Crisis of the Two Constitutions:
The Rise, Decline, and Recovery of American Greatness
by charles r. kesler
encounter, 488 pages, $34.99
Speaking to a Baltimore audience in 1864, Abraham Lincoln made an observation that remains uncomfortably true today. “The world has never had a good definition of the word liberty,” he said, “and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing.”
Lincoln had two ideas of liberty in mind. The first, true liberty, is man’s freedom to choose in accord with the moral law. Lincoln contrasted this true liberty with its corruption, “license”—of a most peculiar sort. In his day the license that some called liberty had come to mean the right “for some men to do as they please with other men, and the product of other men’s labor.”
As Lincon saw, these conflicting understandings of liberty had called into being opposed customs, institutions, and laws. That was the theme of his justly famous “House Divided” speech in 1858. Lincoln depicted North and South as different social worlds suffused by rival accounts of justice. These differing political cultures—different regimes, really—were based on incompatible conceptions of liberty.
Lincoln is a recurring focus of Charles Kesler’s learned and timely new book, Crisis of the Two Constitutions. Kesler turns to him because Lincoln possessed a profound understanding of the American Constitution and because Lincoln spoke more eloquently than anyone else ever has about the central theme of the book: the fact that the United States was founded on universal principles of justice “applicable to all men and all times.”
Lincoln was also able to recognize when those principles were gravely imperiled, as they are today. Kesler warns that “Americans may be leaving the world of normal politics,” wherein the basics of the constitutional order are agreed upon, “and entering the dangerous world of regime politics,” wherein they are not: “Our political loyalties diverge more and more, as they did in the 1850s, between two contrary visions of what constitutes the country.” Disturbing as this is, it should not be altogether surprising. As Kesler notes, “every republic eventually faces what might be called the Weimar problem”—the inevitable breakdown of the regime. Have we arrived at our Weimar moment?Not yet, according to Kesler. But “it is not too early to wonder.”
Some readers might be thinking that Kesler’s images are too alarming, his rhetoric overheated.
Not this reader.
To address this crisis, Kesler calls for a recovery of the principles Lincoln held dear, which include “permanent standards of right and wrong that were valid for human beings as such.” Kesler calls these the “principles of the Revolution.” He is interested in them not only because they were offered as justifications for our war for independence, but because they are true.
Though Kesler speaks of “two constitutions,” this book is not about constitutional law. Most federal court decisions do not touch the fundamental issues with which Kesler is concerned, and Kesler does not tell us how moral truths—those “permanent standards of right and wrong”—are to be integrated into judicial interpretation of the Constitution. But Kesler’s argument supports Hadley Arkes’s longstanding contention that we cannot have a morally indifferent jurisprudence. If natural law and natural rights are our nation’s founding “principles,” moral truths must shape constitutional interpretation.
Unlike some who speak of America as a nation of principle, Kesler is realistic. He acknowledges that President George W. Bush championed the American creed, seeking like Lincoln a “revival of natural or human rights as the foundation of political morality.” This was the most stirring element of the Bush doctrine. “It is mistaken, and condescending,” Bush said in his 2004 State of the Union Address, “to assume that whole cultures and great religions are incompatible with liberty and self-government.”
Yet as Kesler observes, there was in Bush’s invocation of universal right “a certain ambiguity or confusion between the natural right to be free and the capacity to be free.” Everyone has a potential capacity to be free, but “this potential needs to be made actual, needs to be awakened by practice and habit.” Democracy is a cultural achievement, as well as a political form. It is not enough to proclaim, or abstractly accept, certain ideas. They must be made real in the life of a people.
Kesler rejects the idea that America’s present problems are the inevitable result of a bad founding. Yes, the founders separated Church from state and guaranteed everyone freedom of worship—but they did so without secularizing public or private life. He rightly emphasizes that religion remained public, as a crucial component of the polity’s temporal common good. A widespread consensus on basic moral norms completed the republican framework. Kesler presents the founding as a synthesis: “Protestant Christianity, classical republicanism, and traditional British constitutional arguments all played important parts in the [Revolutionary] drama, but each of these received a new spin from the Americans’ understanding of natural justice.”
Kesler’s treatment of religion and the founding could be improved, in my judgment, if it distinguished more sharply between revealed religion and what men can reliably know about divine matters by dint of reason operating upon data and experience available to all. His account could be improved, in other words, by moving natural religion to the center of the republican experiment, which is where the founders located it.
Today the American house is once again divided between two rival conceptions of liberty. The dominant idea of liberty has replaced universal truth with “values” in the private sphere and relativism in the public realm. It is embodied in the “expressive” self that the Supreme Court canonized in 1992: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This liberty is mere license.
