Our Divided House: A Review of Charles Kesler’s Crisis of Two Constitution


Editor’s Note: This review is different in form than in First Things, where it was first published.

“The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing”.

When Abraham Lincoln offered this observation to a Baltimore audience on April 18, 1864, he had in mind, on the one hand, every person’s “liberty” to constitute themselves by freely choosing in accord with the moral law. Lincoln contrasted this “liberty” with its traditional corruption, “license” – of a most peculiar sort.  “For other Americans”, he warned, the “same word may mean for some men to do as they please with other men, and the product of other men’s labor.” 

“Here are two, not only different, but incompatible things, called by the same name—liberty.” 

Our sixteenth President saw how these conflicting meanings of “liberty” had called into being correspondingly opposed customs, institutions, and laws.  That was the theme of his justly famous address in Springfield, Illinois six years earlier.  In the “Crisis of a House Divided” speech, Lincoln depicted North and South as different social worlds suffused by rival accounts of justice. These differing political cultures – different regimes, really — were anchored by “incompatible” conceptions of “liberty”.

Lincoln is a recurring focus of Charles Kesler’s superb and most timely new book, Crisis of the Two Constitutions”. One reason is that Lincoln possessed a profound understanding of the American constitution; Kesler’s book is about itspresent critical condition.  Another reason is that Lincoln spoke more eloquently than anyone else ever has about the central theme of Crisis, which is that the United States was founded on universal principles of justice “applicable to all men and all times”.  Kesler expresses the point when he calls for a recovery of the “principles of the American Revolution”, which include “permanent standards of right and wrong that were valid for human beings as such”.

A third reason is that Lincoln faced up to a constitutional crisis not unlike our own. Crisis is about (in Kesler’s words) the “political, intellectual, and moral divide in America – its origins, nature, and prospects”. “We inhabit “two countries with divergent ways of life”.  Kesler writes: “This book explains why Americans may be leaving the world of normal politics”, wherein the basics of the constitutional order are agreed upon, “and entering the dangerous world of regime politics”, where they are not. “[O]ur political loyalties diverge more and more, as they did in the 1850s, between two contrary visions of what constitutes the country”. 

The crisis in Crisis is this: “Every republic eventually faces what might be called the Weimar problem.  Has the national culture, popular and elite, deteriorated so much that the virtues necessary to sustain republican government are no longer viable?”  Have we arrived at our Weimar moment?  Not yet, according to Kesler.  But “it is not too early to wonder”.  

Some readers might already be thinking that Kesler’s images are too alarming, and his rhetoric, overheated.  

Not this reader.

Though his book “speaks frequently of two constitutions”, Kesler writes that it “is not (you may be relieved to hear) about constitutional law.  Few court decisions are so much as mentioned here.  There are plenty of books rehearsing the struggle between judicial activism and judicial restraint.”  Crisis is not one of them.  Kesler nevertheless offers some spot-on comments about specific cases and schools of constitutional thought, including “originalism”.  But most federal court decisions do not touch the fundamentals with which Kesler is concerned.  Those that do, he writes, are “are less interesting to us than the regime questions themselves”. 

Kesler therefore does not take up directly the central question of contemporary constitutional conservatism, which is how moral truths – “permanent standards of right and wrong” — are to be integrated into judicial interpretation of the Constitution.  This crucial matter, most ably explored today by Hadley Arkes, is nonetheless indirectly illumined by Kesler’s argument that natural law and natural rights were our nation’s founding “principles”.  These truths await (if you will) their proper placement into working constitutional law. Crisis is thus a prolegomenon to Arkes’ (and others’) project of reforming today’s constitutional conservatism. 

Kesler articulates one vastly underappreciated analytical truth indispensable to that reformation.  He asserts that natural rights imply natural law, that rights stand in reciprocal relation to duties. “The old natural and civil rights were bound up with duties.  Your right to life meant others had a duty not to take your life form you”, and vice versa.  

Just so.  

