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Salvo 05.10.2021 15 minutes

America’s Constitutional Crisis

US-POLITICS-BIDEN

Two regimes cannot coexist in the same nation.

Editors’ Note

The following article first appeared in Law & Liberty.

Law & Liberty turned over a lot of space (“Claremont’s Constitutional Crisis,” March 29) to Shep Melnick’s review of my recent book. I wish he had made better use of it. Looking over the dozen pieces he has written for me over the years at the Claremont Review of Books, I find a sobriety and balance that he seemed to misplace in this one.

Perhaps it’s because he can’t help illustrating the thesis of Crisis of the Two Constitutions even as he deprecates it: that American politics grows embittered because it is increasingly torn between two rival constitutions, cultures, and accounts of justice. At any rate, I shall return the favor by asking Law & Liberty for considerable space myself.

It helps to know who is reviewing whom, and why. Melnick has been a liberal Democrat since he was simultaneously a graduate student at Harvard and an elected Democratic member of the New Hampshire House of Representatives. He is—you can’t make this stuff up—the Tip O’Neill Professor of American Politics. (Young readers: Tip O’Neill, a long-serving Democratic Speaker of the U.S. House, was Ronald Reagan’s bête noire.) But today’s Democrats are far to the left of where their party was a generation ago, or even a decade ago; though they can’t blame that on Donald Trump, they will try.

Melnick is, regrettably, no exception. Though he used to be a discerning critic of Right and Left, his loathing for Donald Trump is so fierce it cannot be moderated or disguised, and it distorts his reading of this book and of America’s whole political situation. His argument is threefold: (1) there are “serious flaws in the American regime” that I ignore; (2) the influence of “progressive historicism” is not as baneful as I claim; and most dramatically, (3) the book as a whole “constructs a narrative that encourages anti-constitutional extremism” à la Trump. The three are connected. Because I have too high an opinion of the founding, Melnick asserts, I take too negative a view of progressivism, and end up imagining a crisis where none exists—thereby helping actually to create one.

He goes quite far, or should I say low: “The arguments of Kesler’s book,” he charges, “can easily be read as a justification for storming the corrupted seat of power in hopes of restoring American greatness.” “Easily”? Stupidly, maybe. But at least Melnick understands what is at stake, that our understanding of the American present turns partly on our interpretation of the American past. Is there a real possibility of a crisis in our politics, or not?

The “Best Regime Narrative”

To begin with, what are those “serious flaws in the American regime” I supposedly ignore? He is too scholarly to fall for the Left’s “systemic racism” line, recently endorsed by the New York Times in its 1619 Project. He won’t dive into waters whose bottom neither he nor anyone else can see. But he doesn’t mind getting his feet wet. Without saying yea or nay to the 1619 business, Melnick chides me for my reluctance to address the “deeply rooted problems” of racism, inequality, and poverty. Unlike Nikole Hannah-Jones, however, he blames those problems not on America’s principles but on the difficulty of living up to those principles. I much prefer his formulation. In fact, the difficulty of living up to American principles is one theme of the book, running through its multiple discussions of slavery and racial justice, of founding and maintaining constitutional forms, of exporting democracy, and of American conservatism’s dilemmas in dealing with the modern state. So, then, why is he arguing with me rather than with her? I need to “fret” more about deeply rooted problems, apparently.

In addition to those “serious flaws in the American regime” which every modern liberal must stress (racism, inequality, poverty), Melnick cites others like demagoguery and majority tyranny, familiar to readers of Madison, Tocqueville, and Lincoln. Melnick thinks the book downplays these real and potential flaws, too, not because these aren’t discussed (they are, extensively) but for the curious reason that they are discussed in the context of a vigorous defense of the founders’ principles and a high-minded case for the country’s greatness. For example, he doubts Harry V. Jaffa’s argument (which I adopt in places) that the American founding, with its separation of church and state, alongside its union of religion and politics in a limited consensus on morality, amounts to what Jaffa termed “the best regime of Western civilization.” Fair enough, but Melnick doesn’t credit Jaffa’s immediate qualification of the argument. As I expressed the point in the book, Jaffa “is describing a regime in speech, as articulated by Lincoln and the founders.” That there were, and are, serious flaws in the American regime’s practices—and in the understanding of its own principles—has never been denied by Jaffa, by me, or by anyone serious.

