Claremont's Constitutional Crisis

In the opening pages of Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Charles Kesler suggests that the civil unrest following the death of George Floyd in 2020 should be called “the 1619 riots.” As readers of Law & Liberty know, this refers to the New York Times’ controversial “1619 Project,” which claimed that the true founding of the United States came with the arrival of slaves in America, not the Revolution or the signing of the Declaration of Independence. Nikole Hannah-Jones, the driving force behind the “1619 Project,” replied to Kesler, “It would be an honor.” Current debates over race, social justice, and civil rights, they agree, raise fundamental questions about the status of the Declaration and its “self-evident truth” that “all men are created equal.”

What, then, should we call the violent attack on the nation’s Capitol on January 6, 2021? How about “the Flight 93 riot”? This refers to Michael Anton’s notorious Claremont Review of Books (CRB) article claiming that “2016 is the Flight 93 election: charge the cockpit or you die.” Anton urged conservatives to vote for Donald Trump because “a Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at least you can spin the cylinder and take your chances.” Such gambling is necessary because the country is “headed off a cliff.” Buoyed by votes cast by “the ceaseless importation of Third World foreigners” (otherwise known as immigrants who have become naturalized citizens), Democrats are “on the cusp of a permanent victory.” Anton does not advocate violence, but it is hard to see how anyone who agrees with him could fail to appreciate the implications of his argument: if such systematic corruption leads to defeat (or, worse, a “steal”) at the polls, then it is time to charge the cockpit of democracy, using all means necessary.

In a more recent CRB article, Anton carefully avoids condoning the violence of January 6, but minimizes the mayhem and—more importantly—offers a justification for this display of “revolutionary spirit.” The 2020 election, he claims with unjustified conviction, was stolen. We are now governed by “a one-party oligarchy” that “rules by coercion, not consent.” Since this “ruling class has backed Middle America into a corner,” it is not surprising that the “deplorables” fought back. Anton has given us a glimpse of the conspiracy theory that inspired a mob of “patriots” to storm the sacred citadel of constitutional democracy.

Like Nikole Hannah-Jones, Michael Anton is above all a publicist and provocateur. To understand the 1619 Project, one must go first to the “critical theory” so popular in the academy today, and ultimately back to Foucault, Marcuse, and Nietzsche. Similarly, tracing the intellectual foundations of Antonism inevitably leads us to the weltanschauung of the Claremont Institute, where Anton is a Senior Fellow. As other conservative intellectuals deserted Trump, the Claremont Institute became the center of his most devoted intellectual advocates. I suspect that most of those affiliated with the Institute will not just accept but celebrate this characterization. No longer was Trump merely the least bad alternative. To them, he became the savior of American “greatness.”

Kesler’s Dueling Constitutions

This brings us back, at last, to Charles Kesler. Kesler is, without a doubt, the brains of the outfit. He does not engage in the type of wild provocation and conspiracy-mongering one sees in some “Claremonsters.” His praise of Trump is always qualified. His style is calm, scholarly, and often ironic. He is a serious student of political philosophy, both ancient and modern. As editor of the CRB, he has assembled a remarkable group of reviewers and let them have their say. Kesler has never endorsed Anton’s rhetoric or strategy; indeed, in the Flight 93 essay, Anton criticizes him for failing to wholeheartedly embrace Trump.

Nonetheless, as the title of Kesler’s new book suggests, it provides the clearest and most thoroughgoing explanation of the political worldview that drives many of those who are convinced that our country is going straight over the cliff. We have now reached the title’s Crisis: The Constitution of the Founders and Lincoln, firmly rooted in natural rights and natural law, has been replaced by a Progressive constitution based on an understanding of history and progress that eventually collapses into nihilism. After three great waves of Progressivism—spearheaded by Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson—the original Constitution is nearly gone. It is up to us to recognize our plight and engage in the “Recovery of American Greatness.” As the subtitle suggests, the final chapters present Trump as the unlikely agent of the recovery of the best regime. The book’s cover depicts a knight (“We the People”) with lance and shield in hand, ready to attack the monster (“Living Constitution”) that prevents our good knight from retaking the distant Capitol building. While the art would have been commissioned before January 6, it is probably not the best image under present circumstances. But it does capture an important reality: The arguments of Kesler’s book can easily be read as a justification for storming the corrupted seat of power in hopes of restoring American greatness.

