Claremont’s Constitutional Crisis

From the opening pages of Crisis of the 2 Constitutions: The Rise, Decline, and Retrieval of American Greatness, Charles Kesler suggests the civil unrest following the passing of George Floyd in 2020 should be called”the 1619 riots.” As readers of Law & Liberty know, this identifies the New York Times’ controversial”1619 Project,” which asserted that the legitimate founding of the USA came with the arrival of slaves in the usa, maybe not the Revolution or the signing of the Declaration of Independence. Current debates over race, social justice, and civil rights, they concur, raise fundamental questions about the status of the Declaration as well as its own”self-evident truth” which”all men are created equal.”
What, then, if we call the violent assault on the state’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 electioncharge the cockpit or you perish.” Anton urged conservatives to vote Donald Trump since”a Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at the least you can spin the cylinder and take your own chances.” Such gaming is necessary since the country is”headed off a cliff.” Buoyed by votes cast by”the ceaseless importation of all Third World foreigners” (otherwise called immigrants who are naturalized citizens), Democrats are”on the cusp of a permanent victory.” Anton doesn’t advocate violence, but it’s really difficult to see how anybody who agrees with him could fail to appreciate the consequences of his argumentif these systematic corruption contributes to defeat (or, worse, a”steal”) at the surveys, then it is time to control the cockpit of democracy, employing all means necessary.
In a latest CRB post, Anton closely avoids condoning the violence January 6, nevertheless reduces the mayhem and–more significantly –offers a justification for this particular display of”revolutionary spirit.” The 2020 election,” he claims with unjustified certainty, has been stolen. We are currently ruled by”a one-party oligarchy” which”principles by coercion, not consent.” Because this”ruling class has supported Middle America into a corner, so” it is not surprising that the”deplorables” fought back. Anton has provided us a glimpse of the conspiracy theory which prompted a mob of”patriots” to storm the holy citadel of democracy.
To understand the 1619 Project, an individual has to go first into the”critical theory” so popular in the academy now, and finally back to Foucault, Marcuse, and Nietzsche. Likewise tracing the intellectual foundations of Antonism necessarily leads us into the weltanschauung of the Claremont Institute, where Anton is currently a Senior Fellow. As other conservative intellectuals abandoned Trump, the Claremont Institute became the middle of his most devoted intellectual advocates. I suspect that almost all of those affiliated with the Institute will not just accept but celebrate this characterization. No longer was Trump only the least bad alternative. To these, he turned into the savior of American”greatness.”

Kesler is, undoubtedly , the brains of the outfit. He does not participate in the sort of crazy provocation and conspiracy-mongering one sees in some”Claremonsters.” His praise Trump is obviously qualified. His style is calm, scholarly, and frequently ironic. He is a serious student of political philosophy, both historical and modern. As editor of the CRB, he’s constructed a remarkable set of reviewers and let them have their own say. Kesler has never supported Anton’s rhetoric strategy; really, in the Flight 93 essay, Anton criticizes him for failing to embrace Trump.

Nonetheless, since the title of Kesler’s brand new book suggests, it provides the clearest and most thoroughgoing explanation of the political worldview that drives many of people 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, securely wrapped in natural rights and natural law, was replaced by a Progressive constitution based on an understanding of history and progress that finally slips into nihilism. After three amazing waves of Progressivism–evidenced by Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson–the original Constitution is almost gone. It is all up to us to comprehend our plight and participate in the”Retrieval of American Greatness.” As the subtitle suggests, the final chapters present Trump since the improbable agent of the retrieval of the greatest regime. The book’s cover portrays a knight (“We the People”) together with lance and shield in hand, ready to attack the creature (“Living Constitution”) that prevents our great knight from retaking the distant Capitol building. While the artwork would have been commissioned prior to January 6, it’s probably not the very best image under current conditions. However, it does capture an important fact: The debates of Kesler’s book can easily be viewed as a justification for storming the corrupt seat of power in hopes of restoring American greatness.
