Perspective: The crisis of two constitutions

Can America’s cold civil war be resolved?

We have come a long way from Barack Obama’s debut on the national stage at the 2004 Democratic convention, when he assured the delegates, “There is not a liberal America and a conservative America. There is the United States of America.”

At last year’s virtual Democratic convention, Michelle Obama corrected the record. “We live in a deeply divided nation,” she warned. “If you think things cannot possibly get worse, trust me, they can.” That was one point, at least, on which both sides could agree. In Donald Trump’s words, “We’re in a fight for the survival of our nation and civilization itself.” 

Angelo Codevilla was not the first analyst to describe our political disorders as a cold (i.e., nonshooting) civil war, but after him the term resonated. A cold civil war, of course, is better than a hot one. But it’s not a healthy situation for a country to be in.

Underlying our cold civil war is the fact that America increasingly is torn between two rival cultures, two constitutions, two ways of life. This mutual estrangement has been going on for a long time, but the pace accelerated beginning in the 1960s and again after the end of the Cold War era. 

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The consequence of these changes is that today’s America may be leaving the world of normal politics and entering a dangerous world of regime politics — in which our political loyalties diverge more and more, as they did in the 1850s, between two contrary visions of what constitutes the country.

One vision is based on the founders’ Constitution — written in 1787 and ratified in 1788, grounded in the natural rights and practical wisdom of the Declaration of Independence, interpreted in The Federalist Papers and expounded by subsequent American jurists and statesmen. In keeping with its own provisions, this Constitution has been amended — some vital improvements, some not — but is still broadly recognizable as the founders’ handiwork. 

The other vision is based on what progressives and liberals for nearly a century now have called “the living constitution.” The term implies that the original Constitution is dead — or at least on life support, in which case, in order to remain relevant, the old frame of government must continually receive life-giving infusions of new meaning, new duties, rights and powers. 

“Underlying our cold civil war is the fact that America increasingly is torn between two rival cultures, two constitutions, two ways of life.”

The doctors who are qualified to diagnose our constitutional maladies and to prescribe and administer these transfusions form a nascent elite or ruling class who attended the best colleges and universities, and who trust themselves and people like themselves to wield almost unchecked power. For example, under the living constitution they favor new kinds of administrative agencies, which concentrate legislative, executive and even judicial power in the same expert hands, even though the founders warned that such concentrations would satisfy “the very definition of tyranny.” 

But why worry about the misuse of power if your motives are pure, your degrees Ivy League and yours is the right side of history? The resulting constitution — the progressives’ constitution — is not a regime of unchanging natural rights or equal individual rights, but of rights that travel in groups and that vary with the historical moment. The right to health care, for example, is emphatically part of the evolutionary constitution: It is impossible to imagine such a moral claim outside of our stage of economic and social development in a very rich country in a largely peaceful world with doctors, drugs and hospitals in what is fancied, at least, to be surplusage. 

To borrow from the late constitutional law professor Walter Berns, the founders tried to keep the times in tune with the Constitution; the progressives want to keep the constitution in tune with the times.

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Until the 1960s, most American liberals believed it inevitable that their constitution would overtake and absorb the founders’ Constitution in a kind of evolutionary convergence. Their progressivism was more post- than anti-constitutional for that reason. But when this didn’t happen, the progressives’ constitution became more aggressive, more eager for Supreme Court justices to overrule popular majorities and precedents, more openly contemptuous of the perceived limits of the founding constitutional order.

American conservatives set out at first to limit and then reverse the damage from liberalism’s excesses. Ed Meese put forward his epic call, as Ronald Reagan’s attorney general, for a return to a jurisprudence of “original intent.” Long before that, however, conservatives had contemplated a return to the founders’ Constitution, via both jurisprudence and elective politics. But the multiplying varieties of originalism showed that, for all of the conservatives’ supposed determination to return to the founders’ Constitution, they couldn’t agree about the content or principles of that Constitution, nor about how to recover them.

As for elective politics, the greatest of conservative statesmen, Ronald Reagan, repeatedly urged a return to the old constitutional consensus, but the means to that end eluded him. Amid the great and enduring successes of the “Reagan revolution,” its failure to rise to the level of “a second American Revolution,” as he called it, stands out. It haunts his otherwise sunny farewell address. 