Kesler explains that he is not interested in “constitutional law” as conventionally understood or taught in law school. Nor is he all that interested in constitutional structures such as federalism and separation of powers. His overriding concern is what James Ceaser called in his enlightening 2004 Tocqueville lectures “foundational concepts.” Like Ceaser, Kesler focuses on the competing claims of Nature and History.

In Kesler’s Manichean view of American politics, the country “is torn between two rival cultures, two constitutions, two ways of life.” In one corner stands “the founders’ Constitution,” rooted in an understanding of unchanging human nature. In the other slouches the “living Constitution” committed to the proposition that our only possible guide comes from History, which shows us the direction of Progress. Progressive liberalism has “indulged a radicalism that dare not speak its name.” That pernicious foundational concept has reshaped our public policies, our constitutional arrangements, and our culture since the dawn of the 20th century. Kesler’s central purpose is to explain the dangers of continuing down the road of historicism and to reinvigorate Nature as the foundation of our republic. These are important undertakings. Unfortunately, in the process, he ignores serious flaws in the American regime, exaggerates the influence of progressive historicism, and constructs a narrative that encourages anti-constitutional extremism.

The Good: The Founder’s Constitution

Part I of Crisis offers a long and often complicated exploration of the political thought of the Founders and Lincoln. His most striking argument is that our founding was not a distinctively modern undertaking—as such serious students of the political thought of the Founders as Martin Diamond, Walter Berns, and Joseph Cropsey have argued—but a “heretical combination of ancients and moderns.” Since “the purpose of American constitutionalism is to produce a certain kind of human being and citizen,” the “political theory of the American regime cannot be understood apart from the political science of the classics.” Here Kesler stands on the shoulders of his Claremont mentor, Harry Jaffa, who claimed that Lincoln’s greatness was to elevate American liberalism above the “low but solid” liberal foundation attributed to it by scholars ranging from Diamond to Bernard Bailyn. Lincoln, according to Jaffa and Kesler, succeeded in combining modern liberalism with ancient virtue.

Claremont’s “best regime” narrative serves to deflect attention from any inherent contradictions or tensions in the American regime that could drive unwanted political change.

Kesler is at his most convincing when he shows how leaders of the young republic came to appreciate features of political life that Aristotle understood but modern liberalism had either downplayed or ignored. One such insight is that sustaining a republican form of government requires the cultivation of civic virtue. Of course, admitting that a certain level of civic virtue is needed for self-government is a far cry from saying that the purpose of the regime is creating virtuous citizens as opposed to protecting individual rights and liberties. Another Claremontism is that while “enlightened statesmen will not always be at the helm,” in times of crisis even democratic republics need great men such as Lincoln and Churchill. “Greatness” has little or no place in liberal theory. Yet recognizing that a republic will sometimes need what Jefferson called natural aristocrats does not turn it into the sort of mixed regime that Aristotle hoped would combine and moderate the competing claims of democrats and aristocrats.

Less convincing is Kesler’s and Jaffa’s central argument: that the American regime is in principle “nothing less than ‘the best regime of Western civilization.’” According to them, our original foundational principles combined reason and revelation without compromising either. They rooted natural rights in natural law, giving an elevated, ennobled status to individual liberty. They made room in democratic politics for great men, and made great men safe for democracy. At times their argument seems to be that these principles were established by Lincoln in his refounding of the regime during the Civil War. At others, it seems that those principles were there all along, waiting to be identified by Lincoln. In any case, the subtleties and beauty of this near-perfect synthesis of reason and revelation, ancient virtue and modern liberty went unnoticed until rediscovered by Jaffa. It is not easy to understand how such a startling, long-unrecognized synthesis left such a huge imprint on American institutions and political culture.

The arguments of Kesler and Jaffa on this score undoubtedly provide rich material for graduate seminars. Those outside the subfield of political theory might wonder what difference any of this makes. The answer: a lot. The “best regime” narrative serves to deflect attention from any inherent contradictions or tensions in the American regime that could drive the political change Kesler decries. Inverting Lincoln’s dictum in the Lyceum Speech, Kesler suggests the decay of such an excellent regime could only come from the outside: to wit, foreign theories of history that deify The State. Before turning to that theme, it is worth noting some of the regime-based explanations of change (and decay) that Kesler ignores in his search for villains.