Crisis is comprised mostly of previously published papers.   But Kesler has so curated and edited them that they hang together to make a coherent and convincing argument.  They have been updated; in fact, Crisis includes substantial treatments of Donald Trump, and references to Black Lives Matter, the New York Times 1619 project, as well as to the Capitol riot of January 6, 2021. The first ten chapters are extensively footnoted.  These more scholarly pieces are challenging but nonetheless accessible to the non-specialist.  The writing is often delicious, like this morsel: “[C]onnoiseurs and cannibals both enjoy their food, and though the difference between having people to dinner and having them for dinner may seem fundamental to any idea of human dignity, it is, in the eyes of the consistent cultural relativist, strictly a cultural phenomenon”.   

Crisis includes some of Kessler’s best scholarly work on the Federalist and on the founders’ political thought more generally.  He establishes beyond reasonable doubt that our founding cannot be understood apart from Original Sin; that is, without taking full measure of our forefathers’ brutal realism about human nature. Madison asked in the Federalist: “what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary”.  This frank reckoning is manifest in the founders’ worries about – to cite a few of many — “faction”, about concentrated political power, and in their separation of government authority so that “ambition” could “counteract ambition”.  

Crisis also establishes beyond reasonable doubt that the heart of the matter lies elsewhere, in the people’s virtue, in moral truth, in natural rights, in unchanging norms of justice — what Kesler calls the “principles of the Revolution”.   Note well: these “principles” are architectonic  of the historical epic that was our war for independence.  That makes them noteworthy, and consequential.  It does not make them true.  Kesler asserts that they are true and that the founders thought so, too.  He is right on both counts, and that is the heart of this book.  Every time Kesler looks back at the Revolution and recommends it as a model for renewal today, he is doing much more than summoning a formative moment in our times.  He is appealing to critical moral truths, especially about natural justice.

Kesler thus rejects the contention that present discontents are latter-day flowerings of dystopian seeds planted in 1789. Yet ours was not an integralist founding.  The founders’ separated church from state and guaranteed everyone freedom of worship — without secularizing public (or private) life.  He rightly emphasizes that religion, though the predicate of a most cherished “liberty”, remained public, as a crucial component of the polity’s temporal common good.  A widespread consensus on basic moral norms completed the republican framework.  According to Kesler, the uniqueness of the founding is in large part that it was a synthesis. “Protestant Christianity, classical republicanism, and traditional British constitutional arguments all played important parts in the [Revolutionary] drama, but each of these received a new spin from the Americans’ understanding of natural justice”.  

Kesler’s treatment of religion and the founding could be improved, in my judgment, by distinguishing more than he does between revealed religion and the positive elements of any religion’s belief and practice, on the one hand, and what human persons can reliably know about divine matters by dint of reason operating upon data and experience available to all, on the other.  His account could be improved, in other words, by moving natural religion to the center of the republican experiment, which is where the founders located it.

The remaining chapters of Crisis are essay-ish commentaries on more recent politics, especially on modern conservativism.  These include a critique of the Bush Doctrine; not least  this part of it from the President’s 2004 State of the Union Address:  it “is mistaken, and condescending”, Bush said, “to assume that whole cultures and great religions are incompatible with liberty and self-government”.  Kesler replies that Bush sowed the seeds of democracy in the sandy soil of human passions, aspirations, and will — “not in reason’s recognition – and imposition – of a rule for the passions”.  Bush did not insist, as did the Founders and Lincoln, “that democracy depends on the mutual recognition of rights and duties, grounded in an objective natural order that is independent of human will”.  Indeed, democracy is a cultural achievement, as well as a political form.  The denouements in Afghanistan and Iraq suggest that Kesler is right.

Kesler’s chapter on “Reagan’s Unfinished Revolution” is broadly sympathetic to that great man and his Administration.  It is the most balanced critical brief assay of the Reagan presidency that I have ever read.   It harbors another choice prose morsel, not so sweet.  In his speech accepting the Republican nomination in 1984, Reagan condensed America’s political genius to the phrase “ordered freedom”.  (The Supreme Court as a matter of fact has long described our polity as one of “ordered liberty”.)   Kesler’s criticism: “This formula for orderly progress would appear to be reducible to a sort of Laffer Curve relating freedom to order – a scientific solution to the problem of value relativism”. 

