Crisis of the Two Constitutions

The Rise, Decline, and Recovery of American Greatness

Charles R. Kesler

• Publisher: Encounter Books
• Year: 2021
• ISBN:
  9781641771030
• Topic: Philosophy
• Subtopic: Political Philosophy

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders' Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their "living Constitution, " a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite. Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America's founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s' New Left to today's unhappy campus nihilists. Finally, the volume appraises American conservatives' efforts, so far unavailing despite many famous victories, to revive the founders' Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.

PART I

THE FOUNDERS’ CONSTITUTION

CHAPTER ONE

THE FOUNDERS AND THE CLASSICS

CONSTITUTIONALISM IN THE UNITED STATES today is often thought to be a matter for the courts, which in the course of deciding cases must often pronounce on the meaning of the Constitution. Indeed, judges are not the least of those who think this way, often being willing to assume the burden of interpreting, enforcing, and updating the Constitution almost alone. Their solicitude might be accepted as noblesse oblige were there more noblesse to it; as it is, the obligations seem to be wholly on the part of the people of the United States, by and for whom the Constitution was made the fundamental law, and not on the part of judges who are sworn to uphold that law.

To this complaint, the liberal members of the judiciary who are not ashamed to be called “judicial activists” might respond that the Constitution’s meaning is not necessarily the same thing as its framers’ intentions, that in any case the framers’ intentions will probably not square with the political agenda of the judges’ contemporary critics, and that the best guide to the meaning of the Constitution today is a moral and political theory that is in touch with today’s conditions, which theory can be found in law schools and in woke philosophy departments. According to this view, it is necessary to add a political theory to the Constitution either because the document itself lacks one (the wording of the Preamble is vague, the meaning of “due process” and “equal protection” is mysterious, and so forth), or because the Constitution’s own theory is antiquated and undemocratic (embodying the eighteenth century’s commitment to the defense of property and to the Lockean or even Hobbesian view of man as irredeemably self-interested).

Strangely, the conservatives’ response to this critique has been not so much to dispute as to celebrate it. They have either agreed that the Constitution contains no theory and in fact stands oppressed to all abstract theories, or have rejoiced in the Constitution’s no-nonsense commitment to the Lockean or Hobbesian view of man – and of Americans – as base but reliable. True, the partisans of judicial restraint do draw opposite conclusions from the same analysis of the Constitution, but there is less to this opposition than meets the eye: the conservatives want laws made by legislative majorities, the activists want judge-made law, but neither side seems to doubt the law is whatever the law-making authority says it is. In short, the premises of both activism and restraint are grounded in a theory of legal positivism, which under the pressure of adapting to changing circumstances becomes either fast-forward or slow-motion historicism

To escape the confines of the contemporary debate therefore requires that we reopen questions so basic that we have long assumed we knew their answers: questions like, “Is there a political theory of the Constitution of the United States?” Before we can take up that inquiry, however, an even more basic one presents itself: Is there such as a thing as political theory? At least according to one great student of constitutions, the answer would seem to be no. For Aristotle, theory, theoria, means observation or contemplation, and particularly the contemplation of the highest things in nature; it is the leisured activity of studying those things which cannot be other than they are, which are not directed to any end that is attainable by action. Theoretical wisdom, he writes, “will contemplate none of the things that will make a man happy (for it is not concerned with any coming-into-being).” Politics, by contrast, is concerned with the human good, with happiness understood as living well in accordance with virtue; justice, the political virtue par excellence, is partly by nature, partly not, yet “all of it is changeable.” “Political theory” would therefore appear to be a contradiction in terms, a combination of the human and changeable with the divine (or suprahuman) and unchangeable. Yet Aristotle does speak of political science and political philosophy, which receive justification and guidance from the fact that, despite the variety of actual regimes, there is “one which is everywhere by nature the best.” Political science is a practical science, whose goal is not to study the things that ought to be done, for the sake of study, but to do them, to teach men to possess and use virtue, to help men to become good. But the good for man is an object of study, even as how best to make men good is an object of study. The union of the two is the culmination of political science as well as the standard of the political art: the idea of the best regime.¹

