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 American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social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.
- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute
- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to The Federalist Society’s virtual event. This afternoon, July 2nd, we continue our Talks with Authors series. Today, we’re discussing Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness by Dr. Charles Kesler. We’re very pleased that Dr. Kesler can join us this afternoon. My name Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.
I will now introduce our moderator, Professor Gerard Bradley. Professor Bradly is a Professor of Law at the University of Notre Dame Law School where he teaches legal ethics and constitutional law. At Notre Dame, he directs with John Finnis the Natural Law Institute, and he co-edits the American Journal of Jurisprudence, an international forum for legal philosophy.
Professor Bradley has been a Visiting Fellow at the Hoover Institution of Stanford University and a Senior Fellow at the Witherspoon Institute in Princeton, New Jersey. He served for many years as President of the Fellowship of Catholic Scholars. And we’re very pleased to welcome Professor Bradley to moderate the discussion this afternoon.
After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along. If you do have a question, please enter it into the Q&A feature at the bottom of the screen, and we’ll attend to those questions toward the end of the program today.
With that, thank you for being with us today. Professor Bradley, the floor is yours.
Prof. Gerard Bradley: Thank you, Evelyn, and thanks to The Federalist Society for devoting this hour to a terrific book by Professor Kesler. And I’m glad that Charles can join us today. And I should like to first introduce him a bit. Not everyone on the webinar is as familiar with his accomplishments and work as they could well be. But he’s the holder of a Harvard Ph.D. He has for many years, decades even, been a Professor of government at Claremont McKenna College as well as Claremont Graduate University.
He’s published numerous articles and books. I should say in particular that for the 21 years that the Claremont Review of Books has been on the newsstands, Charles Kesler has been the editor in chief of it. If you don’t get the Claremont Review of Books, you should.
His most recent book, which is the subject of conversation today, is Crisis of the Two Constitutions. I recommend it to you most heartily. I should say, however, don’t be put off by the curious cover art, which is a poor cartoonish version of what appears to me to be Don Quixote tilting at windmills. I hope Professor Kesler does not think that his own intellectual causes are as hopeless as Quixote’s was.
But we do want to talk about the book, and I think -- I don’t know when he first got the idea of putting this book together. It could be a year or two ago. And some of the chapters are previously published essays, or at least in part previously published essays. But it’s come at an opportune moment when in the last year or so -- I’m dating it, perhaps, to the Bostock decision of last summer near the end of the last Supreme Court term.
There’s been a lot of internal debate, internal to the conservative legal movement, about where conservative, especially constitutional jurisprudence can go and should go. If you’re interested in that question -- although this is not a book about cases. It’s not a case crunching analysis. But if you’re interested in constitutional foundations and from what you might call the conservative perspective, this is the book for you.
But with that, Charles, over to you. And I suppose taking the advice from the saying that first things should be first, could you tell us a little bit more about which two constitutions you have in mind and to which the book’s title refers?
Prof. Charles Kesler: I’d be happy to. Thank you also, Gerry, for agreeing to do this after you’ve already done yeoman service by reviewing my book for the journal First Things. And my thanks to The Federalist Society as well for the invitation.
Well, whenever there’s a Supreme Court nominee or even a prominent circuit court nominee, we have a little discussion about the “living Constitution.” And that term these days seems to be confined more or less to legal practice and to the debate about which judge will read the Constitution in accordance with either its original intent or its evolving meaning.
But what I do in this book is really take the idea of the living Constitution back to its philosophical and political origins, which go at least as far as Woodrow Wilson and the progressive movement. He used the term in both as a political science professor and as a president. And although he may have borrowed it from Walter Bagehot in England, he gave it it’s American spin, its first and maybe most comprehensive American meaning.
So in the first instance, the two constitutions are the original Constitution of the United States, which now days I refer to as the conservatives’ Constitution because of the original intent emphasis, but in general in the law, although I’m of course aware that there are liberal original intent theorists and, I suppose, practitioners as well, but politically, most conservatives trace their principles one way or another back to the Founding Fathers and that Constitution. And then as opposed to that Constitution, what I call the progressives’ Constitution, which they call the living Constitution.
And in the beginning, one might argue that these two constitutions were thought to be on the same track and that there was a kind of evolutionary convergence between them. And several Supreme Court justices and many political figures talked in that manner as though there was no conflict in principle between them that history couldn’t resolve or that practice would not eventually iron out. But I think that is a kind of exploded superstition now. And what we’re really dealing with are two conflicting or contrary and competing constitutions which point in their own ways to two different Americas or two different visions of what constitutes America.