The other liberty is the sort promoted by Lincoln and the founders. It is each person’s virtue. It is character molded by free choices to pursue the good, and to be truly good. It is adherence to natural law and respect of natural rights. But it is more. It is personal government braided with collective self-government. It includes each citizen’s participation in civic affairs and contribution to the success of the polity. Call this “republican liberty.”
Kesler does not make the familiar claim that republican government presupposes a virtuous citizenry. This suggests that the form of government rests upon popular virtue, where virtue is both conceptually and practically independent of the governmental form. It implies that without the requisite virtue, the constitutional system will falter. It implies nothing about virtue withering as the constitution decays. Kesler argues that virtue and political form depend on each other. If you subvert the constitutional order, popular virtue will be undermined, too.
Contemporary America does not present even a facsimile of self-government by and through our elected representatives. We are instead managed, manipulated, and sometimes dictated to by an unaccountable fourth branch, an unelected third branch, and a spectacularly empowered second branch. Lurking somewhere outside this phalanx is the colossus du jour, the CDC.
Kesler argues that we were brought to this pass by “three waves” of liberalism. The first was progressivism, exemplified by Woodrow Wilson. Wilson was the most notable progressive advocate of the living Constitution that “transformed the [American] creed, once based on timeless or universal truths, into an evolving doctrine.” Notwithstanding Wilson’s deserved reputation for high-minded and occasionally messianic rhetoric, he was fundamentally a historicist with little patience for immutable principles of morality or justice.
The second wave is represented by Franklin D. Roosevelt. His New Deal welfare policies begat nothing less than a “second bill of rights,” a set of socio-economic entitlements that culminated in Johnson’s Great Society. Kesler neatly captures LBJ’s own messianism. After his 1964 election, Johnson declared: “These are the most hopeful times in all the years since Christ was born in Bethlehem.”
This utopianism morphed into the third wave of liberalism. Barack Obama represented the triumph of multiculturalism and identity politics over American liberty. Kesler quotes Obama’s claim in The Audacity of Hope: “Implicit in [the Constitution’s] structure, in the very idea of ordered liberty, was a rejection of absolute truth.”
Kesler’s prescription is clear. It is “a reborn American conservatism, based on the principles of the American Revolution.” He anticipates the criticism that he is overlooking America’s manifold sins through the ages. For him, the question is not “whether the United States ever fell short of its moral and political principles—it did, of course, many times—but what those principles were in the first place, and whether they are worthy of respect and allegiance.” He laments that American conservatives “avoid arguing about questions of justice whenever possible.” This means that they in fact “eschew politics (whose central issue is justice).”
The most serious exponents of American conservatism—Henry Cabot Lodge, Elihu Root, William Howard Taft, Calvin Coolidge, George Sutherland—were renowned statesmen and judges. “By and large,” Kesler notes, “these men were legal or constitutional thinkers, a strength that was also their weakness.” He concludes that these “eminent practitioners were unable to face down the philosophical challenges to the order they loved so well.”
A Brooklyn upbringing makes me say it: These men brought knives to a gunfight.
The reborn conservatism which Kesler calls for is not the conservatism of Kirk or Burke, of Buckley or Burnham, of Goldwater or Reagan. Neither paleo- nor neo- will do. It is not the “traditionalist” democracy of the dead (“historical majoritarianism”).
Indeed, anchoring constitutional renewal in our “values,” our “culture,” our “tradition,” or really our anything will not do. The key criterion is not possessory. It is critical, normative, a matter of what is true. One needs some “creed”—a set of justified beliefs, not just a recitation of our tribe’s touchstones—to make full sense of and to evaluate any culture. Kesler: “I mean creed, not merely in the sense of things believed (sidestepping whether they are true or not), but in the sense of moral principles or genuine moral-political knowledge.”
A different book written for a different time would offer one or two cheers for culture and tradition and other contingent but nonetheless organizing features of our common life. That book would recognize the great value of rallying diverse elements of the American community around determinate symbols, historical events, activities, and persons—around the flag, Valley Forge, baseball, and, well, Lincoln. At some other point in our history, constitutional law could flourish without the philosophy that Taft lacked and that today’s dominant “originalism” eschews.
Crisis is not that book because ours is not that time. In Crisis Charles Kesler faces unafraid America’s Weimar moment. He is unapologetically keen to excavate and to restore the crumbled bases of the American republic. They are worth refurbishing, not because they tug at the mystic chords of our memory or represent the faith of our fathers, but because they are true. In Crisis of the Two Constitutions Kesler relentlessly pursues this question where it leads, all the way to universal truths, enduring standards of right and wrong for all places and times. As he should. For when the foundation of the house is collapsing, there is nothing else to do but to shore it up with material that can bear the weight, and that will last.
Gerard V. Bradley is professor of law at the University of Notre Dame.