In the modern understanding of politics, however, political theory is not only possible but inevitable. A product of the revolutionary turn begun by Niccolò Machiavelli and Thomas Hobbes, political theory now means a political science that does not try or does not need to try to make men better and that does not orient itself by the notion of the best regime. It takes men as they are, which is not identical with the way we find them around us, that is, living in families, neighborhoods, and cities in many countries with a variety of forms of government, but rather as they are when they are abstracted from the social and political – what was once seen as the natural – context. When stripped of the accretions of time and the veils of propriety, man is an abstract “self” in (what beginning with Hobbes was called) the state of nature: a self oriented primarily, ineluctably, to its own preservation and interest. Political theory reckons on and only on this fundamental natural impulse or passion, which, precisely because its promptings are universal and efficacious, guarantees that whatever chains of reasoning issue from it will be universally valid and applicable. Therefore, the problem of mediating between the best regime and all, or nearly all, actual regimes – of deciding the relation between the best everywhere and always, and what is best here and now – ceases to be a problem. Prudence or practical wisdom, which was once thought to provide the solution to that problem, is either dismissed as illusory or admitted only as the clever voice of experienced self-interestedness.² In short, it becomes possible to have a theory of politics because there is a universally valid and applicable solution to the problem of politics: the “best regime,” understood now as whatever form of administration best secures men’s life and property, can be made practicable anywhere, hence everywhere.

To determine whether there is a political theory of the American Constitution requires, then, that we bear in mind this ambiguity in the notion of “political theory.” On the one hand, speaking loosely, the term may mean the more theoretical part of the practical science of politics: that combination of the principles of human excellence with the knowledge of how to make men better that distinguishes the idea of the best regime. On the other hand, the term may mean the theoretical science of politics, the universal doctrine based on the knowledge that men ought not and do not have to be made better, which can safely dispense with prudence because it replaces the best regime with itself – with techniques for the manipulation and channeling of human passions. It is important to remind ourselves of the ambiguity within the question, so that we do not presuppose our answer to it. We must be open to the possibility of prudence in the American Constitution and in the American founding more generally. At the least, we ought not to assume that the possibility of practical wisdom has been abolished in the modern world, either by positivist science or by history – not even by the history of modern political philosophy. It is quite possible, as I shall argue, for prudence to use the insights of modern political philosophy for its own ends. The reverse may happen too, but we shall be blind to both possibilities if we assume that the conquest of prudence by theory is inevitable.

For the same reason, we must beware of the perils of what is today called intellectual history, which so often ends by subordinating the intellect to history. For example: according to the Preamble, “We the People of the United States” ordained and established the Constitution, though it was actually written by a few men met in convention on behalf of the people (about which more presently). Neither consideration suggests that there was a preexisting theory to which the people’s or their representatives’ wishes were conformed, or by which they were necessarily guided. Yet it is common to hear that the theory of the Constitution emerged from or was influenced by many preexisting theories – those of Machiavelli, Bacon, Hobbes, Locke, and Montesquieu, among others. This attempt to trace the efficient causes of the Constitution’s theory or principles leads to the following difficulty. On the one hand, if these authorities disagree among themselves on important issues, then the attempt to clarify the Constitution on the basis of their theories would result in obscurity. The Constitution would represent at best an eclectic combination of principles – that is, a combination that could not itself be justified by any principle – and at worst a “bundle of compromises” assembled in explicit opposition to the irreconcilable demands of conflicting theories and interests. On the other hand, if these thinkers agree, per impossibile, on all of the important issues, then the Constitution as a product of this general, not to say monolithic, theoretical agreement would be of only secondary interest. Study of the Constitution would be reduced to that peculiar academic pastime, the “case study.” The conclusion from either direction would be the same: the American Constitution would become an epiphenomenon of theory, that is, of the new political science, which virtually reduces practice to the application of theory. The Constitution would cease to be interesting, inasmuch as it could be studied only as the result of, or as a link in, a chain of efficient causation – of intellectual causation, of “ideology,” to be sure, but an unfreedom in principle no different from the economic determinism peddled by Charles Beard and the Progressive historians.³

The shadows cast by this approach would eventually overwhelm the light of the Constitution. We would be seduced by the play of shadows into forgetting that the Constitution is the product of the Federal Convention’s deliberations, and was ratified by special conventions in the states called to deliberate yet again on the merits of the new plan. But deliberating well is, according to Aristotle, the mark of a prudent man. The Constitution could therefore be said to be a work of prudent men or of prudence, of practical wisdom, not theoretical wisdom. Even as, properly speaking, there can be no theory of prudence, so there can be no theory of the Constitution. This answer would be definitive, except that we cannot assume a priori that the Convention did in fact deliberate well, nor that prudence is in fact self-sufficient and independent of theoretical wisdom. But these considerations do remind us that our attention should be directed toward the men who deliberated over and framed the Constitution, if we are to understand their handiwork. It will not do to construct imaginary chains of influence based on the books these men had or might have read, any more than it will suffice to attribute their thoughts to the spirit of their age. Counting the founders’ citations of particular thinkers is also bound to be misleading, unless the citations are interpreted in the context of the arguments that the founders are advancing. Only then may we say that we begin our efforts to understand the American founding with the way in which the founders understood themselves – rather than with a way in which they could not have understood themselves, the consciousness of their limited historical horizon not having been vouchsafed to them.