So I think we’re on the path to an increasing political conflict between left and right, between these two visions of these two constitutions, and that we ought to take seriously the principles upon which each are based and the incompatibility, ultimately, between those principles. As far as the metaphor goes, if you call your Constitution the living Constitution, the powerful implication, I would think, is that the other Constitution is dead, or at least, at best, on life support, and that its continued survival in whatever low mode depends upon continuing transfusions from the living Constitution to the faltering or dead or almost dead one. And that does not sound like a formula for a happy ever after marriage of the two constitutions. It sounds like a formula for supplanting the old Constitution with the new one.
Prof. Gerard Bradley: I should like to add, for the benefit of our listeners, that one of the remarkable, not themes, but accomplishments of your book is to make this conversation that you’re describing not a conversation between some set of American historical figures circa 1910, call them the progressives, and Madison, Jefferson, and that whole lot. One of the remarkable accomplishments of your book, I really think, is to show, notwithstanding many changes and contingencies unfolding, there’s a real continuity, as you trace it, between the Wilsonian progressive living Constitution and the living Constitution that we have now.
Now, one of the linkages or one of the linking ideas, I think, Charles, is in some useful sense of the term, some determinate sense of the term, you can see -- and is it your view that you can see liberalism within, behind, and beneath the living Constitution these whole hundred years, with liberalism mutating and changing to some extent? But you say a little bit about how you think there is this continuity, because I do think it’s not an intuitively obvious claim that the Wilsonian use of the term living Constitution would be the same as William Brennan in the 1980s. And it’s not the same.
But your point, and I think you support it and carry it, is that no, although they’re not the same, there are similarities that make it very helpful to talk about Wilson and Bill Brennan as being in or holding, in some important respects, the same position. But could you say a little bit more about that continuity?
Prof. Charles Kesler: Yeah, sure. You’re right. This is kind of a tricky subject because, obviously, Woodrow Wilson’s liberalism is not quite the same as Barak Obama’s liberalism, even as James Baldwin in the ’60 is not the same as Ta-Nehisi Coates or Ibram X. Kendi today. But there does seem to be several lines connecting them.
And if you go back to the original idea of the living Constitution, which as Wilson explained it is really a Darwinian idea, the notion that the principles of justice are not set in an unchanging nature, not set by laws of nature and nature’s god, but in fact evolve with changing social and economic and cultural changes in such a way as to compel a sort of continuing constitutional convention to adjust the Constitution to the new realities and the new problems that face us. And that open-endedness is, in a way, what underlies, say, both Franklin Roosevelt’s evolution of a second Bill of Rights, as he called it, to the Constitution, and really what underlies the third Bill of Rights that began to be formulated in the 1960s and continues today, I would say.
If you look, for example, we had this voting rights decision come down from the Court. Scholars of voting rights sometimes talk about first generation and second generation voting rights. And that is a very living Constitution, evolutionary idea that you have a -- that times require access to the ballot by individuals. And that is the old fashioned 15th Amendment and 1965 Voting Rights Act substratum.
But that’s not enough. You also need a right to an effective vote. And an effective vote means one in which underrepresented minorities get more represented, and that has to be measured not by colorblind individual rights to a ballot, but by essentially group power and voting power rather than voting rights, really. And that evolution is very much in keeping, it seems to me, with the general evolution of liberalism over the last hundred years.
Prof. Gerard Bradley: Well, now that we’ve got a hold on which two constitutions we’re talking about, Charles, could you briefly describe what’s the crisis about them that is carried or conveyed in the title of your book?
Prof. Charles Kesler: Well, there’s two senses of the term crisis. In pathology, crisis is the point at which the patient either gets worse and dies, or recovers, or begins to recover. And in that sense, we’re not, I think, quite at a crisis yet. We’re approaching a crisis. But there’s the other sense, the looser sense of the term crisis, which is any time your patient is in such dire situation, the whole getting worse towards the moment of real crisis is, in a way, loosely speaking, part of the crisis. I think we’re in that crisis. We’re in the crisis that consists in approaching a crisis.
Now, the actual crisis, if one comes, and I think, as far as one can tell, it seems like one might come and is likely to come, would be triggered by some event, I think. It could be a contested election. It could be a botched impeachment. It could be a Supreme Court decision that half the country or a third of the country refuses to accept and attempts, essentially, to nullify in the red states or the blue states. One can imagine that such a decision could be on abortion. It could be on gun rights. It could be on any number of issues that would essentially break the bonds of allegiance to the Constitution, however formal they may be.
