Charles Kesler traces America’s constitutional divide through two clashing frameworks: the Founders’ fixed principles—rooted in 1787 and human nature—and the Progressive "Living Constitution," reshaped by Wilsonian liberalism via courts and bureaucracy. The 1960s marked a turning point, as liberals abandoned compromise, accelerating a "rolling revolution" where federalism’s potential for state-level divergence (e.g., Utah vs. New York) is undermined by centralized rights like welfare and identity politics. Kesler warns of escalation risks—disputed elections or Supreme Court defiance—but finds slim hope in bipartisan pushback, like California’s Prop 209 rejection of racial quotas, hinting at a fragile "raffle-small" around shared patriotism, despite Reagan’s and Trump’s failed institutionalization efforts. [Automatically generated summary]
As you know, we always like to bring eloquent and elegant intellectuals on in a desperate attempt to raise the tone of the show.
But this week we hit the jackpot.
Charles Kessler is one of the finest writers on the conservative side and one of the wisest.
He's a senior fellow of the Claremont Institute, editor of the Claremont Review of Books, host of Claremont's The American Mind video series, and the Dengler Dykema Distinguished Professor of Government at Claremont McKenna College.
Also, he is the employer of my son, Spencer Clavin, no relation.
And the only way we could get him on was by holding Spencer hostage so we can now release him.
Charles, are you there?
Yes, I am.
Thank you.
And let me say also, you managed to pronounce the distinguished name of my distinguished professorship correctly.
So that's quite a mouthful.
Oh, there you go.
That's good.
It was a random hit.
But, you know, I want to talk to you.
You have a new book out called Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness.
I've been reading in it, and it's just really incisive, very broad-minded look at what's going on.
Let's begin.
It's called The Crisis of the Two Constitutions.
So let's start there.
What are the two constitutions?
The two constitutions are first what I call the founders constitution, which was the original written one of 1787 as amended, and the principles of that constitution that came before it, like the Declaration of Independence contains, but also the kind of American character that the Constitution and the principles produce.
Because I think if you look at American politics too narrowly, you don't really see the ambitiousness of the American Revolution.
It was really about producing a new kind of human being, an American citizen, with certain virtues and certain energy and adventurousness and so forth.
And the founding is not just about founding institutions.
It's also really about founding Americans and American citizenship.
And that's the first constitution in the fullest sense.
The second, the competing constitution, is the liberals constitution, which really comes from the progressives 100 years ago.
And so I call that one the progressive constitution.
They call it the living constitution.
And my point, the point of the book really is that American politics is in such a perilous state because we really are in a kind of pre-revolutionary situation, torn between two constitutions for the same country.
You know, it's not a, you're not in a good position.
You're not in a good place if you have one nation and two constitutions competing for its loyalty, competing to constitute what that nation ought to be.
And but I'm afraid increasingly that's where American politics is going.
It's moving from what political scientists sometimes call normal politics to what they call regime politics, where the point of the latter is that you're really fighting about what is the regime, who rules and what are the purposes for that rule.
So that's a, as I say, an unfortunate, unhappy, and perilous place to be in.
When you talk about the living constitution, I mean, whenever I'm talking to a left-winger and they talk about the, they say the constitution is a living document, I always say yes, but it's not a blank document.
Is there, does the living constitution mean anything besides anything the left wants it to mean?
Well, that's a very astute question.
I think the answer is yes, but practically speaking, it means the living constitution is what the liberals say it is at any given point, because the point of the living constitution is to be Darwinian.
And, you know, the guy who sort of invented it, Woodrow Wilson, talked that way.
He said this was a Darwinian idea, meaning that whatever the Constitution needs to be to survive, whatever the Constitution needs to be to prevail, whatever liberalism needs to prevail in our current politics, that's legal.
That's constitutional.
That's the ethical standard that they're applying.
And so that is open to almost anything because, you know, politics may challenge liberalism in many ways, and they're open to almost every possible response.
But it means substantively one thing, which is the principle of change.
The only principle they really regard as timeless, as enduring, is the principle of change itself.
Everything else in the Constitution, they think of primarily as an 18th century inheritance.
And their attitude is: you know, the Constitution was a great document for the 18th century, but now, you know, in the first and the 20th, now in the 21st century, we really need something much more modern, much more with it, much more open to growth, to experimentation, and to remaking the citizen body itself in the image of liberalism.
So how do we get to the point where the Constitution as presented by the founders and this living constitution, historically did we get to the point where they are actually in such tension that we don't know which is going to triumph over the other?
In the beginning, 100 years ago, when Woodrow Wilson and other progressives began to talk about the living constitution, they did present it as a kind of evolutionary extension of the old constitution.
And so for about 50 years or more, liberals talked that line.
They took that line, which was that the two are actually not opposed to each other.
They're going to converge.
Just like they used to talk about the Soviet Union, you know, socialism and communism on the one hand converging with capitalism.