Melnick manhandles this philosophical argument into what he calls “the ‘best regime’ narrative,” which he says I employ “to deflect attention from any inherent contradictions or tensions in the American regime that could drive the political change Kesler decries.” He alleges, in effect, that I try to turn the founders into saintly makers of a political community so excellent, satisfying all the requirements of ancient virtue and modern liberty, that it should have lasted forever or at least for a long time. In Melnick’s words, “the decay of such an excellent regime could only” have come about “from the outside,” and that’s the twisted conceit he wants to pin on me: that I depict a world in which the “unalloyed good” of the Constitution confronts the “alien evil” of progressivism. The indictment, however strained, would at least be plausible if the progressives had been themselves foreigners or immigrants, rather than a crowd of well-educated college grads who could be quite suspicious of immigrants; and if the progressives had not looked at the founders’ Constitution as itself a sort of “alien evil” from another land, the dead past, versus the “unalloyed good” of their future constitution.

Besides, and this is the crucial point, for the book’s argument to work the founders’ Constitution doesn’t have to be the best regime or an unalloyed good; it only has to be a much, much better regime with a much truer grasp of human nature and its virtues and vices than the progressives’ constitution can boast. Nor does the original Constitution have to be, as Melnick also claims on my behalf, a “near-perfect synthesis of reason and revelation….” It is not. A synthesis would be a tertium quid, incorporating, nullifying, and transcending the thesis and antithesis. That isn’t the American founding. (Who is importing Hegel now?) The founding’s glory, or part of it, came from allowing the coexistence of the claims of reason and revelation, and their fruitful cooperation in a common moral-political teaching—what Tocqueville described as the intimate union (not transcendence) of the spirit of religion and the spirit of freedom. To be sure, no Western regime before it had managed to figure that out and write it into a Constitution.

Like Plato, Aristotle, and Cicero, the founders were worried about good government’s transience, how easily and quickly it could decay and pass out of existence. It had to win its wars, of course, to survive; but it was internal corruption they feared most, the kind that came from the errant passions, ambitions, and opinions of the citizens themselves. One of the deadliest dangers they diagnosed, in any regime, was decay in the citizen’s and statesmen’s belief in the goodness or justice of their own arrangements. That was usually the beginning of the end.

In addition to the “auxiliary precautions” expounded in The Federalist, the founders—Franklin, Washington, Jefferson, Madison, and others—prescribed, therefore, systems of public education and patriotic commemoration to help inculcate those truths and virtues that would promote happiness and good government for future generations of Americans. Such civic and moral education was a vital part of the founders’ extended Constitutional regime, as important as the governmental institutions themselves—that was Lincoln’s point, already pressed by the founding generation. They already knew that “low” was not sufficiently “solid,” and that “solid” was not always good enough. I break ranks, perhaps, with Martin Diamond, Gordon S. Wood, Patrick Deneen, and other scholars in holding that The Federalist itself was meant to be part of that education.

The progressives set out to undo this education, and to replace it with a new one. They taught Americans to doubt their premises, to scorn the moral and political goodness of the Constitutional order. Events, too, of course, like the Civil War and Reconstruction, exposed significant chinks in American principles and self-confidence, but the progressives were the first—since the Confederates—to have a comprehensive theory intended to supplant many of the founders’ basic moral and political assumptions and conclusions.

Modern liberals do their part to cancel any suggestion that the American regime, especially its principles, might be good—for its citizens and for the cause of humanity. “Serious flaws” is their mantra whenever they meditate on 1776 and 1787. Whether starting from the premise of the founding’s systemic racism, sexism, egoism, or capitalism, today’s liberals see nowhere for such a regime to go but down, just like its heroes’ statues. But they offer an alternative: transformation.