But the crisis really is that the definition of rights and who has rights, what the rights are, why we have rights, is philosophically incompatible one with the other, and they’re on divergent paths. So they were a little bit closer together a hundred years ago, but they gradually have, like boats moving a few degrees apart all the time, are beating a path further and further away from each other.
Prof. Gerard Bradley: Well, I’ll give you an example, I think, Charles, of what I think you’re talking about. If one tries to imagine the circumstances surrounding the presidential election of the year 2000, Bush v. Gore, and the way in which the Supreme Court was called upon to arbitrate that election, and in a way, declare the winner, if that had occurred in 2020, we could have discovered that America could potentially break apart.
What I mean by that is we could have discovered if you took the circumstances of the Bush v. Gore election but applied them to Biden and Trump, and with the way we’ve politicized the Supreme Court since 2000, you might have discovered, if the same circumstances were present in late last year, that we have diverged so much that America has really sort of broken apart into at least two political communities, and also, we may have discovered that we no longer have confidence in institutions and in neutral principles sufficient that people could have accepted peacefully the outcome, no matter what it was. I think that’s a useful thought experiment to perhaps help us imagine what you’re describing.
Now, I should say -- or let me turn to a question that burrows more deeply into the content of the book. It seems to me that almost every subject you take up in the book -- I don’t remember that you take up baseball, but baseball in some ways has become controversial. But you take up a lot, but especially the thought of the founders. You skip around in the course of American history but land for several chapters on the progressive era. You talk not so much frontally but at least indirectly and implicitly about the culture war. But again, you say a great deal about the founding and the course of American history and the course of American constitutional development. And you touch upon sensitive topics, including racial justice.
My observation is that just about everything you talk about has been seriously, or I should say, mischievously politicized today. And one can wonder whether or what is the audience for a serious minded, carefully written and argued book on these subjects. What reasons do you have to think that there is an audience that’s willing to sit patiently and try to arrive at judgements about the truth of these matters, about 1776, about 1787, about the character of the American regime, about the moral principles that underly all of that? Is there a constituency, do you think, out there that, despite all the froth and fury and sound and fury, is interested in knowing what’s what?
Prof. Charles Kesler: Well, of course my answer is I hope so. But I think so too. And I’ll give you an example. I think a lot of people, Democrats included, Democrats of good will, have been shocked by how polarized our politics just in the last two years or so have become. When people are pulling down statues of George Washington and Thomas Jefferson and Abraham Lincoln and Frederick Douglas and Abigail Adams and others, this isn’t just your usual effusion of youthful protest, it seems to me.
This is a kind of prerevolutionary thing. You pull down statues in a revolution and you eventually replace the empty -- you put on the empty plinth somebody else’s statue. And what we don’t quite know is whose statute would the rioters who pulled them down in the last couple of years, whose statues do they want to erect in place of the ones that they’re pulling down? What are the goals of the revolution that they, in a way, are contemplating?
Now, The New York Times did us a favor by publishing the 1619 Project and providing a memorandum of how to think about what’s wrong with America and what would be necessary in some ways, at least, to improve it or to refound it, to use the word of The New York Times, to reframe the whole history and meaning of America around this claim of theirs that slavery is more central to America, its principles and its reality, than freedom is. That’s the whole point of the 1619 thing.
But I’m encouraged by this, and I find a little hopefulness in this, that the bad history, the tendentious history of The New York Times was criticized by very prominent liberal historians, men like -- distinguished historians like James McPherson and Gordon Wood and many others who are not by any means conservative Republicans or even originalist of any sort but who just cried out against the distortion and the obvious heavy-handedness of this interpretation that Nikole Hannah-Jones and others elucidated in The New York Times.
That gives me some hope that maybe the reservoirs of good will between left and right have not been drained thoroughly or as drastically as I feared. Maybe there’s some ground for civic education and civic renewal still left if we could just acquaint ourselves, it seems to me, with some of those fundamental principles that we might still agree on, or at least some people might agree on.
But the way that the criticism of these distinguished scholars was dismissed above all by Nikole Hannah-Jones who basically said what do a bunch of old white men know about the realities of blacks in America and the experience and the depths of slavery in America, and so forth. That shows you what we’re up against and why -- it gives you an example of why the reservoirs have been emptying pretty steadily.
Prof. Gerard Bradley: Yeah. And I wonder what she would think of the best book about American slavery that I’ve ever read, and I think many people would agree with it, and it’s about the life of enslaved people. And that’s a book called Roll, Jordan, Roll which was published by a then middle-aged white man, Eugene Genovese. So that’s a suggestion that even someone whose own personal biography doesn’t equip them to be intimately familiar or have any kind of intuitive feel for another person’s life or times. That is what historians try to do, and that’s what people often try to do.
