year: 2011
Genre: Academic law review article
Publication: Maryland Law Review, Vol. 71, Issue 1, Article 12 (71 Md. L. Rev. 229)
Core Argument
Kersch provides the most rigorous academic genealogy of Declarationism — the constitutional theory holding that the Constitution must be interpreted through the principles of the Declaration of Independence. His thesis: contemporary conservative Declarationism serves two ideological functions simultaneously:
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Rehabilitating Southern conservatism: It allows conservatives to morally rehabilitate themselves after the discrediting of their longtime defense of legal segregation. By adopting Lincoln, MLK, and Jefferson as a “Declarationist Triptych,” conservatives can claim the mantle of civil rights while opposing its contemporary applications (affirmative action, anti-discrimination law).
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Unifying the Religious Right: Declarationism’s natural law framework provides common constitutional ground between evangelical Protestants, Catholics, and other religious conservatives who otherwise have different theological commitments.
Both functions are crucial to the modern Republican Party — which is precisely why Declarationism has been so politically successful.
Historical Genealogy
The Declaration’s Historical Promiscuity
Kersch emphasizes that Declarationism is neither inherently liberal nor conservative — it is a flexible rhetorical resource. The Declaration has been invoked throughout American history by feminists (Seneca Falls, 1848), Populists (National People’s Party platform, 1892), anti-imperialists, and FDR. It is not “old wine in new bottles” but genuinely “old wine” being poured into a new conservative bottle.
Neo-Confederate Strand: M.E. Bradford
The starting point for understanding what Declarationism displaced: the neo-Confederate tradition represented by M.E. Bradford, which dominated much of the conservative movement through the early 1980s. Bradford:
- Dismissed the Declaration’s equality clause as “one serious flirtation with the millennial thing”
- Attacked Lincoln as a dangerous moralist/centralizer who reimposed Jacobin utopianism on America
- Defended states’ rights and the Confederacy’s constitutional position
- Was Reagan’s original nominee to head the NEH — blocked by neoconservatives (Kristol, Podhoretz) over his Lincoln attacks; William Bennett appointed instead
Bradford’s defeat in 1981 was the institutional turning point. It marked the moment the neo-Confederate strand lost the institutional battle to Jaffa’s Declarationism.
The Jaffa Alternative: Lincoln as Constitutional Redeemer
Harry V. Jaffa’s project was the equal and opposite of Bradford’s. Where Bradford cast Lincoln as America’s constitutional villain, Jaffa made him the republic’s redeemer. Jaffa’s Lincoln:
- Grounded American constitutionalism in the Declaration’s natural rights principles
- Read “all men are created equal” as a universal moral truth, not a historically contingent assertion
- Saw the Civil War as completing, not betraying, the Founding
- Treated the Declaration as the “beating heart” of the Constitution
This is the “Declarationist Triptych”: Lincoln, Jefferson, and Martin Luther King, Jr. — invoked together as witnesses to the eternal return of the republic to its founding moral principles. In moments of crisis, Declarationists invoke this triumvirate to claim that American constitutional history is a story of ever-more-complete realization of the Declaration’s promise, and that the current progressive left is betraying that promise.
The Bradford-Jaffa Debate
The Bradford-Jaffa debate is one of the foundational intellectual conflicts of postwar American conservatism. Bradford called Jaffa’s “equality” obsession “the Heresy of Equality”: there is “no man equal to any other, except perhaps in the special, and politically untranslatable, understanding of the Deity.” He accused Jaffa of taking the “all men are created equal” clause “in abstraction from its whole” and erecting an entire constitutional theology on a misread phrase.
Jaffa replied that Bradford’s constitutionalism had “no worship of the law whatsoever” — only perpetual devotion to preserving existing hierarchies. Bradford’s Lincoln was a fake; his own Lincoln (the philosopher-statesman) was the genuine article.
Kersch’s assessment: Bradford was more historically honest (his neo-Confederate constitutionalism was actually what the founders intended in key respects), but Jaffa was more politically viable. After the Civil Rights revolution, defending Calhoun and criticizing Lincoln was a losing political strategy.
The Two Functions of Conservative Declarationism
Function 1: Rehabilitating Southern Conservatism
Before the mid-1960s, Lincoln and MLK were largely reviled by the Southern right. Through the late 1970s and early 1980s, the conservative movement still “harbored a strong unreconstructed element of neo-Confederatism.” Bradford’s 1981 NEH defeat was the end of that era institutionally.
Declarationism allowed conservatives to shift from a position that was morally discredited (defending segregation and states’ rights against federal civil rights enforcement) to a morally compelling position: we are the true heirs of Lincoln and King. Affirmative action, disparate-impact law, and DEI programs are the true violations of King’s vision of colorblind equality.
This move — appropriating the civil rights tradition to attack civil rights policies — is the constitutional-ideological core of the “reverse racism” argument that became the Republican Party’s post-1970s racial politics.
Function 2: Unifying the Religious Right
Robert P. George’s Witherspoon Institute project “Natural Law, Natural Rights, and American Constitutionalism” exemplifies the second function. The Witherspoon Institute’s iconography juxtaposes Washington, Lincoln, and MLK with a parchment copy of the Declaration — making natural law and civil rights inseparable. This is the Catholic natural law tradition finding common ground with evangelical and Protestant conservatives through the shared medium of the Declaration.
The Declarationist framework allows:
- Catholics to ground their opposition to abortion and same-sex marriage in “natural law” language compatible with constitutional argument
- Evangelicals to root their politics in founding principles rather than explicitly sectarian theology
- Both groups to invoke Lincoln and MLK as witnesses to the compatibility of religious natural law and American democracy
Robert P. George’s Witherspoon Institute
Kersch’s unexpected exhibit: the Witherspoon Institute (an off-campus Christian Right research center at Princeton, run by Robert P. George) uses the same iconography as Ole Miss’s Declaration of Independence Center for the Study of American Freedom — Lincoln, MLK, and Jefferson. The institute’s “Natural Law, Natural Rights, and American Constitutionalism” web resource deploys Declarationism to make the case that natural law is the foundation of American constitutionalism and that the civil rights movement validated, rather than challenged, this framework.
This is the Declarationist Triptych in action: Lincoln’s anti-slavery argument, King’s “I Have a Dream” invocation of the Declaration, and Jefferson’s authorship of the Declaration are synthesized into a single tradition that the conservative Religious Right claims as its own.
Relationship to Other Wiki Pages
- Primary academic source for Declarationism — provides its full intellectual genealogy
- Primary source for M.E. Bradford profile (the neo-Confederate strand that Declarationism displaced)
- Corroborates Harry V. Jaffa as the key theorist
- Connects Robert P. George to the Declarationist constitutional tradition
- Provides historical depth for understanding The Claremonters’ constitutional project
- Raises important questions about Common Good Constitutionalism: Vermeule’s project explicitly rejects Declarationism (he attacks natural rights liberalism); Kersch’s article helps map the internal conservative constitutional debate
Contradictions and Tensions
The Tait essay (Conservatives or Counterrevolutionaries?) frames Declarationism’s Lincoln rhetoric as ideological cover for a counterrevolutionary project that is fundamentally about cultural restoration and demographic protection. Kersch’s more sympathetic reading sees Declarationism as a sophisticated constitutional theory with genuine intellectual content — not merely a mask. The tension between these readings runs throughout the wiki.
Vermeule’s Common Good Constitutionalism is explicitly post-Declarationist: it rejects natural rights liberalism (including Jaffa’s version) as the source of the very administrative state it purports to oppose. The New Right has moved beyond Declarationism even as Claremont continues to defend it.