The Progressive Victory

The ancients would not have been surprised if foreign deities, habits, and rhetorical and philosophical teachings had played a role in undermining citizens’ faith in their own way of life. In our case, the ideas of Hegel, Marx, Herbert Spencer, Charles Darwin, Walter Bagehot, Auguste Comte, and many others played such a role. Nor did the bad ideas have to come from abroad. Pragmatism was homegrown, though a newly acquired taste. And this was no covert conspiracy: this generation was proud of its novel ideas, and candid, usually, about where they came from.

Accordingly, the reader will find there is much less about Hegel and “the unified, omnipotent Hegelian State” in my book than Melnick’s review claims. That too is mostly exaggeration for the sake of his own “narrative.” Hegel’s influence, which is what Melnick fastens on because it seems most “foreign” to him, had already been watered down or modified by several generations of interpreters. And besides, to the extent they followed his example as opposed to his precepts, his American followers found “the rational in the real” of their own day: they presumed their “living constitution” was alive precisely because it had transcended, or represented the latest and highest version of, Hegel’s own rational State, not to mention the U.S. Constitution.

Melnick thinks I exaggerate the dangerous tendencies of modern liberalism or progressivism. Yet he himself admits the radicalism of Woodrow Wilson’s “academic writing.” “There can be no doubt,” he writes, “that Wilson injected both German historical thinking and a Darwinian understanding of politics into his grandiose political analysis.” But he calls Wilson’s practice as a politician “not nearly as radical.” Perhaps, but then Melnick doesn’t mention, for example, Wilson’s “War Socialism,” his scientific racism, or his enthusiastic crackdown on political expression. Besides, there is considerable overlap between Wilson’s academic pronouncements and his political speeches. On separate occasions he told Princeton undergrads and American voters, for example, that the purpose of education, as of life, was “to make the young gentlemen of the rising generation as unlike their fathers as possible.” He meant their founding fathers, too.

Melnick complains that I neglect the messy, complicated business of how the U.S. actually built its national government, which, as he describes it, “is fragmented, decentralized, judicialized, and administered primarily through third parties and state and local governments.” He has told this story well in his own books. But with all due respect, I interpret it differently, not as a refutation but as a kind of illustration of my thesis. This unique, unplanned sort of government, a “kludgeocracy,” as Steven Teles calls it, in which Americans retain a less gargantuan but more untidy central government than other advanced countries by subcontracting it out—and by refusing to prune it of failed and redundant programs—was admittedly not Wilson’s, or Franklin Roosevelt’s, or LBJ’s ideal. It was no one’s plan or design. It was produced, at least in part, out of the clash and conflict of two contradictory constitutional ideals, two divergent accounts of rights and government powers. It is neither one nor the other, but a product of their straining and jostling.

Melnick’s account of the competition between the two regimes is a bit of a kludge itself. At first, he asserts my argument holds that the founders’ Constitution “has been replaced” by the progressives’. Later on, he writes that the founders’ Constitution stands “in one corner” of the ring and the other “slouches” opposite it. But my argument cannot be that the progressives have won and the old Constitution “has been replaced”—else there could be no crisis or decisive moment coming, and a fortiori no “crisis of the two constitutions.” In the opening chapter I speculate on five possible ways that such a turning point might be reached, for heaven’s sake.

My position is that a crisis or turning point is likely to come but has not yet come (and that chance will play a role in it), that the founders’ Constitution is in decline, and that the conflicts and contradictions between the two (e.g., between separation of powers and administrative centralization) have resulted in constitutional deformations threatening not only popular government but also good government. The moment of crisis might come over a disputed election, a repugnant Supreme Court decision, a military debacle, or some other shock or indignity. It’s unpredictable, but in the meantime everything depends on the vectors of political change. Which constitution is waxing, and which is waning? In what respects, and to what extent? Melnick here shows almost no interest in these crucial matters, in appraising the overall direction and significance of political change. (There are, doubtless, plenty of changes whose causes are local, so to speak, but that still carry regime implications. It’s the difference between efficient causes, on the one hand, and formal and final causes, on the other.) At some point it becomes necessary to ask, when is the political community or the country the same and when is it different?