When it became clear to liberals and conservatives alike that neither was going away anytime soon, the cold civil war was on. As a result, the gap between the two constitutions became a gulf, to the extent that today we are two countries — or we are fast on the road to becoming two countries with divergent ways of life. 

We increasingly read different books and newspapers, watch different shows, get our news from different networks, worship in different churches and synagogues, live in different parts of the country, attend different colleges and study different disciplines, admire different sports and sportsmen, and may even have to eat at different restaurants in order to avoid ugly, partisan harassment.

The tradition of the loyal opposition — meaning opposed to the party in power but loyal to the same Constitution — is yielding to a new norm of fierce and implacable resistance to the other party’s very legitimacy. 

Our polarization is pervasive and deepening, though it isn’t yet, I hope, at the point of no return — and therefore, it is still possible that America’s cold civil war could be dialed back or even resolved.

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There seem to me five possibilities for resolving our contemporary cold civil war. The most obvious would be victory by one side or the other. Perhaps liberals or conservatives could persuade a majority of their fellow citizens to embrace their party’s agenda and constitution. In the past, that’s how Americans settled their swelling differences, in so-called realigning elections that handed control to a majority party for a generation or two, as in Thomas Jefferson’s breakthrough in 1800 or Andrew Jackson’s in 1828. 

In the 20th century, however, only two presidents were able to make enduring changes in public opinion and voting patterns — Franklin Roosevelt and Ronald Reagan. FDR reaped an electoral realignment that lasted for about two generations, lifting the Democratic Party to majority status. Reagan effected a realignment of public policy and voting blocs but wasn’t able to make the GOP the majority party.

Since 1968, the norm has been divided government: The people have preferred to split control of the national government between Democrats and Republicans rather than entrust it for the most part to a single, majority party.

“Our polarization is pervasive and deepening, though it isn’t yet, I hope, at the point of no return.”

Neither Trump nor President Joe Biden has so far been able to break out of this new pattern of stalemate. Both parties continue to lust after old-fashioned overwhelming victories, but the American people seem disinclined to make those dreams come true. If the new pattern holds, the parties will continue to alternate control of the presidency and routinely share control of the government, which means that embittering conflict between the two constitutions will continue. 

But how long can believers in the country’s systemic injustice and believers in its systemic justice continue to keep house together? 

If Americans can’t change one another’s minds, then there is the second possibility of changing the subject. Reagan used to say that when the little green men arrive from outer space, all of our political differences will be transcended and humanity will unite. Similarly, if some jarring event occurs like a major war or a natural calamity, it might change the focus of, and thus reset, our politics. 

But the COVID-19 pandemic was a pretty severe shock to the system, and it didn’t succeed in redrawing our political lines. On the contrary, it quickly became captured by the ongoing political war. Now the two sides may disagree about face masks, quarantines, vaccines, lockdowns and reopenings in addition to the usual issues. So if we can’t change our minds and won’t change the subject, we are left with but three ways out of the conflict between the two constitutions. 

The happiest of these would be a vastly reinvigorated federalism. If we had a reflowering of federalism, some of the differences between blue states and red states could be handled at the state level. The most disruptive issues could be denationalized. Let New York have a permissive abortion policy and let Utah have a very restrictive one. 

But having built a national regulatory state and spent the last century doing everything it could to create a national political community — with interest and identity groups sharing in a national agenda of consciousness-raising and programmatic rights — it’s hard to see how, at this late juncture, liberalism could imagine, much less accede to, a revival of federalism. 

That leaves two possibilities. One, alas, is secession — a danger to any federal system, as Alexander Hamilton and James Madison explained long ago. The Czech Republic and Slovakia went their separate ways peacefully, just within the last generation. Great Britain via Brexit seceded, in effect, from the European Union after much to-ing and fro-ing.

In America, despite the so-called “Great Sorting,” liberals and conservatives remain intermingled in many regions of the country; secession would be messy, and therefore would probably not be entirely voluntary. In other words, secession might be more an intensification than a termination or alleviation of the cold civil war. 