That was the way they regarded the two constitutions for two generations, let's say.
But beginning in the 1960s, that's the historical period where it became obvious both to conservatives and to liberals that they weren't really talking about how to interpret the same constitution.
They were talking about which constitution they ought to interpret.
The living constitution, the one that was open to a constant parade of new rights and new programs designed to achieve those rights, and thus no permanent limits on government power really were conceivable.
Is it that constitution we're interpreting, or is it the constitution of the founders, which assume that human nature is more or less fixed and that human rights are not constantly evolving and changing things, but pertain to what is permanent in human nature?
And that a constitution that attempts to protect permanent rights has to be relatively unchanging.
Not completely unchanging.
I mean, we have had, you know, 27 amendments and we may have more.
And that the provision for amendment was built right into the Constitution to begin with.
But when we amend the Constitution, we are, in a way, following its rules and so still acknowledging its authority.
And what the living Constitution does is it doesn't really need the formal mode of amendment anymore.
It amends things through Supreme Court opinions or more often through simple regulatory creation of rules.
And most of our laws, as you know, these days, don't come from our elected representatives in Congress, but from the unelected deep state or administrative state, which is a creation of the living Constitution, a growth out of the living Constitution.
So you have these two constitutions, these two visions really of America struggling with one another.
And you talk about the different ways this could work itself out.
And one thing you mentioned is federalism.
And I think we're sort of noticing this real struggle going on between the states and DC that has a different tone than it's had before.
And meanwhile, you've got states both on the left and the right saying we're going to be a sanctuary city for immigrants or we're going to be a sanctuary city for guns.
Do you see a new birth of federalism coming?
Or do you think that that's just too problematical to continue?
Well, Drew, I think you're right.
I mean, one way we could work ourselves out of this pitfall we find ourselves in might be to a renaissance of federalism.
But that's very unlikely.
I mean, liberalism has spent 100 years basically creating a national political community with a national government of almost limitless powers at the top of it.
And it has created a whole series of rights, welfare rights, and now identity rights, and sort of sexual identity and gender identity rights and so forth.
The point of which is these rights cannot be vindicated except from the top down, except from the federal government down.
And so federalizing our political community, nationalizing it more and more.
So now, it beggars belief that the left would agree that the way out of this is to agree to disagree.
And let's just return things to the states, you know, so that Utah can have its kind of abortion law and New York can have a very different kind of abortion law and live and let live.
I don't see how liberalism can do that with a straight face.
And conservatism would be interested in it, I think.
But because it's so improbable, I'm afraid it's not really a viable solution, and we're going to have to fight this out.
Well, you mentioned the other ways forward that you can see actual secession, possibly instead of a cold civil war that we're having now, a hot civil war.
Those both seem unlikely to me.
Am I wrong about that?
No, I think they are unlikely, and I hope they remain unlikely.
But at the same time, this is a different kind of, I spoke in the beginning about this being a sort of pre-revolutionary situation.
It doesn't, in a way, it doesn't seem like so dire a condition because when we think of revolution, we think of a sort of huge social uprising like the French Revolution, you know, an eruption of mass violence and with it, you know, enormous amounts of carnage and social change coming quickly.
But this is a different kind of revolution.
This is a rolling revolution that really has been going on for 100 years.
And it, you know, it advances and then there's a kind of generational watermark that it reaches.
But 10 or 20 years later, it resumes the advance again and rolls forward to the next one.
So I think there have been like three major waves of the liberal revolution already in the 20th century, and we're now on the verge, it looks like, of a fourth one.
However, the result is no less revolutionary, even though it arrives peacefully or relatively peacefully and in stages.
And so this is the problem, getting it through our head, just how much change there has been to American politics and to the American political order in the last hundred years already.
So that America is in many ways a very different country than it was, you know, even 30 years ago, much less 50 or 100 years ago.
And I think the Trump phenomenon, in a way, is a kind of recognition by vast numbers of people, at least the 74 million who voted for him, but I think many more beyond that probably, that the country is changing right in front of our eyes.
And normal conservative politics has been unable to either certainly arrest that change, but even to admit it and to discern the dimensions of it, to be honest with the American people about what has actually happened to their country over the past, especially the past 20 years, but really going back for a long time even before that.
So the book is called The Crisis of the Two Constitutions by Charles Kessler.
We talked about the two constitutions.
What do you see as the crisis?
I mean, if there's not going to be a hot civil war, if there's going to be this rolling revolution and the rebellion that was kind of symbolized by the Trump voters, what kind of crisis do you foresee resolving this problem?
I think it's hard to foresee.
I mean, it's not nothing is, my view is that nothing really is inevitable in politics.
And we could find ourselves in a very different political situation if something happens.
Events Matter00:02:44
You know, events do matter.
And if we suddenly find ourselves in a major war, I mean, a major war, if the Chinese think a U.S. carrier dude in the course of invading, in the course of the Chinese invading Taiwan, let's say, okay, all bets are off.