So that kind of flip response is truly discouraging because it makes it almost impossible to think that you can successfully come to really understand someone who’s not like you, which maybe is part of their message, that we’re different, and therefore, you have nothing to say about who I am or what I should be.
Now, you do, well, frankly, make a big deal, Charles, in your book about what you perhaps most often call, but sometimes call by other names, the principles of the Revolution. And I read your book as maintaining that the principles of the Revolution can not only be identified, but they can and should still be the basis for a renewal of the Constitution, not the living Constitution but the Constitution. So to put it bluntly, they still have some role to play that’s actually a vital one.
But a small group of conservative scholars, and I’m thinking maybe most especially of my own Notre Dame colleague Patrick Deneen, implicitly challenge any such view because they, this small group of scholars, argue, in effect, that the present discontents are really just late flowerings of dystopian seeds planted at the founding, that the founding was flawed, that it had within it, you might say, a Trojan horse of liberal relativism, and that we’re just seeing now a kind of not logical unfolding but a predictable and natural development of these, I call them dystopian elements of the founding.
Now, it’s clear you don’t think that’s true, that position is sound, but could you explain just a little bit about what’s mistaken in that view?
Prof. Charles Kesler: Well, it is a review that nicely consorts with the progressive view that the best thing about the founding was its openness to change; that is, that it allowed liberalism to sprout its seeds and to grow and to develop as it has in the 20th century and the 21st century. This is the view, Patrick’s view, which, as you figure out, of course, I disagree with it. But it’s the view that Bob Riley, in his interesting book responding to Patrick Deneen, calls the notion that there was a poison pill in the founding, a time release poison pill—that’s a phrase I like that he uses—which we didn’t realize it was going to harm us for a long time.
But I think that the problem with that is severalfold. First of all, if you read carefully the founding, and I have a very dense chapter on Federalist 10, since that’s the one Federalist that Patrick Deneen really cites and relies on heavily in his own argument, and which many other people have said this notion of the extended sphere full of conflicting interests and interest groups and a kind of peaceful war of all against all in the economy which drives our politics.
And that view of the founding, that it’s kind of a machine that will go by itself and that it doesn’t have any view of justice in any strong way, it’s just getting people to grow rich and forget about politics as much as possible and discharge their energies in capitalism and in other -- and not take politics, justice, or even religion all that seriously since the conflict of sects is sort of the model of the conflict of interest groups that Federalist 10 is talking about.
Well, I think that’s a misreading of Federalist 10, and I go to great lengths to try to integrate -- well, both to read it closely and to integrate that reading into the whole book because I just think it misses the obvious point which historians have been better at seeing than political theorists, which is that the whole book is a kind of giant guide to how to think like an American about the Constitution. It’s a giant effort in civic education which is designed to take the American view of justice and find a constitutional form that will support it and that will perpetuate it.
And so, far from being, as it were, indifferent to justice in any serious sense, it is a Washingtonian effort to make a country that can do justice and can represent and stick to a just rule of law. And I take that, I think, very seriously.
The second thing which I think Patrick Deneen’s argument neglects is that the people whom I accuse of making a break with the original Constitution, people like Wilson, to some extent Teddy Roosevelt, Herbert Croly, and others, and many kind of cast of thousands after them make -- they don’t disguise that. They say quite up front that the era of, as Wilson put it, blind worship of the Constitution is over, and the era of ruthless criticism of the Constitution is beginning.
And whether you take his variety of this argument, or you take like Charles Beard or one of the progressive historians view, their view is the Constitution is an unjust and time bound legal frame that we have no reason to respect all that much, and that it would be in our interest and it would be a tribute to justice to leave it behind as quickly as we can.
And I think their own presentation of their case indicates that they thought they were rejecting the previous political science in favor of a new political science. It is true that they sometimes say, especially politically, that is, in public they say that this is what the founders would do if they were here today. They would refound the country because we have a newer and better political science. But they also, these progressives and their followers also say, particularly in private and in academic settings, this is basically a repudiation of the old witchcraft based on theories which were unfortunately just not true, theories like individual rights, the social contract, and limited government.
Prof. Gerard Bradley: Yeah. Well, I mentioned earlier that your book is not a book about constitutional law. In fact, I should say you’re the first to say about your own book in its early pages, if you’re looking for a book that’s about cases and justices, this is not for you, which is refreshing to someone like me who spends all too much time reading cases and opinions written by justices.
But nonetheless, as I said earlier too, your book has profound implications for how we go forward reading and applying an interpreting our Constitution. So in that regard, I stand by my assertion that this is a book for constitutional lawyers to read, not just historians or people interested in political thought generally.