Kesler clarifies he is not interested in”constitutional law” as understood or taught in law school. Nor is he all that interested in constitutional structures like federalism and separation of forces. His overriding issue is what James Ceaser predicted in his educational 2004 Tocqueville lectures”foundational concepts.” Much like Ceaser, Kesler concentrates on the competing claims of Nature and Background.
In Kesler’s Manichean view of American politics, the country”is torn between two rival civilizations, two constitutions, two ways of life.” In another slouches the”living Constitution” committed to the proposal that our only possible guide comes from Background, which shows us the management of Progress. That pernicious foundational notion has reshaped our public policies, our constitutional arrangements, and our culture as the dawn of the 20th century. Kesler’s central purpose is to clarify the hazards of moving down the road of historicism and also to reinvigorate Nature as the foundation of the republic. All these are important undertakings. Regrettably, in the act, ” he dismisses severe flaws in the American regime, exaggerates the influence of innovative historicism, also constructs a narrative that encourages anti-constitutional extremism.
The Great: The Founder’s Constitution
Part I of Crisis provides a lengthy and frequently complex exploration of the political idea of the Founders and Lincoln. His most striking debate is that our founding was not a uniquely contemporary endeavor –as these serious students of their political idea of the Founders as Martin Diamond, Walter Berns, and Joseph Cropsey have claimed –but a”heretical mix of ancients and moderns.” Since”the goal of American constitutionalism is to create a specific type of human being and citizen,” the”political theory of the American regime can’t be known apart from the political science of the classics.” Here Kesler stands on the back of his Claremont mentor, Harry Jaffa, who claimed Lincoln’s greatness was supposed to increase American liberalism over the”reduced but solid” liberal base attributed to it by scholars ranging from Diamond into Bernard Bailyn. Lincoln, based on Jaffa and Kesler, succeeded in combining modern liberalism with ancient virtue.
Claremont’s”best regime” story serves to deflect attention from some other underlying contradictions or tensions in the American regime which could induce unwanted political change.Kesler is at his most convincing when he reveals how leaders of the young republic arrived to love characteristics of political life which Aristotle understood but modern liberalism had either downplayed or ignored. Naturally, admitting a particular amount of spiritual virtue is required for self-government is a far cry from saying that the intention behind the program is creating virtuous citizens rather than protecting individual rights and liberties. The other Claremontism is that while”enlightened statesmen won’t always be at the helm,” in times of tragedy democratic republics need good men like Lincoln and Churchill. “Greatness” has little if any place in liberal theory. Yet recognizing a republic will sometimes require what Jefferson called organic aristocrats doesn’t turn it in the sort of mixed regime which Aristotle hoped would unite and moderate the rival claims of democrats and aristocrats.
Less convincing is Kesler’s and Jaffa’s chief argument: the American regime remains currently in principle”less than’the ideal regime of Western culture. ”’ Based on them, our initial foundational principles combined disclosure and reason without compromising either. They suspended natural rights in natural law, giving an elevated, ennobled status to individual freedom. They left space in democratic politics for good men, and created amazing men safe for democracy. Sometimes their argument appears to be that these principles were established by Lincoln in his refounding of the regime during the Civil War. At others, it looks like those principles were there all along, waiting to be identified by Lincoln. In any circumstance , the subtleties and attractiveness of the synthesis of reason and revelation, ancient virtue and modern liberty went undetected until rediscovered by Jaffa. It is not simple to comprehend how such a startling, long-unrecognized enhancer left such a enormous imprint on American institutions and ideology.
The arguments of Kesler and Jaffa on this score undoubtedly provide rich material for grad seminars. The answer: a lot. The”best regime” story serves to deflect attention from any underlying contradictions or tensions in the American regime which could drive the political shift Kesler decries. Inverting Lincoln’s dictum in the Lyceum Speech, Kesler suggests the decay of such an outstanding regime could just come from the exterior to wit, foreign concepts of background that deify The State. Before turning to that theme, it’s worth noting some of those regime-based explanations of modification (and decay) which Kesler dismisses his hunt for villains.