Although Kesler nowhere says it quite this way, Crisis argues persuasively that our House is divided over incompatible meanings of “liberty”, too.  Not over the rationalizations of the slaveholder, of course; those were extinguished by the Thirteenth and Fourteenth Amendments.  Kesler’s attributes today’s variant of “license” to “modern liberalism”.  It is comprised of subjectivity about “values” in the private sphere and relativism in the public realm.  It is embodied in the “expressive” self which the Supreme Court canonized in 1992. Kesler quotes the “Mystery Passage” in full: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.  Kesler asserts that “[a]vant-garde liberalism used to be about progress; now it’s about nothingness”.   It is “license”, on nihilistic steroids.

The other “liberty” – the real McCoy — includes what Lincoln had in mind at Baltimore.  It is each person’s virtue.  It is character molded by free choices to pursue, and to be, truly good.  It is adhering to natural law and respecting natural rights.  But it is more.  It is this personal government braided with collective self-government. It includes each citizen’s participation in civic affairs and contribution to the success of the polity.  Call this intertwined, complex reality, “republican liberty”.  

Kesler is not here making the familiar claim that the founders thought that republican government presupposes a virtuous citizenry.  They did think that, and it is true as far as it goes.  But putting the matter that way connotes something different from what Kesler maintains.  The familiar expression suggests that the form of government in fact rests uponpopular virtue, where virtue is both conceptually and practically independent of the form.  Kelser argues that the founders welded them together.  They were and are mutually interdependent.  The familiar expression implies that without the requisite virtue, the constitutional system will falter.  It implies nothing about virtue withering as the constitution decays.  Kesler does. He thinks that if you subvert the constitutional order, popular virtue will atrophy with it. This is perhaps the central thesis of the book.

It is now carnival in private life, a burlesque of proper moral self-direction.  Collective self-government has — not coincidentally — collapsed.  And vice versa.  Kesler describes latest iteration of our “living” constitution (here, in my own words), as not even a facsimile of self-government by and through our elected representatives. We are instead managed, manipulated, and sometimes dictated to by an unaccountable fourth branch, an unelected third branch, and a spectacularly empowered second branch.  Lurking somewhere outside this phalanx is the   colossus du jour, the CDC.

 Kesler argues that the efficient first cause of this debacle was the Progressives’ rejection of the Constitution – and therefore, eventually if only incidentally, of traditional virtue. “Political liberalism began with a rejection of the Constitution and the morality underpinning it”.  “[T]oday’s manifold threats to liberty and morality stem mainly from the same source: modern liberalism.” Kesler’s asserted inner dialectic brings them down in tandem.  

In a series of chapters Kesler deftly traces the schematic historical path of this “liberalism” in “three waves” (the title of chapter 7) on from Woodrow Wilson’s “New Freedom”.  Wilson was the most notable “progressive advocate of the “living constitution”.  Kesler says that it ‘transformed the [American] creed, once based on timeless or universal truths, into an evolving doctrine; turned it, in effect, into culture”; that is, from the criteria of right living into our way of living, such as it is.  Notwithstanding Wilson’s deserved reputation for high-minded and occasionally messianic rhetoric, he was fundamentally a historicist with little patience for immutable principles of morality or justice, in Kesler’s rendition.   

Kesler argues that New Deal welfare policies begat nothing less than a “second bill of rights”, a set of “socio-economic” “entitlements”, which culminated in Johnson’s Great Society.  He neatly captures LBJ’s own messianism.  After his 1964 election Johnson declared, “[t]hese are the most hopeful times in all the years since Christ was born in Bethlehem”. This deranged Utopianism morphed into today’s “multicultural” mantra and its wingman, “identity” politics. And even though he was a devoted family man and all-around buttoned-down guy, Barack Obama heralded “post-modern relativism”.  In The Audacity of Hope he wrote that (and Kesler quotes him): “[i]mplicit in [the Constitution’s] structure, in the very idea of ordered liberty, was a rejection of absolute truth”.