But anyone listening to the conversation to this point might well think, well, Charles is obviously an originalist. He’s clearly someone who would go back to the past, in fact, the rather distant path, identify what they held back in the past, and then that would be authoritative for us today because that is the way it works, that the people in charge back then set out the terms and conditions for our union. And you observe the past. It’s a matter of being faithful to tradition and honoring our forefathers. By that, a casual listener I think mistakenly reading the evidence, perhaps, so far on view in this conversation. I’m not sure about that.
But actually, that’s not your position. Your book is remarkable in that it’s not a book about going back, although, perhaps paradoxically, it is about the principles of the Revolution. And that’s, in my judgement, the most interesting and important part of the book. And I should say for those who haven’t read the book yet, there are here and there, I call them drive-by shootings. There are just these quick shots at some sacred cows of conservatism about tradition and honoring the past.
And to take just an example, you have a great riff about tradition, and you point out quite readily, of course, the Confederacy has a tradition, and some traditions are just plain false or bad. So if you could turn to this question that I think is the most interesting and important part of the book is about the way in which you could say truth, but I think you rather say permanent standards of right and wrong, what’s really sound and true about morality, how again, in short, how the truth is what we’re after as our anchor point.
And how is it that you synthesize, if you will, recovering the principles of the founding, but at the same time, you are completely dedicated to working, you might say, going forward with what’s true? It may sound paradoxical, just so stated, but nonetheless, that is your thesis, that we need to recover the principles of the Revolution, I suppose you would say, because they’re true. But let me ask you how you want to say it.
Prof. Charles Kesler: Yes. The problem with tradition is that there are good traditions and bad traditions. And you have to be able to identify what is good and what is bad in any tradition. Slavery is an American tradition. Anti-slavery is an American tradition. Which is the better one? Which is the authentic American tradition? That requires that you have some standard above just history or just the tradition itself by which to judge and distinguish the good from the bad in a tradition. You need some truth or you need some principles that are not themselves simply a product of tradition.
And so this was not -- this is what political philosophy and moral philosophy was about for many thousands of years, the effort to discern from contradictory human law or positive law what is in fact right and what is wrong. And for that, you need some standard, whether you call it natural right or natural law, let’s just call it natural justice, that takes nature as an unchanging standard for all the changing circumstances and times to which it has to be applied.
But the other problem is that truth is not enough. Truth is necessary but not sufficient. You also need judgement. In moral and political things, having the right principles counts for a lot, but you can still apply them foolishly, wrongly, imprudently. And so knowing what the truth is has to be complemented by knowing how to choose the greater of two goods or the lesser of two evils. It requires what used to be called prudence, or let’s just say judgement.
And the conservative movement, I think, has not had a very clear grasp of the truths of the American founding, but it’s had an intermittent one. But it’s also had a problem with figuring out what to do about that, how to try to revive them in actual constitutional and political circumstances.
And I have a long analysis of Ronald Reagan’s presidency, which I think is a wonderful example and a very complicated one, in which he made a great theme of returning us to the Constitution. But then the means of doing so for him were to somehow reconnect to the people’s innermost values, the Constitution they carried in their hips, to use Willmoore Kendall’s bold phrase. And so he ended up, by his own evaluation, failing to institutionalize this new patriotism, this new dedication to the Constitution.
As you know, in my evaluation of him in the book, I look at his farewell address, which is one of the less studied speeches of his. And it’s a very sunny address except for one really interesting and, it seems to me, important paragraph in which he says that he grew up in a different America. And all of his success in foreign policy and in reviving the economy and even creating what he called the new patriotism, had not succeeded in restoring what he called an unambivalent patriotism to America, and that young people in the 1980s, despite the successes of the Reagan revolution, still didn’t really know what to teach their children about America, whether it was a force for good or not a force for good in the world.
And that is, in a way, the deepest failure of the Reagan administration which he was so well aware of. Now, in his own sunny way, he sort of left it for us to finish the job. But conservatism is making good efforts but has not finished the job, it seems to me, to revive American patriotism in a thoughtful and prudent way.
Prof. Gerard Bradley: If I limited you just to two qualifiers, let’s say two adjectives, Charles, to describe patriotism -- it’s not likely people or a lot of people will aspire and embrace an ambivalent patriotism. And perhaps unambivalent is not quite within reach. But how would you describe just in words what it is that people can and probably should try to cultivate in themselves and also in their children? Is it a healthy patriotism? Is it a healthy but critical patriotism? What adjectives would you put in front of patriotism?