Most evident is the battle between American principles and American clinics. Kesler notes this with no fretting too much of it. Dismantling the racial caste system in the South, rectifying the heritage of centuries of racial subordination, also addressing subtle forms of racial discrimination necessitated a vast expansion of national power. The development of the”civil rights state” didn’t emerge from a Hegelian understanding of The State, but from the inherent difficulty of putting into practice the principles of the Treaty as well as the post-war Amendments. Nor was an example of the inexorable growth of bureaucracy: much of the growth of law came from the courts and Congress. Like many others affiliated with the Claremont Institute, Kesler is quick to decry affirmative actions and the”war on poverty,” but unwilling to tackle the deeply rooted problems those flawed measures try to address.
Equally important is Kesler’s failure to admit any of their inherent tensions in our democratic republic. These must be familiar to anybody who analyzes the foundations of the American regime: the battle between our democratic impulses and the preservation of constitutional kinds; the twin hazards of populism and demagoguery about the 1 hand, and plutocracy about another; the propensity of individualism to sabotage the public spiritedness that’s crucial for self-government; the tendency for its”pursuit of happiness” to degenerate into the”joyless quest for joy”; and the numerous ways that demands for equality lead to centralization of administration, culminating in Tocqueville’s”soft despotism.” (It is also worth noting for Tocqueville, it’s the belief in equality–instead of German idealism–which”suggests to the Americans the idea of the perfectibility of man.”) For those like Tocqueville and Diamond who view the American founding as a quintessentially modern undertaking, prudence calls for a delicate balancing act, construction upon the regime’s strengths while recognizing and hammering against its obvious shortcomings.
The Bad: The Progressives’ Constitution
Building upon the analysis in his 2012 book, I’m the Change: Barack Obama and the Crisis of Liberalism, Kesler develops a withering review of the political idea of Woodrow Wilson. Wilson has been the only president to publicly attack the Founders and the Constitution. As Kesler testimonials the blurry abstractions in some of Wilson’s academic writings, one sees the link between these two facts. There may be no doubt that Wilson injected both German historical thinking and a Darwinian understanding of politics into his grandiose political investigation.
Kesler also explores what happens when notions of history and progress lose any feeling of the”end of history,” which is, the ends toward which we’re unknowingly but necessarily led. Those who embrace”advancement” without a standard for distinguishing it from decay engage in dodgy circumlocution, but always end up in one or 2 places. One is a thoroughgoing non-judgmentalism that culminates in political quietism. Another surreptitiously smuggles in criteria of good and bad during the backdoor. A telling example of this comes in Justice William Brennan’s famous 1985 speech extolling the”living constitution.” Brennan combined an extended explanation of why constitutional interpretation has to evolve together with the claim that”the sparkling vision of the supremacy of their dignity of every person” which is”embodied” in the Constitution is not only”deeply moving,” but”timeless.” Brennan’s perception of”liberty and justice for those” may not conform to that of Justice Thomas or Charles Kesler, but he does not deny–really he may not have understood –he needs such a trans-historical base to direct his interpretation of the”living constitution.”
Kesler is less convincing when he moves from a review of Wilson’s political theory to his central debate about its influence on subsequent American political development. He presents Wilson’s progressivism as the very damaging disorder that threatens American greatness. Both great waves of progressive liberalism he motivated have”pervasively reshaped Americans’ hopes of the government and of life.” Together with the ringing of the third wave during the Obama presidency we might eventually see”how revolutionary , fratricidal liberalism could become.” For Kesler, the central dynamic could be summed up in a couple of words: History replaced Nature since the fundamental portion of Americans’ political perception. Before Wilson, Nature prevailed; afterwards Wilson, History slowly triumphed.