Most obvious is the conflict between American principles and American practices. The Thirteenth, Fourteenth, and Fifteenth Amendments did not end racial discrimination in the United States. Kesler notes this without fretting too much about it. Dismantling the racial caste system in the South, rectifying the legacy of centuries of racial subordination, and addressing subtle forms of racial discrimination required a vast expansion of federal power. The creation of this “civil rights state” did not emerge from a Hegelian understanding of The State, but from the inherent difficulty of putting into practice the principles of the Declaration and the post-war Amendments. Nor was this an example of the inexorable expansion of bureaucracy: much of the expansion of regulation came from the courts and Congress. Like many others affiliated with the Claremont Institute, Kesler is quick to decry affirmative action and the “war on poverty,” but reluctant to address the deeply rooted problems that those flawed measures seek to address.

Equally important is Kesler’s failure to acknowledge any of the inherent tensions within our democratic republic. These should be familiar to anyone who studies the foundations of the American regime: the conflict between our democratic impulses and the preservation of constitutional forms; the twin dangers of populism and demagoguery on the one hand, and plutocracy on the other; the tendency of individualism to undermine the public spiritedness that is crucial for self-government; the tendency for the “pursuit of happiness” to degenerate into the “joyless quest for joy”; and the many ways in which demands for equality lead to centralization of government, culminating in Tocqueville’s “soft despotism.” (It is also worth noting that for Tocqueville, it is the belief in equality—rather than German idealism—that “suggests to the Americans the idea of the indefinite perfectibility of man.”) For those like Tocqueville and Diamond who see the American founding as a quintessentially modern undertaking, prudence requires a delicate balancing act, building upon the regime’s strengths while recognizing and leaning against its evident shortcomings.

The Bad: The Progressives’ Constitution

Building upon the analysis in his 2012 book, I Am the Change: Barack Obama and the Crisis of Liberalism, Kesler develops a withering critique of the political thought of Woodrow Wilson. Wilson was the only president to openly attack the Founders and the Constitution. He was also the only president of the U.S. to have served as president of the American Political Science Association. As Kesler reviews the fuzzy abstractions in some of Wilson’s academic writings, one sees the connection between these two facts. There can be no doubt that Wilson injected both German historical thinking and a Darwinian understanding of politics into his grandiose political analysis.

Kesler also explores what happens when theories of history and progress lose any sense of the “end of history,” that is, the ends toward which we are unknowingly but inevitably headed. Those who embrace “progress” without a standard for distinguishing it from decay engage in dodgy circumlocution, but always end up in one of two places. One is a thoroughgoing non-judgmentalism that culminates in political quietism. The other surreptitiously smuggles in standards of good and bad through the backdoor. A telling example of this comes in Justice William Brennan’s famous 1985 speech extolling the “living constitution.” Brennan combined a lengthy explanation of why constitutional interpretation must evolve with the claim that “the sparkling vision of the supremacy of the dignity of every individual” that is “embodied” in the Constitution is not only “deeply moving,” but “timeless.” Brennan’s understanding of “liberty and justice for all individuals” might not conform to that of Justice Thomas or Charles Kesler, but he does not deny—indeed he might not have realized—that he needs such a trans-historical foundation to guide his interpretation of the “living constitution.”

Kesler is less convincing when he moves from a critique of Wilson’s political theory to his central argument about its influence on subsequent American political development. He presents Wilson’s progressivism as the most destructive disease that threatens American greatness. The three great waves of progressive liberalism that he inspired have “pervasively reshaped Americans’ expectations of government and of life.” With the crashing of the third wave during the Obama presidency we could finally see “just how radical, fratricidal liberalism could become.” For Kesler, the central dynamic can be summed up in a few words: History replaced Nature as the fundamental grounding of Americans’ political belief. Before Wilson, Nature prevailed; after Wilson, History gradually triumphed.

It is hard to imagine Andrew Jackson musing about the Phenomenology of Spirit and the Philosophy of Right or to know what a “vastly more democratic” Hegel would look like.