Prof. Charles Kesler: Well, I think healthy is good, and intelligent. I think thoughtful is a word that Reagan used in that speech, and I think it’s a good one. It doesn’t mean, of course, that everything America has done has been right. There is a lot of badness, a lot of evil in American history. But the principles by which we detect that evil and revile it properly are fundamental to America, it seems to me.
And we need -- even Nikole Hannah-Jones can’t quite -- she has a problem with the Declaration. She wants it to be -- it’s a lie, she says, and it’s an ideal. So how it can be a lie and an ideal at the same time is a good question for her and for the 1619 Project. So even she, I think, needs to discover what is true in the claims made in the Declaration and put into practice in the American Revolution and in the founding, which means that I think the making of the Constitution, but also really more than that, the making of a people in the light of the Constitution and the Declaration.
I think that that’s one of my criticisms of coming back to Patrick Deneen and many of the first generation of, say, Straussian political theorists who wrote about America and wrote well about America is that they made a little too much of this notion that the American project was simply an Enlightenment project, and that it had no space, really, for obligation as well as rights and for law as well as claims, individual kinds of claims. And I just think that’s a very partial reading of American history and of American principles.
And it would help if we, in looking back at justices as well as other political figures, if we were alive to the capaciousness of their moral understanding. So we have John Marshall, for example, who writes this wonderful multi-volume biography of George Washington, in addition to all of his legal writings and his political writings. And in a crucial moment in which he is talking about Washington’s character, John Marshall has a sort of long -- not a long, but a digression, an important digression about Cicero and about duty. Cicero wrote this book on duties, De Officiis, and I’m sure -- I doubt very much that Washington had ever read that book.
But Marshall’s point is that Washington lived that book in a way. He lived the principles of a life of duty and dedication to human rights and the rule of law, in an extremely old fashioned way, you might say, or in an extremely principled way.
Prof. Gerard Bradley: Yeah. Let me pause or conversation just for a moment, Charles, and check with Evelyn to see if there are any questions from listeners that we should take.
Evelyn Hildebrand: Thank you. There are not any questions from the audience, although if you’ll permit me, I did want to ask a question myself, if that’s all right.
Prof. Gerard Bradley: It is all right.
Evelyn Hildebrand: Okay, great. The question I have, I am curious -- I know you mentioned natural law and a recognition of the truth and seeking the truth in, maybe jurisprudence is the way to ask this. How does that change the job of a jurist? So an originalist judge, maybe specifically the Grim case is what I’m thinking. So given Bostock, is there -- where is the place for natural law or an appeal to natural law in deciding a case like that?
Maybe this connects too to the conflicting idea of rights that’s prevalent at the moment, so a person’s right to -- maybe that’s enough content because it’s giving me a lot of things to think about, but I think that’s really the question I want to ask is how an originalist judge handles or responds to natural law, given cases like Bostock in a situation like the Grim case that the Court chose not to take.
Prof. Charles Kesler: Well, that’s a tough question because I don’t know the cases well, but I’ll just say this. There has to be, intellectually, a recognition, it seems to me. And there often is from originalist judges and originalist writers, that even though they’re skeptical about how a judge should use any notion of unwritten justice of theories of justice like natural law, that the people who actually wrote the Constitution and most of the statute law did believe in some coherent and large notion of human rights and human wrongs, and that the law itself -- to the extent that the law is the intention of the lawmaker, the lawmakers had those kinds of moral intentions in their mind.
Now, most theories of natural justice, whether you’re talking Aristotle or Thomas Aquinas, or for that matter, John Locke, put a lot of emphasis on human law or positive law because the problem with every account, with every theory of natural justice is the problem of punishment. One of the central problems is that the natural law doesn’t itself have the kind of punishment with teeth in it that you need. That’s the job of human beings to complete natural law, statue law, by human law, and punishments of a definition of offenses and a schedule of punishments that accords with the magnitude or the gravity of the offenses.
So the judges’ intellectual enterprise is, it seems to me, to recover that mode of thinking. He’s not -- and I agree with originalists that the judge is not set loose to enact his theory of natural law in the case before him. That’s not what the duty of a judge is under the very natural law precepts that the framers had in mind when they wrote Article III and created the federal judiciary.
But it’s a little bit harder to say that there’s not some general kind of overlap between natural law thinking and the activity of the judge. Hadley Arkes has argued for many years that the judges are doing natural law even when they’re just enforcing human law, the statute law or constitutional law. And I think there’s a lot of truth to that. It certainly -- in a way, it complicates the activity of the judge, but I think it’s more intellectually honest to admit that you’re not innocent of natural law reasoning or activity when you are enforcing civil rights laws or even contract law.