It is difficult to envision Andrew Jackson musing about the Phenomenology of Spirit and the Philosophy of Right or to know exactly what a”significantly more democratic” Hegel would look like.The connection between revolutionary innovative concepts and American decrease is not as apparent as Kesler would have us think. The central issue, Kesler explains at the beginning of his chapter on Wilson, is not the applications of the New Freedom or the New Deal, but”the transformed understanding of the goals of government” and”the grounds provided” for them. The crux of the dilemma is more abstract: the millennial standing Wilson bestows upon The State. Yet in his conversation Wilson in I’m the Change, Kesler made this significant concession:”Wilson gave his soul for Hegel, but his tongue into the American voter, that he cautioned the modern State did not rule but’only serves. ”’ In this Americanized, democratized variant, it’s difficult to determine how this State run by expert civil servants differs all that far from Hamilton’s energetic executive. All dark forces lurked in the recesses of Wilson’s”heart,” his influence on American politics put mostly in everything he said and did during his presidential efforts and period . That was not nearly as radical as his academic writing.
During Part II Kesler explores themes produced in Ceaser’s Tocqueville lectures. However, in two different ways, Ceaser’s impressive analysis casts doubt on Kesler’s simple narrative of Background displacing Nature. First, with numerous examples, Ceaser demonstrates that both sorts of arguments have been prominent since ancient times. “Customary background,” particularly its Whig variant, has been a common modern justification for its Revolution than discussions about natural rights. The Federalists accused the Jeffersonians of embracing the idea of the infinite perfectibility of man that put behind the French Revolution’s most extreme manifestations. The Federalists sought to tamp down appeals to natural rights, they recognized could be used to assault positive law, such as the Constitution. The success”second party system,” Ceaser reveals,”is notable for its debut of History for a foundation in American politics.” Both big parties”had each embraced an idea of History in a synthesis with nature.” Whigs, became the”Party of Brain” and Democrats the”Party of Hope” (but maybe not nevertheless Change).
With this Kesler doesn’t seem to disagree. The Jacksonians, he writes, responded to the”danger of Bonapartism by embracing a sort of theory of progress, influenced by Hegel though significantly more democratic.” It is difficult to envision Andrew Jackson musing about the Phenomenology of Spirit and the Philosophy of Right or to know exactly what a”significantly more democratic” Hegel would look like. Nonetheless, it’s apparent that the discussions about natural rights embraced by the Founders and Lincoln never entirely displaced foundational arguments based on history and progress.
Secondly, as Ceaser highlights and Kesler reveals, arguments from Background may take many distinct forms. By any measure, Social Darwinism was a far stronger intellectual force in America at the beginning of the century compared to Hegelian worship of their logical State. Herbert Spencer’s variant”explained the mechanism of advancement by way of a decentralized model in which unintentional action produces a harmonious effect.” The consequent prescription? Laissez-faire economics, using a deep distrust of the logical State. Different permutations of Darwinian thought, Ceaser notes”were used to justify a withdrawal of government from culture (to permit the pure struggle to proceed) and even to establish and fortify racialist decisions of ethnology.”
Kesler nevertheless insists that one particular kind of historical idea formed the basis of the liberal progressivism that corrupted the ideal regime: Hegel’s philosophy of history using its alleged deification of The State administered by expert civil servants. “In most ways,” Kesler composed in I’m the Change, Hegel”set the strangest part of modern American liberalism, although his idea had to become adulterated and democratized before this could occur…. The debt that Progressive idealism made to German idealism was enormous.”
Given the pivotal role Hegel plays in Kesler’s debate, it must be noted exactly how superficial was the understanding of Hegel’s complicated philosophy held from the few Americans who paid any attention . Most academics came in touch with his work through the writing of English Hegelians. Kesler notes “English and German sense of the word” country were”quite opposed to one another.” “Limited government made as little sense into the initial since it made excellent sense to the next.” Far from instructing Teddy to romanticize the”moral state,” Burgess”utilized German state theory… to defend the traditional liberal order which Roosevelt and his Progressive allies could attack.” TR was inspired by the actions of Bismarck compared to words of Hegel. To the extent that TR and his cousin Franklin preferred a stronger federal government, it was since they embraced a traditional American perspective of progress which found government as a force for good in the lives of average citizens.
