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Crisis of the Two Constitutions

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Crisis of the Two Constitutions

10 Blocks podcast March 10, 2021
The Social Order
Politics and law

Charles Kesler joins Brian Anderson to discuss the divide between liberal and conservative visions of the Constitution, the “three waves of liberalism” that shaped America’s twentieth century, and the future of the conservative movement, post-Trump. Kesler’s latest book is Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness.

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on today's show is Charles Kesler. Charles is the Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College of Government in California. He's a senior fellow at the Claremont Institute, and he's the editor of their fantastic quarterly, the Claremont Review of Books, which I read from cover to cover whenever a copy lands in my mailbox. He's speaking with me today, however, to talk about his powerful new book, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness. It's published by Encounter and it's on sale now. So Charles, thanks very much for joining us.

Charles Kesler: Thank you, Brian. It's a great pleasure to be here, editor-to-editor. And I'm a great admirer of City Journal, the wonderful quarterly you edit. So we're actually quarterly-to-quarterly, as it were.

Brian Anderson: Yes, yes, that's right. Well, I'd love to get into this book, which I'm just finishing up today. I think it's a really terrific volume, it's a kind of wonderful overview of American political history, of some of the key issues that we're facing in the country in the 21st century, and it's written in this clear and luminous prose, so I really recommend it to all of our listeners.

Let me start off with just a basic question. Your book describes an America that's divided between two different visions of the nation and its past and future, and two very different approaches to understanding the Constitution. On one side is the Founders' Constitution, as you call it. And then on the other, what has come to be called the Living Constitution. What are the essential things to grasp about these two conceptions? And why does it matter?

Charles Kesler: Let me begin with the second question. Why does it matter? It seems to me, we need to understand the roots of our present discontents. America is incredibly divided politically in ways that are just not normal for our politics, and the question is why? And how are we to understand the enormous emotional and psychological and intellectual and political differences between liberals and conservatives in America today? It's not like it was in the Eisenhower era. It's not like it was in most of American political history where the two parties are sort of Tweedledum and Tweedledee. As you approach election day, they look more and more like each other. Now it's the opposite. As the parties approach the election, they look increasingly opposed to each other, and the whole tradition of a loyal opposition where the two parties disagree on policy, but share the same Constitution, is really fading.

Our new tradition is Resistance with a capital R, where whichever party is in, looks at the other one really as having one power somehow illegitimately and therefore is to be opposed, root and branch. This is what needs to be explained. And it seems to me, the awful causes of this have been working their way through American politics for quite a long time, and that the radical nature of the disagreement is such that the best metaphor with which to talk about it is really two constitutions. We have two radically different visions of what constitutes America, that are in competition with each other. If you have one nation with two constitutions, that's not a good situation to be in. And so, as I describe it, this is a process of estrangement and mutual antipathy that's been going on really for more than a hundred years.

It began in the Progressive Era. It accelerated and added layers, if you will, in the New Deal, but in the 1960s, it really got going. Then that slacked a little, but in the 1990s, it renewed itself. And that has brought us more or less to where we are today, I think. And the two contenders, these two constitutions, the first one, as you mentioned, I called the Founders' Constitution, meaning not just the written constitution of 1787, but also as amended and as supplemented by the Declaration of Independence and the general, you might say, principles of Republican government that were worked out in the Revolution and in the lead up to the Revolution, that's one constitution.

The other is the Progressive's Constitution, which they gave the name, starting at least with Woodrow Wilson. They called it the Living Constitution. That term in itself is a sort of giveaway, because what they're implying is that this is the living constitution, the other is a dead constitution, or at least it is on life support, and the only thing that keeps it going are transfusions from the one, the healthy constitution, the liberals' constitution, the one that is putatively at least alive and thriving.

Brian Anderson: A major figure in your book, you devote a fascinating chapter to him, is the political scientist Harry Jaffa. For our listeners who might be unfamiliar with Jaffa, could you explain who he was and how his study of the founding and of Abraham Lincoln's completion in a sense of the founding is something we should pay attention to as we think about the future of the American project, about this clash between the Living Constitution and the Founders' Constitution.