Kesler’s prescription is clear.  It is a reborn American conservatism, based on the principles of the American Revolution”.  He anticipates the criticism that he is sugar-coating the founding and overlooking America’s manifold sins through the ages.  Not so: “The salient question, however, is not whether the United States ever fell short of its moral and political principles – it did, of course, many times – but what those principles were in the first place, and whether they are worthy of respect and allegiance.”  But he laments the “so far mostly unavailing” conservatives’ attempts to revive the founders’ wise principles and fortify them again with prudent statesmanship”.  He says that conservatives “seem to be cut off from the principles of the American Revolution”.  Even that they “avoid arguing about questions of justice whenever possible, which means they eschew politics (whose central issue is justice).”  

What then do conservatives maintain? 

The most formidable constitutional conservatism in our history “had roots going back to Abraham Lincoln and to the Federalist-Whig interpretation of the Constitution”, Kesler claims.  Its most serious exponents – he names Henry Cabot Lodge, Elihu Root, William Howard Taft – were renowned statesmen and judges. Calvin Coolidge and George Sutherland were the last notable proponents.  “By and large”, however, “these men were legal or constitutional thinkers, a strength that was also their weakness.”  Kesler judges that “these eminent practitioners were unable to face down the philosophicalchallenges to the order they loved so well.”  [My emphasis.]  

A Brooklyn upbringing makes me say it: these men brought knives to a gunfight.

The reborn conservatism which Kesler calls for is not, either, the conservatism of Kirk or Burke, of Buckley or Burnham, of Goldwater or of Reagan.  Neither paleo- nor neo- will do.  (Crisis includes riffs on them all.)  It is not the “traditionalist” democracy of the dead (“historical majoritarianism”.)   Kesler writes: “Tradition can be a great and a good thing, of course, but it is never so merely because it is traditional; slaveholders had their ancestral ways too.  To tell right from wrong within a tradition, or among traditions, requires a moral standard that has a validity or a goodness independent of the tradition: it requires an abstract or reasonable principle.” 

Indeed, anchoring constitutional renewal in our “values”, our “culture”, our “tradition” or really our anything will not do.  The key criterion is not possessory.  It is critical, normative, a matter of what is true.  One needs some “creed” – a set of justified beliefs, not just a recitation of our tribe’s touchstones — to make full sense of and to evaluate any culture. Kesler: “I mean creed, not merely in the sense of things believed (sidestepping whether they are true or not), but in the sense of moral principles or genuine moral-political knowledge”.  

A different book written for a different time would offer one and often two cheers, for culture and tradition and other contingent, but nonetheless organizing, and, up to a point, defining, features of our common life.  That other book would recognize the great value of rallying diverse elements of the American community around determinate symbols, historical events, activities, and persons – around the flag, Valley Forge, baseball, and, well, Lincoln.   At some other point in our history, constitutional law could flourish without the philosophy which Taft lacked and which today’s dominant “originalism” eschews. 

Crisis is not that book because ours is not that time. In Crisis Charles Kesler faces unafraid America’s “Weimar moment”. He is unapologetically keen to excavate and to restore the crumbled bases of the American republic. They are worth refurbishing, not because they tug at the mystic chords of our memory or represent the faith our fathers, but because they are true.  In Crisis of the Two Constitutions Kesler relentlessly pursues this question where it leads, all the way to universal truths, enduring standards of right and wrong for everyone. As he should.  For when the foundation of the house is collapsing, there is nothing else to do but to shore it up with material that can bear the weight, and which will last.  

Gerard V. Bradley is Co-Director and Senior Scholar at the James Wilson Institute. He is a law professor and director of the Natural Law Institute at the University of Notre Dame Law School.
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