The 'Two Constitutions' Examined

The chronicles of the American culture war are voluminous, but the epitome of this existential identity crisis that our nation faces is — purely and simply — constitutional.

Our Constitution is, by definition, the system of governance that we as "the People" chose to adopt after our forebearers abandoned the previous system, the Articles of Confederation.

However, the American political tradition has been and currently is fraught with discontent. The celebrated constitutional theorist professor Charles Kesler provides in his treatise, "Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness," perhaps the most analytical account of the constitutional culture war that currently afflicts our nation's mores.

Kesler offers this assessment of our current climate: "We are in a phase of American politics that is highly polarized. Almost everyone knows that, and everyone knows how unusual how every single president since George W. Bush has been regarded to some degree as illegitimate by the other party."

In American politics, Kesler notes, "it's regular to dislike the other party, but there also exists the tradition of the loyal opposition. That is to say, we share a common Constitution, but we disagree on the partisan issues of the day, but our commonality is much more significant than our differences. Unfortunately, our politics is increasingly not the one of loyal opposition but resistance where we don't have a Constitution in common to where we can repair as a source of agreement."

This theory of a loyal opposition preserved our country for many years, saving the few that the Civil War mired. Kesler's analysis is "[w]e're divided between a conservative's Constitution and the liberal's Constitution, where the conservative's Constitution looks back to the Founders, and the new liberal Constitution looks back to the Progressive Era."

Kesler characterizes the Progressive Era as "a time where progressives were critical to almost all moral assumptions on human nature and nature in general. [President Woodrow] Wilson wanted to create a new freedom to replace the old with something attuned to the 20th century and the 21st century that is, by definition, flexible. That is what the Biden administration is about, and liberals advertised, 'this Constitution was not to supplant the old but to just lift the words off of the page,' which is a useful fiction. It is ushering in a new one. We, therefore, disagree with what should be in our Constitution."

Kesler points out the fundamental and logical absurdity upon which the Living Constitution predicates itself. As Kesler notes, "There is nothing permanent except change in the pure idea of the living Constitution, and politically it's more complicated than that."

During the era of his "New Deal" in the 1930's, President Franklin Roosevelt saw that he could make political hay about new socioeconomic rights: "A right to a job, a right to social security." It may sound individualistic, but only because those rights apply to groups that the government works through to make them sound individualistic.

The welfare state for Roosevelt was permanent. It came out of the Living Constitution, which means everything is changeable. However, the welfare state structure is not very adaptable, is very costly, and people perceive these entitlements as permanent promises that aren't changeable.

Still, the Supreme Court has ruled that the commitment to pay is not guaranteed and is alterable by the legislature. Hence it is more ambiguous than the architects wished to indicate initially.

So the Living Constitution that is antithetical to the Framers' original intent is once again at the forefront of American politics and culture. This nefariously nebulous Living Constitution proposes the ahistorical and idealistic view of human nature that rejects moral constraint and presupposes a system based on a nihilistic conception of "change" subject to an ever-fleeting will of the majority.

In a nutshell, that's the case for the vitality of Kesler's treatise on this subject. It is all the more important to read, coming at a time when every article and section of the Constitution appears to up for grabs and when progressives are playing for keeps.

Michael Cozzi is a Ph.D. candidate at the Catholic University of America in Washington, D.C.