He leaves it at repeating the progressives’ own explanation for their innovations. They were “trying, often quite successfully, to blend old forms and old commitments with new realities.” Wilson and FDR could not have said it better. Melnick implies that something like the three waves of liberalism was bound to happen, given the dominance of material and efficient causes in politics, given the inevitability of those unceasing “new realities.” But it’s not something to get concerned about, much less to vote against. It’s modern government.

Against that lullaby of inevitability, I emphasize that liberalism’s rise was mostly a tale of conflict and choice, a rolling revolution in three waves (and counting) that gave birth to a progressive or “living” constitution, meant to evolve readily with the times; followed by a new bill of rights (what FDR called the Second Bill of Rights, also “living” as opposed to formally adopted as amendments) requiring a “welfare state” to realize the new welfare rights; and finally another bill of rights, the third, in effect, which began to arrive in the 1960s and has evolved apace, enshrining the right to one’s own values, gender, meaning, identity, and all the illimitable powers of government appertaining thereto.

That’s putting it schematically, of course, but I think it’s clarifying. The point was gradually to transfer the authority and legitimacy of the founders’ Constitution to the progressives’ one. The former Constitution was meant to be higher or fundamental law, setting the bounds of the government. In the latter, the government (in the broadest sense of however the American people will to be governed nowadays) was meant to mark the bounds of the constitution. Natural or God-given rights were to be switched out for man- or State-made rights. Judging from the pattern of our elections since the 1960s—a long stalemate, in many respects—the American people have never agreed to this revolution, but neither have they rejected it. Hence our predicament.

Incidentally, none of this is meant to deny, or diminish, the continuing relevance of Tocqueville’s diagnoses of the ills to which democratic flesh is heir. Most of the dangers he identified were used by 20th and 21st century progressives as excuses for federal government remedies, which as Tocqueville predicted only made the diseases worse. Thus individualism (in his sense) became the excuse for a new collectivism, and demagoguery and the omnipotence of the majority (bad things) were rebaptized as leadership and the Spirit of the Age (good things). As John Wettergreen, John Marini, and others have shown, unscientific or decentralized administration became the occasion for an unending effort to centralize administration in Washington. Worst of all, the progressives perverted liberal-arts higher education from being an important Tocquevillian remedy for our democratic distempers, to being the chief instigator of and apologist for them.

Melnick cautions, sententiously, that “Dividing the world into good guys and bad guys may stir up the troops, but it seldom produces adequate political analysis.”

Granted, but it is also true, and a more important truth, that no adequate political analysis can be made without taking into account good and bad, right and wrong. Melnick once might have admitted how far, and how fast, American politics is moving left. Surely it is relevant to political analysis that progressive causes now include packing (again) the Supreme Court, eroding the Senate filibuster, abolishing or effectively abolishing the Electoral College, statehood for the District of Columbia, an epidemic of emergency powers and executive orders at all levels of government, the revival of “socialism” (never far from progressive “democracy”) as a moral, political, and economic possibility for America, the expungement of American history as systemically racist and oppressive, the contraction of religious liberty and especially of public expression of commonsense morality, unending affirmative action with negative implications for colorblind law, and a Woke, “antiracist” revolution to proscribe Politically Incorrect words, opinions, and people, which revolution threatens to turn our republican government into a race-based oligarchy.

Only an adequate political analysis of these developments could, I’m afraid, reveal what is good and bad in our politics today. No doubt it would also “stir up the troops,” previously called citizens.