Prof. Gerard Bradley: Yeah. Let me amplify or add something to Charles’s response to your question, Evelyn. And it’s a brief response, but I think that, apropos of what he’s been saying the last minute or two, it is a mentally mistaken self-understanding by a judge or a prospective justice, but I think it’s actually mischievous for nominees to the Supreme Court to say, and I think John Roberts was the first to use the phrase, but it’s been used by a couple of nominees since, that they don’t make law. They’re like umpires and just call balls and strikes.
Now, there’s a limit to meaning of umpire and balls and strikes, which is sound. That is to say, well, look, I don’t have a team that I’m rooting for. I’m not favoring the Yankees or the Mets. That’s quite right. But as stated and in the context in which it is said, that’s not its only meaning. It is meant to convey the bigger thought, well, my own opinions about morality and what is right and wrong have nothing to do with judging, and it’s not what a judge does, just like umpires aren’t making evaluations of the batter by calling a strike or a ball on a pitch.
But I think that’s only mistaken for the reasons that Charles is suggesting. But I think it’s mischievous because it’s an attempt to keep up a judicial narrative about judging which is false and is constantly falsified by even looking at any opinion so that people become quite cynical about the Supreme Court for bad reasons.
But one good reason would be they’re not behaving like umpires. It’s rather easy to see. My students see it all the time where the Court is rolling along in some opinion about criminal procedure, civil liberties, or almost any—almost, not every—but almost any opinion, and you can see the judge coming to a point where they’re making a choice and a decision between alternative courses, and that one is being chosen over the other because it seems to this judge to be the right thing to do. It may not be the establishment or selection of a major premise in the case. It could be downstream, but it’s somewhere along in the course of reasoning. And the judge or justice is making a decision about what they believe to be true.
So it’s falsified all the time, so it seems to me just hopelessly counterproductive, not true to the reality. And I think we’d all be a lot better off—and I know this will scandalize many people, including some people perhaps watching this webinar—we’d be better off if we could have a candid conversation, which maybe right now we can’t, or we think we can’t, but have a candid conversation about the limits, circumstances, and context in which it is appropriate for judges not to have recourse to what you might call their personal opinions, which is neither here nor there, but let’s just say, as Charles said, well, to principles of natural justice.
Take someone who uses the umpire line. Of course, that’s something different, but trying to think into the same thought. Well, my personal opinion does not have anything to do with my decisions as a judge. Say, well, let’s leave those terms aside. Let’s use the term justice, natural justice. Are you saying that you’re a justice of the Supreme Court, and you’re never going to consider and have no reason to consider justice? That would be a hard question to answer, “Yep, that’s exactly what I’m saying.” It doesn’t sound right at all. You can kind of get away with saying, “I’m not going to consult my personal opinions about morality.” That kind of sounds okay. It doesn’t sound okay to say, “I’m a justice of the Supreme Court, and justice is not my issue.” That doesn’t make any sense.
Prof. Charles Kesler: Yeah. And if you look at the evolution of civil rights law and politics or voting rights law and politics, you see there’s a kind of basic question of justice, whether rights in here in individuals, regardless of race, and the state is better off really not concerning itself with the race of its citizens but looking on them in a kind of colorblind way, or whether individual rights come by virtue of your membership in a social group or race. And if they’re based in the group characteristic or the voting bloc’s characteristics, then what is then -- the state is -- it has to be, it seems, in the business of knowing the race, or ethnicity, or whatever, or class, of identity of every group and of your membership in that group. And that’s a very different account of justice.
Now, if you’re interpreting the Voting Rights Act or the Civil Rights Act, or any of its iterations after the original ones in the mid ’60s, it has to cross the mind of the judge, I think, whether the rights he’s trying to respect are essentially individual, as the statute seems to suggest but doesn’t definitively, perhaps, say, or whether these are, in fact, group rights that evolve as the group evolves and the group’s needs evolve with it, in which case you end up, it seems to me, writing a very different opinion in many civil rights cases and in many voting rights cases than you would if you just think these are not, in fact, genuine kinds of moral claims but potentially very immoral claims of group identity, group authenticity, and only because of that, therefore, rights for members of that group.
Evelyn Hildebrand: That’s fascinating. We do have two good audience questions. Let me move through them rather quickly. This question comes from Eric Cecil, and he would like your response to this proposition that the founding was an explicit application of social contract theory that binds future successors in interest, regardless of whether they agree to it or not. And if we view the Constitution as a contract between the several states and the federal government, we must interpret the terms of the contract with reference to the intent of the parties involved, and therefore, the Constitution is not a living document with the exception of the ability to amend that contract. Your thoughts on that proposition?