Years ago I saw a bumper sticker that read: “If at first you don’t secede, try, try, again.” The United States did try it once, which led to the fifth and worst possibility, namely, bloody civil war. I doubt we want to try it again. 

Which is why, under present circumstances, America seems to be approaching some kind of crisis — a crisis of the two constitutions, from which none of the possible exit ramps offers a sure escape. The crisis could be triggered by a disputed election, a Supreme Court decision (on abortion, gun rights, immigration policy, etc.) that many state governments refused to accept and sought to nullify, an ultimatum over trade or foreign policy, an impeachment gone very wrong — any number of causes.

Nor is simply protracting the cold civil war until the people get sick of it necessarily a better outcome. As the conflict has gone on, the disagreements, generally speaking, have gotten worse, not better. The tectonic plates of the two constitutions, already grinding away at each other for more than a century, may eventually produce a “Big One,” but certainly will produce in the meantime many lesser but severe shocks to the country. 

Yet the original basis of American greatness and unity is still available to us. Civility and citizenship are still possible between our factions if we could recover some of the fundamentals we used to agree on. To appeal to the better angels of our nature, however, we must first reacquaint ourselves with that nature and with how the founders tried to encourage it.  

The Declaration pointed out that tyranny is destructive to the ends for which government is instituted, namely the securing of equal “unalienable rights,” among which are “Life, Liberty, and the pursuit of Happiness.” The ends of government include the people’s “safety and happiness,” and it is the people’s right to decide when their safety and happiness have been violated and what they wish to do about it. 

Thus, on the one hand, the consent of the governed is a basic principle upon which the American Revolution was fought and the Constitution founded. On the other hand, the founders realized that trusted patriots elected to public office were necessary to help counsel and steer the republic. But how would such patriots be formed, and how would the republic forge citizens wise enough to elect them?

For this, a new education in self-government was needed, based on the principles of civil and religious liberty.

The Americans understood these liberties in terms of the doctrine of natural rights. For more than a millennium Western civilization had been torn by a disagreement, often bloody, over whether God’s grant of lawful authority for human government ran through kings or popes. Our founders argued that it ran through every human being equally. They discovered the basis of political obligation in the right of each individual to consent to a just government. Thus was natural-rights and divine-right democracy born.  

At the same time, religious liberty for all was secured by virtue of the limited nature of the resulting social contract. This new civil government did not seek to dictate true religion or the conditions of eternal salvation in the world to come. Freedom of the mind cannot be alienated: It is impossible to grant to government the power or right to compel the mind to believe something about which it is not persuaded by the evidence and arguments presented to it. 

Especially is this true of religious questions, for faith above all cannot be forced or extorted. Churches therefore became an eminent part of “civil society,” free of government control but supporting a common or public morality, namely, “the laws of nature and of nature’s God.”

By virtue of these principles, people could be at the same time good members of their religious community — i.e., good citizens of the City of God — and good citizens of their particular earthly city or country, without prejudice to either. 

“Civil government” and “civil liberties” are made possible precisely by excluding questions of revealed truth from determination by political majorities. Thus, for the American regime, the purpose of American constitutionalism was to produce a certain kind of human being and citizen — an American, whose character reflects the ends of our republicanism, combining political and religious freedom with moral seriousness.  

America’s founders sought both law and liberty — that lawful liberty blending rights and duties, which over time would help Americans make good on that “promissory note” so movingly invoked by the Rev. Martin Luther King Jr. on the steps of the Lincoln Memorial.

In the words of The Federalist Papers, “the fundamental principles of the Revolution” point to “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects to which all political institutions aim and to which all such institutions must be sacrificed.”

Our rediscovery of this America is our best hope of uniting the nation in freedom and civil liberties, but also in cultivating the far-reaching virtues of citizenship and patriotism, which constitute the true founding DNA of our nation’s Constitution. 

Charles R. Kesler is a professor of government at Claremont McKenna College. This essay is adapted from his book, “Crisis of the Two Constitutions.”

This story appears in the July/August issue of Deseret MagazineLearn more about how to subscribe.