The link between radical progressive theories and American decline is not as apparent as Kesler would have us believe. The central problem, Kesler explains at the beginning of his chapter on Wilson, is not the programs of the New Freedom or the New Deal, but “the transformed understanding of the purposes of government” and “the reasons given” for them. Kesler does not launch an attack on the Federal Reserve Board, the Federal Trade Commission, the Securities and Exchange Commission, or Social Security Act. The crux of the problem is more abstract: the exalted status Wilson bestows upon The State. Yet in his discussion of Wilson in I Am the Change, Kesler made this major concession: “Wilson gave his heart to Hegel, but his tongue to the American voter, whom he reassured that the modern State did not rule but ‘only serves.’” In such an Americanized, democratized version, it is hard to see how this State run by expert civil servants differs all that much from Hamilton’s energetic executive. Whatever dark forces lurked in the recesses of Wilson’s “heart,” his influence on American politics lay primarily in what he said and did during his presidential campaigns and time in office. That was not nearly as radical as his academic writing.

Throughout Part II Kesler explores themes developed in Ceaser’s Tocqueville lectures. But in at least two ways, Ceaser’s impressive analysis casts doubt on Kesler’s simple story of History displacing Nature. First, with multiple examples, Ceaser demonstrates that both sets of arguments have been prominent since colonial times. “Customary history,” especially its Whig variant, was a more common contemporary justification for the Revolution than arguments about natural rights. “Philosophy of History,” Ceaser notes, “emerged as an important partisan issue in the 1790s.” The Federalists accused the Jeffersonians of embracing the idea of the infinite perfectibility of man that lay behind the French Revolution’s most extreme manifestations. Meanwhile, the Federalists sought to tamp down appeals to natural rights, which they recognized could be used to attack positive law, including the Constitution. The succeeding “second party system,” Ceaser shows, “is notable for the introduction of History as a foundation in American politics.” The two major parties “had each embraced an idea of History in a synthesis with nature.” Whigs, became the “Party of Memory” and Democrats the “Party of Hope” (but not yet Change).

With this Kesler does not seem to disagree. The Jacksonians, he writes, responded to the “danger of Bonapartism by embracing a kind of theory of progress, influenced by Hegel though vastly more democratic.” It is hard to imagine Andrew Jackson musing about the Phenomenology of Spirit and the Philosophy of Right or to know what a “vastly more democratic” Hegel would look like. But it is clear that the arguments about natural rights embraced by the Founders and Lincoln never entirely displaced foundational arguments based on history and progress.

Second, as Ceaser emphasizes and Kesler shows, arguments from History can take several different forms. By any measure, Social Darwinism was a much more powerful intellectual force in America at the turn of the century than Hegelian worship of the rational State. Herbert Spencer’s variant “explained the mechanism of progress by a decentralized model in which unintentional action produces a harmonious effect.” The resulting prescription? Laissez-faire economics, with a deep skepticism of the rational State. Various permutations of Darwinian thought, Ceaser notes, “were used to justify a withdrawal of government from society (to allow the natural struggle to proceed) and even to establish and strengthen racialist conclusions of ethnology.”

Kesler nonetheless insists that one particular form of historical thought formed the basis of the liberal progressivism that corrupted the best regime: Hegel’s philosophy of history with its alleged deification of The State administered by expert civil servants. “In many ways,” Kesler wrote in I Am the Change, Hegel “laid the deepest underpinning of modern American liberalism, though his thought had to be adulterated and democratized before this could happen. . . . The debt that Progressive idealism owed to German idealism was enormous.”

Given the pivotal role Hegel plays in Kesler’s argument, it should be noted just how superficial was the understanding of Hegel’s complex philosophy held by the few Americans who paid any attention to him. Most academics came in contact with his work through the writing of English Hegelians. Kesler notes that “German and English sense of the term” state were “quite opposed to each other.” “Limited government made as little sense to the first as it made great sense to the second.” In her carefully researched book on Theodore Roosevelt, Jean Yarbrough explains that John Burgess, the Columbia professor who introduced TR to Hegel, adopted “the language of Hegel, though not his meaning.” Far from teaching Teddy to romanticize the “ethical state,” Burgess “used German state theory . . . to defend the classic liberal order that Roosevelt and his Progressive allies would attack.” TR was more inspired by the deeds of Bismarck than the words of Hegel. To the extent that TR and his cousin Franklin favored a stronger national government, it was because they embraced a conventional American view of progress that saw government as a force for good in the lives of average citizens.