Contemporary scholarship appears to be of two minds concerning the founders’ relation to the Classics. It is well established that education in the colonies and in the new nation was anchored, from the primary school to college, in the study of classical languages and literature. By comparison with much instruction in the classics today, this study was serious: it did not regard Greece and Rome as two unusually interesting cultures, an acquaintance with which is mildly diverting and sometimes useful in decoding highbrow literature and middlebrow crossword puzzles. For the founders, instruction in the classics was, to a great extent, the study of living wisdom that happened to have been written centuries ago in different languages. To be sure, some parts of ancient learning had to be rejected or questioned in light of Christian revelation and later discoveries in the sciences, but as guides to logic, rhetoric, ethics, history, politics, poetry, mathematics, and even some parts of theology, the classical writers remained, if not always authoritative, nonetheless principal authorities in the curriculum of schools and of life.⁴

Yet if there is a scholarly consensus on anything regarding the founding, it is that the founding was essentially a modern enterprise. Pamphlets, newspaper articles, sermons, and political debates of the day may have been strewn with classical quotations and allusions, but these must be understood to have been cultural reflexes or examples of forensic showmanship. “The classics … are everywhere in the literature of the Revolution,” Bernard Bailyn writes, “but they are everywhere illustrative, not determinative, of thought. They contributed a vivid vocabulary but not the logic or grammar of thought, a universally respected personification but not the source of political and social beliefs.”⁵ That the source of the founders’ thought is modern, specifically the modern political philosophy of Hobbes, Locke, and Montesquieu, has by now become almost a commonplace, due chiefly to the influential scholarship of Martin Diamond. Although The Federalist “rejects the ‘chains of despotism,’ i.e., the Hobbesian solution to the problem of self-preservation,” Diamond wrote, “it nonetheless seems to accept the Hobbesian statement of the problem.” American liberalism and republicanism, based on the premise of the paramount natural right of self-preservation, are therefore “not the means by which men may ascend to a nobler life; rather they are simply instrumentalities which solve Hobbesian problems in a more moderate manner.” The American regime marks a fundamental break with the premodern tradition. “Other political theories had ranked highly, as objects of government, the nurturing of a particular religion, education, military courage, civic-spiritedness, moderation, individual excellence in the virtues, etc. On all of these The Federalist,” and by implication the American regime, “is silent, or has in mind only pallid versions of the originals, or even seems to speak with contempt.”⁶

The notion that the origins of the American regime are basically Hobbesian or, as it is more often contended, Lockean, has of course been around longer than the essays of Martin Diamond. In one form or another it has been a staple of twentieth-century criticism of the regime: one thinks, for instance, of the widely differing interpretations of Richard Hofstadter, Louis Hartz, and Carl Becker.⁷ Its alleged Lockeanism was in this century employed as an indictment of the regime more often by the Left than by the Right, leaving aside the memorable protest of Aleksandr Solzhenitsyn. In the nineteenth century it was an attack favored more by the Right than the Left, particularly by the bitterenders who defended the positive good of slavery, notably the audacious George Fitzhugh, but also by more elegant critics of modern civilization like Henry Adams. In the lates 1960s a protest against the supposed influence of Locke on the founders blossomed into a whole school of revisionist history. The principal figures of this school are Bernard Bailyn, Gordon Wood, and J.G.A.Pocock, though they are indebted to the previous researches of Zera Fink and Caroline Robbins, and all are beholden to the seminal inquiries of Douglass Adair. Here the argument is that Locke’s influence has been overstated, at the expense of the radical Whig pamphleteers of eighteenth-century England, who were the direct sources of America’s revolutionary doctrines. What His Majesty George III should have taxed, in short, was not American imports of tea but of the ideas of classical republicanism or civic humanism. Still, in the end these dissenters agree with the prevailing interpretations that the Constitution is a work of modern or Lockean political theory, though they maintain that the new science of politics came to prominence only in the 1780s, and only by supplanting the older paradigm of American politics that traced its roots to classical republicanism. The Revolution of 1776 had been made in the name of a virtuous people against a corrupt British Empire. The Constitution, these scholars assert, was made in the name of a modern political theory suited for a modern commercial republic.⁸

The view of the Constitution, or of the founding more generally, as a work inspired by modern political theory is thus not new, but what is new is the extent to which the question of America’s modernity has eclipsed the question of our form of government. As the controversy between ancients and moderns has come to dominate the foreground, the regime question as such, the controversy between republican government and monarchical government, or (to use Tocqueville’s formulation) between democracy an...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Dedication
• Introduction
• Part I: The Founders’ Constitution
• Part II: The Progressives’ Constitution
• Part III: Conservatives and the Two Constitutions
• Acknowledgments
• Notes
• Index