Prof. Charles Kesler: Well, that sounds fairly correct without looking at closely exactly what he’s asking. The American founding is a kind of combination of social contract logic and founding logic. Most social contract theory doesn’t have a role for a founder or a founding generation because everyone is an equal party to the contract.
And the fantasy in Locke, for example, is that people, individuals get together and make a contract, having grown tired of the state of nature. And Locke makes a big thing of distinguishing between what he calls paternal power and political power. And the power of fathers, paternal power, has absolutely no relation to politics, he says. Political power is generated from the consent of equals. Paternal power is about unequals, fathers and children.
And one of the peculiarities of the American founding or our tradition is that we combine social contract and Founding Fathers in one account. So we have law givers who write the Declaration, but more importantly write the Constitution as an actual frame of government. And no one exactly authorized them to do so. This is one of the problems that the Federalist talks about. They were supposed to go into that convention to patch up the Articles of Confederation, but in fact, they, from the very beginning, turned their back on the Articles and started writing a new Constitution. Now, granted, it was just a piece of paper until the states had ratified it. But the whole ratification procedure was invented on that piece of paper in Article VII.
So there has always been this deeper -- our social contract tradition is a deep one with roots that touch the older classical political science of founding and law giving in which unequal people give you -- Solon, Lycurgus, these famous ancients, we don’t go as far as that. We do have a ratification process which intimately involves the people.
But still, we hold those founders, those initial drafters of the Constitution in very high regard, and as Europeans will tell you, one of the strange things, the distinctive things, about Americans is this love of their founders, this cult of the Constitution, and that is more or less how they intended it, I think. Madison actually does talk about this in the Federalist and elsewhere, that you need some reverence and a veneration for the law in addition to enlightened self-interest to found a republic and keep it going.
Evelyn Hildebrand: Very interesting. Now, just a final question and then we’ll wrap up. I know we’re a couple minutes over. From Christopher Wolfe, he wants to know if there is as great a gap between the two Constitutions as Marini does. I don't know if you’re familiar with Marini.
Prof. Charles Kesler: Say that again. Is there --
Evelyn Hildebrand: -- As great a gap between the two Constitutions as Marini.
Prof. Charles Kesler: Oh, as John Marini does, who’s a very good political scientist, a Fellow at the Claremont Institute and who has a book called Unmasking the Administrative State, which came out last year, a very good book.
Approximately, yes. My only -- I would pick a nit, I think, with John Marini in that his account of the administrative state is so comprehensive, and as such a comprehensive and omnipresent principle of modern politics that once you’re in it, it seems very difficult to get out of it. And that is true. Once you have administrative law and you have whole new parts of the government and perforce of law dealing with them, and the state of mind that goes with rule by experts and administrative lawmaking rather than actual congressional lawmaking, it is difficult.
But I don’t think that it destroys the possibility of choice and of reform and of a restoring some measure of constitutional health. I don’t think that our fate has slipped out of our grasp and into the boundless soft despotism of the administrative state.
Nonetheless, it is very hard to get control again, to constitutionalize all that is going on in the administrative sector in America, as The Federalist Society well knows and as many smart judges around the country and law professors know as well. The conflict between separation of powers and the administrative state, to take just that side of it, is a very deep one, but it’s one that people have been thinking about, and I think we’ve had some positive developments, some reform in the right direction, a little bit from lawmakers, more probably from judges and even some regulators.
Evelyn Hildebrand: Great. Fantastic conversation. Unfortunately, we have to wrap up at this time because we are past the hour. Do you have any closing comments that you would like to make?
Prof. Charles Kesler: Well, I wish everyone a happy 4th of July, though this will date the broadcast, the program, of course. But nonetheless, I think we have a lot to be thankful for as American citizens and to celebrate on the 4th.
Evelyn Hildebrand: Professor Bradley?
Prof. Gerard Bradley: I’m just very grateful for having a chance to talk with Charles, and it’s always instructive. I’m grateful for the two questions, especially the one from Chris Wolfe just minutes ago. I thought he touched upon something that we had not touched upon, namely the administrative state, which now that Chris has brought it up, Charles treats it pretty substantially as a question in a couple of his chapters, so it’s good that we got a chance to circle around to that question because I had not put it on my agenda.
Evelyn Hildebrand: Great. Well, thank you both very much. This was very, very interesting. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for participating and sending in your questions. We welcome listener feedback by email at firstname.lastname@example.org.
As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. And we do have two virtual events this afternoon, one of them discussing Brnovich, the recent Supreme Court decision, and that one’s a 3:30. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.