Charles Kesler: Harry Jaffa was a professor at Claremont Men's College in Claremont Graduate University for most of his career. He was a student of Leo Strauss, the great German emigre, who helped to revive the study, the serious study, of political philosophy in the 20th century. Jaffa was his earliest student, or at least one of his earliest students. And he went on to write mostly about America, and Jaffa became one of the greatest scholars of Lincoln in the 20th century, attacking Lincoln's thought from the point of view, or I should say interpreting Lincoln's thought, from the point of view of the serious study of political philosophy itself.

He read Lincoln very closely and very deeply. He was a political scientist, not a historian, per se, but I think most historians of the Civil War would agree with my estimation that Jaffa really was... There was no one who read Lincoln's speeches as wisely as Jaffa did. And he's interesting because he didn't go to the study of the founding in the beginning of his career, he went into the founding as a result of his interest in Abraham Lincoln. So he started with America in [inaudible 00:08:25], in the 1850s. And then in order to understand what Lincoln was up to, he had to go back to the founding and figure out where Lincoln was deriving his principles and how he was applying them to the slavery fight and the fight for the union in the 1850s and 1860s.

Jaffa was a friend of mine. He was a colleague of mine out here in Claremont, and he was a fellow conservative. But what is most interesting I think to your listeners and to my readers, I think, is that he himself changed his mind on the nature of the American founding in his first great book on Lincoln, which was called Crisis of the House Divided, and came out in 1959, so quite a long time ago now.

Crisis of the House Divided was a study of the Lincoln-Douglas debates, and it succeeded in bringing them alive in a way in which many books don't, and in particular, he interpreted Lincoln as, as you put it, completing the founding and even transcending the founding, because Lincoln, as Jaffa then interpreted him, regarded Jefferson and the Declaration of Independence as sort of [inaudible 00:09:52] and figures, meaning followers as it were of John Locke, for whom slavery was wrong, but it was not comprehensively wrong, and slavery could be justified insofar as it was necessary for your own self-preservation or even perhaps comfort. And he thought Lincoln added to this a moral richness and depth, which Jefferson lacked. So he regarded and said in so many words, that Lincoln had gone beyond the founding, he had absorbed all that it had taught, but he had transcended it morally and intellectually.

Then 40 years later, Jaffa wrote a second great book on Abraham Lincoln called, A New Birth of Freedom. And in that book, he changed his mind a little on the crucial question of whether Lincoln was improving on the founding, as he had argued, or as he argued in the subsequent book, in fact, was faithfully interpreting it, that there was a depth and a moral greatness to the idea of equality and liberty in the Declaration of Independence that Jaffa himself had missed 40 years before, but Lincoln had not. And so in Jaffa himself, you have this sort of intra-American and intra-conservative fight nicely illustrated at a very high intellectual level over whether the founding was, in fact, noble or great in its own right, or not.

Brian Anderson: Fascinating. That was very, very useful I think for listeners just to understand Jaffa's importance, and I encourage them not only to read your book, but to seek out these two volumes of Jaffa. One of the most impressive chapters in your book talks about the three waves of liberalism that shaped the American 20th century, and you alluded to this a short time ago. Three presidents really represent respectively one of the three waves. First you have Woodrow Wilson, the early 20th century progressive, then Franklin Roosevelt and the New Deal, and then Lyndon Johnson and the Great Society and the accompanying civil rights era. These waves sort of have mixed together, but each was also distinct.

I'm wondering if you could give a brief overview of what each of these waves have contributed to the liberal mind, if we want to call it that, in the 21st century, and how does Barack Obama and now Biden, how do they fit into that framework? Do their presidencies represent new liberal waves, a fourth or fifth wave? And is the woke-ism phenomenon something that is growing out of this tradition, an evolution of it, or something really new? That's a lot, I realize.

Charles Kesler: Do you have any easier questions?

Brian Anderson: It's really one of the key chapters of your book, because...