The most convincing counter to Kesler’s argument about the triumph of an alien understanding of The State is a clear-headed look at the actual structure of the peculiar American welfare, regulatory, and civil rights state. Yes, the federal government is large, and growing ever larger. And yes, appointed officials wield substantial authority within it. But has this country really “adopted a thoroughgoing centralization of administration”? Hardly.

Although the U.S. is no longer exceptional in having a small or weak state, it remains unique in building a national government that is fragmented, decentralized, judicialized, and administered primarily through third parties and state and local governments. As John DiIulio has emphasized, we have delegated an enormous amount of discretion to non-state actors in our effort both to avoid excessive centralization and to hide the true extent of government. Ours is what Steven Teles calls a Rube Goldberg-style “kludgeocracy” in which one incremental patch is placed on top of another by various actors in our fragmented political system. As I have found in my work on environmental policy, entitlements, and civil rights, the courts have profoundly shaped our public policies in ways unimaginable in other western democracies.

Our “administrative state” is far from a Weberian bureaucracy. Our unusual constitutional arrangements coupled with a political culture that combines “ideological conservatism” (above all, distrust of centralized government) with “operational liberalism” (strong support for established welfare state and regulatory programs) have created a distinctively American governing style that would dismay Hegel as well as Tocqueville. In fact, DiIulio has made a convincing case that “bringing back the bureaucrats”—exerting more direct federal control over some of these programs—would both improve their performance and increase accountability.

Kesler comes neither to praise nor to bury Trump. One could say that he praises him with faint damning.

Kesler’s discussion of Roosevelt’s “Second Bill of Rights” accurately describes the difference between these “programmatic rights” and the natural rights recognized by the Declaration of Independence. Some of his fears are worth noting. But here again, his analysis is one-sided. Kesler presents these programmatic rights largely as Trojan horses allowing foreign pathogens to enter our political culture. What he fails to acknowledge is the extent to which such formulations Americanized and individualized the forces that in other countries produced a far more collectivist understanding of government. He claims that the “entitlements” created by the New Deal and the Great Society “went to organized interests.” Actually, no. What is distinctive about almost all entitlement programs is that they go to individuals, a feature of our polity that has often frustrated those seeking to organize recipients of these programs. Most people think of our largest welfare state program, Social Security, as an individual retirement plan, not a government program. For better or for worse, this has limited its redistributive capacity. The defining feature of an “entitlement” is that it limits administrative discretion by allowing recipients to appeal to courts when they fail to receive what they consider to be legally theirs. Again, there are advantages and disadvantages to these arrangements, but it is undeniable that they are peculiarly American and reflect our unusual constitutional design and our continuing commitment to individual rights.

My point here is that when FDR—and later Lyndon Johnson and Barack Obama—adopted and modified the language of the Declaration and individual rights, they were not simply placing a thin Jeffersonian or Lincolnian veneer on a unified, omnipotent Hegelian State. Rather, they were trying, often quite successfully, to blend old forms and old commitments with new realities—a nationalized, industrial economy; the misery of the Great Depression; the demanding role of the U.S. as leader of the free world; the long-delayed coming-to-terms with the subjugation of African-Americans—and new demands, which they certainly encouraged but did not simply create. Although we should acknowledge the innovations of these heirs of Progressivism, we should also recognize the ways they remained faithful to some basic constitutional principles. Dividing the world into good guys and bad guys may stir up the troops, but it seldom produces adequate political analysis.

And the Ugly: The Conservative Crack-up

The final section of Crisis provides an autopsy of failed conservative efforts to stop the constitutional decay described in Part II. The chapter on “Reagan’s Unfinished Revolution” offers a subtle examination of the dilemmas faced by a president who tries to use Wilsonian means to roll back some of the most troubling features of Wilsonian Progressivism. Kesler argues that in the end, Reagan’s anti-institutional populism and his trust in the good sense of “We the People” overwhelmed his commitment to reviving the Lincolnian Constitution. Reagan’s “was a conservative version of living-constitutional theory, dispensing with social science experts and progressive leaders in favor of business experts and grass-roots leaders who appreciated Americans’ practical genius for freedom.” Another chapter praises George W. Bush’s “revival of natural or human rights as the foundation of political morality,” but faults Bush ’43 for his failure to distinguish “the natural right to be free and the capacity to be free.”