And the nature of American politics might change very quickly.
But COVID-19 looked like it might be such an extraneous shock to the system, you know, an event, an unanticipated event that could rewrite or rebraw the lines of politics, but it didn't.
It turned out that COVID was almost, in a month or two, assimilated into the existing crisis, assimilated into the existing debate between the two constitutions.
Only now we had more things to argue about.
We could argue about masks and unmasking and about the vaccine and about shutdowns and reopening.
And we've done that.
So I don't know.
I can't predict exactly what the crisis is going to be, but it could easily, it may not be one single thing, but a series of things.
But one can see a close election, a disputed election could trigger it.
A Supreme Court decision that a large part of the country refuses to accept, that many states, in effect, nullify and refuse to have enforced in their own domain could be the precipitating cause for a crisis.
You know, I don't think a civil war, a shooting civil war, is immediately likely after such a precipitating event, just because America is a very messy country now.
And, you know, red states and blue states span the country.
It's not like there's a southern confederacy that is sort of territorially distinct and that could secede easily and dramatically from the country.
It's messier than that now.
So it's hard to see.
But what happened in both of the elections, 2015 and 2020, in which Trump was involved, gives you some idea of how easily there could be a turn to drastic political action, including collapse, perhaps even violence.
Reagan's Patriotic Revivalism00:04:01
I've only got a couple of minutes left, but I just want to point out the book, Crisis of the Two Constitutions, in the subtitles, The Rise, Decline, and Recovery of American Greatness.
That sounds kind of hopeful.
Do you foresee a recovery of American greatness?
Well, the recovery part is really, the book has three parts.
The first part is on the Founders Constitution.
The second on the liberals or the progressives' Constitution.
And the third is about the conservative response to this impending crisis, so this growing disaffection between the two constitutions, this distancing and this divide between the two constitutions.
And I talk mostly about Reagan and Trump because Reagan is the most successful conservative statesman.
Trump was, might have been, you know, if things had worked out differently, a very successful.
He remains, of course, a very important example of right-wing political activity and possibilities.
But the right has not succeeded in restoring the founders' constitution.
That's in a way what they've been trying to do since Reagan, at least, and even before Reagan.
And the odd thing is that by the end of his term, Reagan realized that, and by the end of his term, Trump also realized it.
They're sort of connected by the fact that in Reagan's farewell address, this would have been 1989, he said that he took credit for what he called the Reagan Revolution.
It wasn't his term.
He modestly accepted the term.
But others had used it.
But The Cold War was about to be won.
The economy had been revived and would continue for two more decades in an amazing upward ascent.
But he said he had failed at the most important thing, which had been to institutionalize a new American patriotism, what he called an unambivalent American patriotism.
And in the most poignant paragraph in his farewell address, he said, you know, America is, this is a different country than it was when I was a child, when I grew up.
Reagan said, when I grew up, you could learn your patriotism on the streets.
You would get it in the schools from your teachers.
You'd get it on television or in radio, in popular media, in the newspapers, from your parents and everyone around you.
But now, speaking in the 1980s, even, he says that the media, the Hollywood, the television networks don't teach patriotism in the way that they used to do.
And young American parents just aren't sure what they're supposed to teach their kids anymore.
Is America a good, a force for good in the world, or is it not?
And that unambivalent patriotism, he said, was essentially lost.
He had tried to bring it back.
He succeeded a little bit in bringing back a patriotic revivalism, but it was not institutionalized.
And at the end of his term, his one term, Trump created the 1776 Commission, which precisely the same to figure out how to institutionalize a patriotic culture again in America, beginning with the schools, the K-12 schools.
I was a member of that commission, which was, I like to say, the most efficient government commission in the history of government commissions because it did its work in about two weeks and produced its report.
Trump's 1776 Commission Effort00:02:02
But the report was a lament, in a way, for the damage that had been done, but also a call for action.
And I think there is some hope that reasonable people on the left, and there still are some, will join reasonable people on the right in believing that we really do have to fill up the empty center of our politics with a new kind of patriotism, and that there are some signs that it's possible that that's not a crazy project.
I mean, I'll leave you with this, I guess.
In California, you know, the same very Democratic, very liberal electorate that voted for Biden by more than 70% in California also, at the same time, voted to refuse the left's invitation to repeal Prop 209.
In effect, the left was saying, let's bring back overt racial quotas and racial discrimination in college admissions and in state contracting and so forth.
And that was voted down by more than 11% by a very large margin by the same voters who voted for Biden.
So maybe even liberal voters now are beginning to think they need to draw some lines and that they're not prepared to go all the way with identity politics and with the far left of the party.
And if that's true, then I think, again, there may be some possibility of a sort of raffle-small between left and right in this country.
Well, I have to stop you there, but that at least some hope.
I appreciate it.
The book is called The Crisis of the Two Constitutions, The Rise, Decline, and Recovery of American Greatness by Charles R. Kessler.