Charles Kesler: Well, thank you. What's so odd about our present situation, I think, is that in a way we are in a revolution, in the midst of a kind of political revolution, but it doesn't feel like a revolution. Because if you think of revolutions, you think of something like the French Revolution or its successors, where there's an immense social upheaval and lots of violence, and you have a kind of bloody civil war accompanying the political change going on. That isn't what's happened in America. Instead, we've had a rolling revolution that's been going on for almost a hundred years, and advanced, as you say, in these three waves. Let me briefly characterize what each wave was about.

The first wave, the progressive wave, of which, as you say, Wilson is the obvious avatar, represented a critique of the Constitution as outmoded. Woodrow Wilson was the first president to criticize the American Constitution for being anachronistic. It was a great 18th century constitution, he said, in effect, but this is the 20th century. And we have new problems undreamed of by the founders, which this constitution is not only designed not to alleviate, but in fact, makes worse. And what we need to do essentially is transfer the authority morally and eventually politically and legally from that outmoded constitution to a new up-to-date constitution, which he called the Living Constitution.

He explained this, oddly enough, in Darwinian terms. He said that Charles Darwin is the master scientist of our age, meaning the late 19th century and the 20th century. Change is a great concept that he introduced, Darwin introduced, into the study of biology, but we hadn't imported that notion adequately into our politics. And instead of a constitution which Americans used to boast of its separation of powers, its federalism, bicameralism, all of these famous institutional devices that the Federalist Papers extol, those devices, that 18th century system of checks and balances was exactly what Wilson thought was most outmoded in the Constitution, and what we needed to do was open it up to progress. And we needed a constitution that like an organism in a Darwinian universe, could respond to new challenges in the environment by changing, by mutating, by growing new parts of the federal government and testing them to see whether they help the American society survive better than without them.

This notion of an evolving set of human rights, and an evolving constitution to implement those rights, that we owe to Woodrow Wilson. But for many generations, I have to say, his successors told us a lullaby about the new constitution, that it was not in fact an alternative to the original, but rather merely, and a looser, more liberal interpretation of it, that the two constitutions had the same goals, but they were just about getting to those goals in different ways. Until the 1960s, basically, many liberals talked that way and many conservatives accepted that account of liberalism.

I think the truth was that that was always a kind of noble lie. There was a little bit of truth to it. It wasn't a complete lie, but it was meant to distract attention from the radical character of the proposed new constitution. It was meant to disguise that, and it became a less and less persuasive disguise during the 1960s and afterwards. We got a new constitution from the first wave. In the second wave, we got a new Bill of Rights. FDR spoke famously in his 1944 annual message of a second Bill of Rights. And even though he never actually formally proposed those as amendments, and they were not voted on and added to the constitution in the traditional way, they in effect were incorporated into our politics.

And what are these new kinds of rights? They are very familiar to us now because they really are almost at the heart of our politics: a right to a job, a right to education, a right to healthcare, a right to a vacation from the job, all sorts of socioeconomic rights which previously would have been thought to be good things. It's a good thing for people to have decent housing, it's a good thing for people to receive good education, and you ought to aim your public policy at getting these goods. But nobody would have said that these were rights in the same strong sense that we have a right to religious liberty, a right to freedom of speech, a right to the pursuit of happiness. Out of that, we got the entitlement state, essentially, the welfare state.

Then the third wave, the Great Society and all of the Great Society's enemies to its left, the so-called new left, that essentially was about adding a third Bill of Rights, you could call it, to our constitutional system. We have a new Living Constitution with a whole set of new welfare rights. And the sixties began the addition of lifestyle rights, or identity rights, beginning, of course, with one that is still very important, a sort of right to sexual satisfaction and to identify yourself sexually however you wish, and to seek satisfaction almost however you wish, but following from that many other aspects of racial and ethnic self-identification and, as well, social identification, which are now the focus of so much of our multicultural identity politics today. Counting each of those waves together, you have, in essence, the new constitution that modern liberalism is trying to foist on the American people and, in effect, refound America in this new image.