Only in the final two short chapters do we finally encounter Donald J. Trump. Kesler comes neither to praise nor to bury Trump. One could say that he praises him with faint damning. With wonderful understatement he concedes, “There is no shortage of reasons to object to Donald Trump.” He ends the book with this enigmatic sentence: “His good qualities are the quietest part of his presidency.” Keep in mind that for four years, Trump himself was never quiet. It fell to his boosters at Claremont to discover and explain his qualities of greatness.

Kesler’s kid-glove treatment of Trump is particularly surprising in light of his discerning praise of George Washington. In a chapter entitled “Civility and Citizenship,” Kesler provides a stirring celebration of Washington’s character. “There is nothing more distinctive, nor more representative of the founders’ largeness of soul,” he writes, nor “a more reliable guide to civility and citizenship in the American founding, than the words and deeds of General and later President George Washington.” Washington’s combination of restraint, dignity, and civility “stands athwart the modern ethic of self-expression.” “Most importantly, he knew the power of his own example.” Washington urged the leaders of the young republic to “discern the influence which their example as rulers and legislators may have on the body of the people.” All this comes on top of Kesler’s warnings about the dangers of the “rhetorical presidency” instituted by Woodrow Wilson.

It is therefore shocking to see how little concern Kesler shows for Trump’s demagoguery, crudeness, and unprecedented incivility. That Trump might be a bad man, he assures us, does not mean he was a bad president. One of Trump’s chief virtues, Kesler asserts, is his “courage in defense of one’s own.” Yes, Trump had the courage to avoid the draft, and later promote himself by disparaging a man with true courage, John McCain; the courage to insist he won by a landslide an election he clearly lost; the courage to put his personal interest over the protection of liberal democracy. Such is the courage of the narcissist. Another way of putting this is that the man has no shame.

In I Am the Change, Kesler condemned Barack Obama for being a braggart. In Crisis he has little to say about the ludicrous extreme to which Trump took this art. Kesler praises Trump’s “confidence in America’s principles.” But did Trump ever show either an understanding of or a willingness to abide by those principles? He never exhibited any appreciation of the limits on presidential power or the importance of judicial independence or respect for Congress or understanding of federalism. Has any president ever shown such contempt for constitutional forms? Kesler’s silence on these grave flaws is stunning. With Trump, he assures us, “we are not talking tyranny, or treason, or bestial depths of viciousness, or psychological or mental incapacity,” traits that “clearly make for bad rulers and bad presidents.” How about Trump’s willingness to give aid and comfort to a tyrannical enemy—Russia—in order to further his own reelection? How about his unwillingness to read memos on national security threats, or his inability to remember orders he had signed, or his proclivity to announce new policies in impulsive tweets? What about his constant stream of vicious, demeaning comments about anyone who crossed him—even if they had once been his loyal friends?

Why, in other words, has Kesler not joined the Never Trumpers who share many of his larger concerns but are repelled by Trump’s obvious flaws? The answer, Kesler suggests in his final chapter, is simply that Trump is the enemy of his enemies. Trump took great pride and joy in being politically incorrect. He attacked Claremont’s academic foes and appointed its friends to his 1776 Commission. Once you create a picture of a world in which unalloyed good (the Constitution based on natural rights and natural law) and an alien evil (the Progressive project that ends in nihilism) are locked in fierce combat with the former hanging on by a thread, you are already boarding Flight 93. Never mind that the all-too-apparent flaws of your current champion are swelling the ranks of those you most despise. Never mind that this might mean destroying the Constitution in order to save it. It’s now or never, so storm the cockpit!

Even if Kesler’s “meta-narrative” were accurate, it would have been prudent to present it in a way that discourages political allies such as Michael Anton from engaging in rash rhetoric and inciting the type of mob action that so worried Lincoln. But it is not accurate. It exaggerates the virtues of our original constitutional regime and the strength and nefarious motives of its critics. In the process, it delivers conservatism to the very sort of leaders against whom Lincoln and Washington warned us.