Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with respect to each of these categories.
For Ken Kersch, developments in twentieth-century American constitutional law could not be adequately explained by either neat doctrinal evolution or the raw exercise of political power.
Ken Kersch’s remarkable scholarship generates profound questions about the difficulties—and even limits—of truly engaging with those who do not share certain ontological or epistemological commitments.
Ken Kersch showed us that constitutional development is not a story of inevitable progress, but of contested traditions, shifting coalitions, and the discontinuous, non-linear unfolding of political development.
By broadening the terrain of political and constitutional thought, Kersch brilliantly examined how constitutional faiths are forged and “law stories” are woven to create common identities.
The Roberts Court’s reconfiguration of free exercise and anti-establishment doctrine is not a simple conservative backlash. Rather, it creates a viable path for empowering a right-wing religious political project.
Chief Justice John Roberts’s opinion in Trinity Lutheran v. Comer (2017) breaks with past understandings of the Free Exercise Clause by merging a state discriminating against religious individuals with a state declining to fund religious institutions.
Ken Kersch’s Conservatives and the Constitution helps us see the second Trump Administration, not as an aberration, but as the fulfillment of certain conservative ideas that have been “hiding in plain sight.”
The “Lochner Era” was invented decades after the fact, and the 1970s were legal liberalism’s zenith, not its decline. Constitutional law professors’ standard story of legal liberalism gets it wrong on the front and back ends.
Did invocations of states’ rights by southern segregationists permanently discredit constitutional federalism? A re-examination of the 1960s political realignment suggests Americans can embrace—or re-embrace—this feature of our Constitution, while remembering state autonomy is a strong presumption but one that has always been checked by the Constitution’s rights guarantees.