Brian Anderson: That's how you would interpret, really, the two terms of Obama, and Biden certainly seems to be heading in the same direction with talk of big government plans economically, already an emphasis on identity politics. It's as if they're trying to bring all of these different waves together into a new America.

Charles Kesler: Yes, I think that's right, unfortunately. There are many Democrats who are not on board for this whole agenda, but increasingly they I think lack influence in their party, and Joe Biden is in a way a good example of someone who is certainly a fellow traveler or more, but he is by no means an alternative to this agenda. He may want to proceed a little bit more slowly and perhaps with a little more general consent or a few more Republican votes, but he has no alternative to it, and he has no argument against it. And that's where we are. Arthur Schlesinger Jr, who was an impeccable liberal in mid century, 20th century America, distinguished between two phases of liberalism, which I think are useful to bear in mind.

He talked about quantitative liberalism, which was basically what the New Deal was about, trying to get a minimum standard of living, a kind of welfare floor under every American family or household. Then he said there was another, the newest phase, which was just beginning in the sixties, qualitative liberalism. Qualitative liberalism is about your inside, not your outside. It's about living a better, a higher quality, a more moral life. Unfortunately, our politics is increasingly about what's inside you, your thoughts, your evaluations, your morality, and it is really felt by liberals that government has a role in shaping your religious expression, your moral identity, and in compelling others to acknowledge certain people's or groups' identities, as well.

Brian Anderson: I'd like to shift to the other side of the political aisle, to the conservative movement, which as you note in the book in America, really arose in opposition to one degree or another to these three waves. And here you really do stake out a position that sees opposition, though, as not sufficient. You look at the Reagan presidency sympathetically, for example, but you also discuss the philosophical limits of Reaganism. And similarly, you close the book with a measured assessment I think of the Trump phenomenon and presidency. It's hard to see Trump as a leader who was all that concerned about the Founders' Constitution, even though the administration was very successful in appointing constitutionalist judges to the federal judiciary. I'm wondering if you could talk a bit about maybe the limits of Reaganism, where did Reagan fall short, and what is your view, summation view, of the Trump presidency and the future of the conservative movement really post Trump?

Charles Kesler: That's a very good set of questions. I think Reagan is greatly under-studied by modern conservatives. He was in most respects an extremely successful president who not only sort of reshaped electoral coalitions, voting coalitions, but changed the public policy discussion of the country. He set up the defeat of the Soviet Union in the Cold War, and he revitalized the economy in such a way that its second wind lasted really a generation or more. If you looked at the American economy in the late 1970s, you would never have expected that it would have reached the heights that it did in 2000, or let's say even under President Trump more recently.

All of that is true, and yet by his own admission in the Farewell Address, which is one of those understudied speeches of his that I was referring to, that he admitted that he had failed in a way in the biggest challenge of all, in the most important task that the Reagan Revolution had set for itself. He accepted in the Farewell Address, this term, the Reagan Revolution. He did so modestly. It was not his term. It was applied to his presidency, essentially, and he gratefully accepted it. But he said that he had meant for the Reagan Revolution in effect to be a kind of second American Revolution, to launch and to ground a new patriotism in the country, because all of his successes in public policy would not last unless the foundations of that good public policy in a sort of patriotic opinion, a love of the country among people in general, had been cemented.

He admitted that there was a new spirit of patriotism in the 1980s, but he had failed to institutionalize it. And as he put it, he had grown up in a different country, in a different America, than America in the 1980s, and he expressed it this way. When he was a child, this was early in the 20th century, when he was a child, you could learn about American history, about American patriotism, everywhere. Your parents would tell you about it, you would learn it in the schoolhouse, you'd learn it on the playgrounds, you would learn it in the motion picture theaters, on the radio. All of popular culture joined in singing the praises of America and its principles. But, he said, now in the 1980s, that's no longer the case you. Popular culture has in effect turned against that kind of patriotic consciousness, and universities have turned against it. Where do you go to learn it? That's the problem.

