The Roberts Court and the Past and Future of Religion as a Constitutional Concern

by Julie Novkov

Abstract

As the United States contemplates a possible regime transformation to a less democratic, more authoritarian government, scholars have focused on power, norm violations, and the collapse of institutional guardrails and accountability. Critics highlight rhetoric emphasizing white nationalism, patriarchy, and xenophobia. Others have critiqued executive empowerment and the administrative state’s destruction. They emphasize the Trump administration’s rejection of constitutional limits and norms, attributing this rejection to an unbridled will to power. Critics and some advocates of Trumpism also note efforts to reverse legal and constitutional reform to restore an era when minority rights were less protected. The administration’s rejection of longstanding constitutional norms and principles prompts analysis beyond routine debates over constitutional interpretation, with some analysts instead discussing power and how it is used to build or resist authoritarian state structures.

This may be correct. However, Ken Kersch’s work suggests an alternative approach based on influence and evolution of ideas. Kersch’s lifelong fascination with ideas and their connection to constitutional development provides guidance. Power may drive outcomes, but the shape of what emerges, authoritarian or not, will reflect ideas about the Constitution. And the ideas that can purchase will depend in part upon the legal and constitutional environment created through constitutional litigation.