The most convincing counter to Kesler’s debate about the victory of an extraterrestrial understanding of The State is a clear-headed look at the true arrangement of their peculiar American welfare, regulatory, and civil rights state. Yes, even the national government is large, and growing larger. And appointed officials wield substantial authority within it. However, has this country really”adopted a thoroughgoing centralization of administration”? Hardly.
Even though the U.S. is no longer exceptional in with a small or feeble nation, it remains particular in developing a federal government that’s fragmented, decentralized, judicialized, and handled chiefly through third parties and local and state authorities. Since John DiIulio has emphasized, we’ve delegated an immense quantity of discretion to non-state celebrities in our attempt both to prevent excessive centralization and to conceal the true degree of government. Ours is exactly what Steven Teles calls for a Rube Goldberg-style”kludgeocracy” in which one incremental patch is put on top of another by different celebrities in our fragmented political strategy. As I have discovered in my work on ecological policy, entitlements, and civil rights, the courts have shaped our public policies in a way unimaginable in other western democracies.
Our”administrative state” is far from a Weberian bureaucracy. Our unusual constitutional arrangements coupled with a political culture which unites”ideological conservatism” (above all, distrust of centralized authorities ) using”operational liberalism” (powerful support for established welfare management and state applications ) have generated a uniquely American leadership fashion that could dismay Hegel in addition to Tocqueville. In reality, DiIulio has created a convincing case that”bringing back the bureaucrats”–exerting more direct national control over some of these programs–could both improve their performance and increase accountability.
Kesler comes neither to praise nor to spoil Trump. One could say he praises him with subdued damning.Kesler’s discussion of Roosevelt’s”Second Bill of Rights” correctly describes the gap between these”programmatic rights” and the natural rights recognized by the Declaration of Independence. Some of his fears are worth noting. But here , his analysis is one-sided. Kesler presents these programmatic rights chiefly as Trojan horses letting foreign pathogens to go into our ideology. What he fails to admit is the degree to which such formulas Americanized and individualized the forces which in other countries produced a far more collectivist understanding of government. He claims the”entitlements” created by the New offer and the Great Society”moved into organized interests.” In fact, no. What is distinctive about almost all entitlement programs is they go to people, a feature of our polity that’s frustrated those trying to arrange recipients of these programs. Most people think of our largest welfare state software, Social Security, as a personal retirement program, not a federal application. The defining feature of a”entitlement” is it limits administrative discretion by allowing recipients to appeal to judges whenever they don’t receive what they consider to be lawfully theirs. Again, there are advantages and disadvantages to such arrangements, but it’s undeniable that they’re peculiarly American and reflect our unusual constitutional design and our ongoing commitment to individual rights.
My purpose here is that when FDR–and later Lyndon Johnson and Barack Obama–adopted and altered the language of the Declaration and individual rights, they weren’t simply putting a slender Jeffersonian or Lincolnian veneer onto a unified, Revive Hegelian State. Instead, they had been trying, often fairly successfully, to blend old forms and old commitments with new realities–a nationalized, industrial economy; the misery of the Great Depression; the demanding part of the U.S. as leader of the free world; the long-delayed coming-to-terms together using all the subjugation of all both African-Americans–and fresh needs, they certainly encouraged but did not simply produce. Although we must acknowledge the inventions of these heirs of Progressivism, we must also recognize the ways they stayed faithful to some simple constitutional principles. Dividing the world into good guys and bad guys may stir up the troops, but it seldom produces adequate political evaluation.