He said, even American parents, young parents in America today, don't know what to teach their children about America. They don't think that it's right to teach their children what Reagan called an unambivalent love of America. That, he worried about. That was the greatest cloud in the otherwise sunny skies that Reagan tended to see, as the kind of optimist that he was or had become at that point. In a way, you can say that his failure as a conservative, the failure of the Reagan Revolution to become a sort of second American Revolution, lay in the fact that he was a sort of consensus conservative. He believed in a certain kind of populism, really, that the people had a virtue. They still understood and revered the real America, so all you had to do was bring the people into power, make their views effective.

He took that theory as far as you can take it and got as much success out of it as you could, but as he himself admitted in effect in the Farewell Address, if the people are not sure of their values, if the people are not sure what to think about America, he didn't have an answer for that problem, because he was trying to empower the people and their values. That was the key to his kind of conservatism. It was a sort of Mayflower Compact sort of conservatism, a document he talked about interestingly several times. But the problem was the people were not sure of their values anymore, so how are you going to finesse that problem? In an odd way, the Trump phenomenon ended in the 1776 Commission, which I was proud to be a member of that fleeting commission.

The task that President Trump set this commission was to describe what patriotic civic education in America ought to be, and to suggest how we might be able to get there again. So even as Reagan's two terms ended in an admission of this failure to ignite and to institutionalize a new patriotism, Trump's one term ended in the same way, really, with a kind of desperate attempt to change the opinions of the people, to educate the opinions of the people, but of course, on his first day in office, President Biden abolished the 1776 Commission, as well as many other good things.

Brian Anderson: What is your view, Charles, going forward, of the conservative movement after the Trump presidency? Is there the possibility out there of some kind of renewed emphasis on the principles of the founding? Or is that becoming a kind of utopian hope?

Charles Kesler: I don't think it's utopian. I think we can see too much to the left's claims of historical inevitability if we let them get inside our head, and disarm ourselves. Look, this is still a fight, and it's a deep and important, an almost unavoidable political cold civil war, to use that term, that America finds itself in now. I don't think there's an easy way out. There are various scenarios for how one might find an exit ramp, but basically I think we've got to sort of fight our way through this. I don't think there is going to be a convenient exit ramp, and that means it's really a fight for the minds and the souls, in a way, of Americans, what they think about their country. In the wave of statue defilements and defacements in 2020, we saw just how radical these contemporary revolutionaries, would-be revolutionaries, on the left are. They're not just pulling down statues of Confederate generals or even of slaveholding founders.

They're pulling down statues of Abraham Lincoln and Frederick Douglas, abolitionist figures, and of people who you would think they were in favor of as men who brought greater liberty undeniably to the American, to all of the American people, but they are, they're precisely about, we don't know yet who will go up on the plinth from which Washington's statue, as it were, has been toppled, but that is the sort of classic revolutionary move, to topple the heroes of the old regime in order to enshrine new heroes for a new regime. Conservatism has to grapple with that, and it has to recognize that that is not a question you can leave to the end of your administration, which is in a way a sort of mistake that Reagan and Trump made. It really is the central question, what is the idea of justice that defines America?

Is this, as the left now openly says, a systemically racist country, a systemically unjust country? Or is the system essentially one of justice? Does the system represent human equality, liberty, and dignity? Or does it represent the antithesis of all those things? You can't really compromise on that debate, and conservatives have got to face that challenge, in a way, that question, which is you could call it cultural, but it's really political and cultural, is at the center of all of the more specific foreign and domestic policies that conservatives are going to be working on in the future.

Brian Anderson: That's a very, very powerful summation in a way of the importance of your book. I, again, encourage listeners to check out Charles Kesler's new book. It's called Crisis of the Two Constitutions. There's a lot more in it that we don't have time to go into in this podcast, but you get a sense of its themes and its importance. You can find it on Amazon or wherever books are sold, and you should also read Charles's work at the Claremont Review of Books and other publications where he also writes.

If you haven't already, please follow us on Twitter at City Journal and on Instagram @cityjournal_mi. As always, if you like what you've heard on the podcast, please give us ratings on iTunes. Charles, thanks very much for joining us.

Charles Kesler: Thank you, Brian. It was great fun, and I appreciate the opportunity.

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