An Offense against Constitutional Order

Which brings me, finally, to the matter of Donald Trump. After chastising me for dividing the world into good guys and bad guys, Melnick makes a few mild-mannered, nonjudgmental observations about Trump’s “demagoguery, crudeness, and unprecedented incivility,” his “constant stream of vicious, demeaning comments,” his repellent, obvious, and “grave flaws.” Trump “never appreciated any limits on presidential power or the importance of judicial independence” and no president ever showed “such contempt for constitutional forms.” Why, he even gave “aid and comfort to a tyrannical enemy—Russia—in order to further his own reelection.”

Russia again! Talk about an idée fixe. As for Trump’s alleged contempt for constitutional forms, his disdain was directed overwhelmingly at the norms and pieties of the progressive constitution, not at the founders’ Constitution. Probably no president dealt with as many adverse (and partisan) federal court orders as did he. His own Justice Department and intelligence services were in open rebellion against his administration and he responded mostly with… angry tweets, which, though annoying to many including Twitter (the website eventually banned him), were hardly illegal. On the positive side, his judicial and regulatory appointments included savvy critics of the administrative state, keen to shore up the separation of powers against the mining and sapping of the progressives. He refused to abandon federalism in offering Covid relief. His fidelity to the Constitution extended also to his opposition (and for a while he stood almost alone) to the mobs that were burning businesses and police stations and defiling statues of Lincoln, Frederick Douglass, and other American heroes. He put a stop to Critical Race Theory indoctrinations in administrative agencies, and appointed the 1776 Commission to try to persuade his countrymen to restore to American schools a history and civics curriculum of intelligent patriotism, as opposed to the tendentious falsehoods of the 1619 curriculum. Trump was not ashamed to love and defend his country loudly, passionately, and imperfectly. If judged by a political science professor’s standards, he may have been unschooled in the founders’ Constitution; but he was more faithful to it than most such professors.

Trump was no George Washington, as Melnick sagely observes, pointing to my chapter on our first president. But George Washington wasn’t on the ballot. Hillary Clinton was, and then Biden. That made Trump the right man for these difficult times, though perhaps for none other. But he harmed his own cause after the 2020 election, and his country’s, too.

The Capitol Hill riot on January 6 was Trump’s low point, prepared by a descent after Election Day into a desperate effort to revise the results, without persuasive evidence or argument. It leads Melnick to a low point, too, as I noted: the smear that “the arguments of Kesler’s book can easily be read as a justification” for January 6. He blames the Claremont Institute’s “weltanschauung,” also, for good measure, proposing a parallel between Nikole Hannah-Jones’s endorsement of the 2020 riots, and Claremont’s alleged approval (or meta-incitement) of this year’s January 6 riot. So let’s compare them.

In response to my op-ed in the New York Post daring the New York Times to own up to last year’s rolling disturbances and statue defacements as “the 1619 riots,” Hannah-Jones tweeted: “It would be an honor. Thank you.”

In response to the Capitol Hill riot, I wrote soon after (January 29) in the Claremont Review of Books: “No citizen, no constitutionalist, no conservative could regard that day’s outrages with anything but dismay and indignation…. [The riot was] a flagrant offense against the constitutional order.”

I don’t see the parallel. Nor do I see in Melnick’s review any acknowledgment of my essay condemning the riot (though he alludes to another essay from the same issue). I wonder why not?

Melnick can’t bring himself to say I intended the book to be insurrectionary; besides, Crisis of the Two Constitutions appeared more than a month after the Capitol Hill riot. Nor can he identify anyone who was moved to break the law by the Claremont Institute’s various writings. You could call it guilt by association except that he doesn’t try to prove any association. His slur doesn’t even rise to the level of “a lot of people are saying….” And like many people in each camp these days, he proceeds to run down the intelligence of his political foes. Melnick says or implies that the Claremont Institute’s scholars and readers lack, well, “brains” and are easily misled. This is just lazy condescension.

Shep Melnick’s review illustrates, alas, the wide and widening gulf between our two constitutions and between their partisans, drawing further and further apart from one another, endangering the country we all ought to love.

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