The final part of Crisis provides an autopsy of unsuccessful conservative attempts to stop the constitutional decay explained in Part II. The chapter on”Reagan’s Unfinished Revolution” offers a subtle examination of the issues faced by a president who tries to use Wilsonian ways to roll back some of their most troubling features of Wilsonian Progressivism. Kesler asserts that in the end, Reagan’s anti-institutional populism and his trust in the great feeling of”We the People” overwhelmed his devotion to reviving the Lincolnian Constitution. Reagan’s”has been a conservative model of living-constitutional theory, dispensing with social science specialists and innovative leaders in favor of business specialists and grass-roots leaders who appreciated Americans’ sensible genius for freedom.” Still another chapter praises George W. Bush’s”resurrection of human or natural rights as the basis of ideology,” but flaws Bush ’43 for his failure to differentiate”the natural right to become free and the ability to be free.”
Only in the final two short chapters do we eventually encounter Donald J. Trump. Kesler comes neither to praise nor to spoil Trump. With amazing understatement he admits,”There is no shortage of reasons to object to Donald Trump.” He ends the book with this sentence:”His great qualities are the quietest aspect of his presidency.” Bear in mind for four decades, Trump himself was never quiet. It fell to his boosters at Claremont to discover and explain his attributes of bliss.
Kesler’s kid-glove remedy of Trump is very astonishing in light of his special praise of George Washington. In a chapter entitled”Civility and Citizenship,” Kesler provides a stirring celebration of Washington’s personality. “There is not anything more distinctive, nor more representative of their creators’ largeness of spirit,” he writes, nor”a reliable guide to civility and citizenship in the American founding, compared to words and deeds of General and after President George Washington.” “Most importantly, he understood the power of their own example.” Washington advocated the leaders of the young republic to”discern the influence which their example rulers and legislators could have about the body of the people.” This comes together with Kesler’s warnings about the hazards of the”rhetorical presidency” instituted by Woodrow Wilson.
It is therefore shocking to learn how little issue Kesler reveals for Trump’s demagoguery, crudeness, and unprecedented incivility. That Trump might be a terrible man, he assures us, does not mean he was a terrible president. Yes, Trump had the guts to avoid the draft, and later promote himself by disparaging a man with true courage, John McCain; the guts to insist he won by a landslide an election he obviously dropped; the guts to put his personal interest over the protection of liberal democracy. Such is the guts of their narcissist. Another way of putting this is that the man has no shame.
In Crisis he’s little to say about the ridiculous intense to which Trump took this artwork. Kesler praises Trump’s”confidence in America’s principles.” However, did Trump ever reveal either an understanding of a willingness to stick with these principles? He never revealed any grasp of the constraints on presidential power or the importance of judicial autonomy or esteem for Congress or understanding of federalism. Has any president ever shown such contempt for constitutional types? Kesler’s silence on these types of grave defects is stunning. With Trump, he assures us”we aren’t talking tyranny, or treason, or bestial depths of viciousness, or psychological or emotional incapacity,” traits which”clearly result in bad rulers and bad presidents.” How about Trump’s willingness to give support and comfort to some tyrannical enemy–Russia–to be able to further his own reelection? What about his unwillingness to read memos on domestic security threats, or his inability to recall orders he’d signed, or his proclivity to declare new policies in spontaneous tweets? What about his continuous flow of vicious, demeaning remarks about anybody who crossed him–even when they had once been his faithful buddies?
In other words, has Kesler not joined the Never Trumpers who share lots of his bigger questions but are repelled by Trump’s apparent flaws? The answer, Kesler suggests in his final thing, is simply that Trump is the enemy of his opponents. Trump took great pride and joy in being politically wrong. When you create an image 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 battle with the former hanging on by a thread, and you’re already boarding Flight 93. Never mind the all-too-apparent defects of your present champion are swelling the ranks of the ones you most despise. Never forget that this may mean ruining the Constitution so as to save it. It’s now or never, therefore storm the cockpit!
Even if Kesler’s”meta-narrative” were true, it might have been wise to present it in a manner that discourages political allies like Michael Anton from participating in rash rhetoric and inciting the sort of mob actions that so worried Lincoln. Nonetheless, it is not accurate. It exaggerates the merits of the original constitutional regime along with the strength and nefarious motives of its critics. In the process, it delivers conservatism into the sort of leaders against whom Lincoln and Washington cautioned.