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

The modern jurisprudence of civil liberties and civil rights is best understood, not as the application of principles to facts, but as a product of currents of progressive reformist political thought. This book demonstrates that rights of individuals in the criminal justice system, workplace, and school now identified with the essence of civil rights and liberties, were the end point of a layered succession of progressive-spirited ideological and political campaigns of statebuilding and reform. In questioning this vision of constitutional development, this book integrates the developmental paths of civil liberties law into an account of the rise of the modern state and the reformist political and intellectual movements that shaped and sustained it. In doing so, Constructing Civil Liberties provides a vivid, multi-layered, revisionist account of the genealogy of contemporary constitutional law and morals.

Table of Contents:
1. Introduction; 2. Reconstituting privacy and criminal process rights; 3. Reconstituting individual rights: from labor rights to civil rights; 4. Education rights: Reconstituting the school; 5. Conclusion.

Review :
'This book is an original, nuanced, and exquisitely-researched critique of the Whiggish 'ideology of progress' narrative that dominates post-New Deal scholarship on American politics, constitutional law and development, civil liberties and civil rights, and the Supreme Court. Kersch's path-breaking alternative explanation of constitutional development will make this book an award-winner. It is a must read for political scientists, historians, legalists, the informed public, as well as for scholars of constitutional development - within and without the American context. I recommend it for use in graduate and undergraduate courses on American politics and political development, civil liberties and civil rights, constitutional law and politics, and comparative constitutional change.' Ronald Kahn, Oberlin College 'Chronicling the ways in which the modern regime of progressive civil liberty and rights has entailed the submergence or marginalization of such traditional rights as economic liberty and property, Kersch shows how many of the forsaken rights are as worthy of moral consideration as the rights that superceded them. Rather than uncritically celebrating the ostensibly linear expansion of civil liberty and rights over the course of the twentieth century, Kersch makes a case for a more tragic view of historical development that recognizes the trade-offs and zero-sum choices inherent in the construction of any legal regime of rights. Based on copious and probing research, Kersch's book will appeal to those interested in American legal and political development, civil liberties and rights, and the history of ideas. It should also be read by anyone who enjoys seeing reigning orthodoxies challenged by an insightful and serious thinker.' Donald Downs, University of Wisconsin 'Ken Kersch adds an interesting new perspective to the study of American constitutional development. I found especially illuminating his treatment of late 19th century notions of civil liberties, but the entire book repays close study and will undoubtedly generate much discussion.' Sanford Levinson, University of Texas Law School