The United States is more than politically polarized amid a “cold civil war” over the meaning of the Constitution, constitutional scholar Charles Kesler said Tuesday.
Kesler, editor of the Claremont Review of Books, spoke as part of a panel discussion on “The State of the Constitution” during the 2018 Bradley Symposium at The Heritage Foundation.
“Underlying this cold civil war is the fact that increasingly America is torn between two Constitutions,” said Kesler, also a senior fellow with the Claremont Institute and distinguished professor of government at Claremont McKenna College. “Where it ends up then is some form of crisis, a crisis of the two Constitutions, a crisis towards which we are approaching if not yet hurtling, but which has no very good end available to us.”
Kesler outlined five possible ways to resolve the cold civil war.
One is to change the subject. Another is to change minds through persuasion, until one side wins. A third is a “reinvigorated federalism” that allows blue states and red states to address issues differently and coexist with minimal interference from the U.S. government. The others are more undesirable: secession or war.
“It’s possible we could agree to disagree in separate countries,” Kesler said. “Although that would be extremely difficult because succession, as we know from our history, leads to the fifth and final possibility—war.”
He described one Constitution, the original 1787 document as amended, as steeped in natural rights and limited government. This one, he said, is also the “conservatives’ Constitution.”
The other one is the “living Constitution,” or what he called “the liberals’ Constitution.”
“The living Constitution implies that the other Constitution is a dead Constitution, or at least is on life support, and that it must be transformed, it must be infused with new meaning, new ends and to some degree new means and institutions, to be kept alive in order to be a vital part of our politics,” Kesler said.
President Woodrow Wilson was one of the first to use the term “living Constitution” to suggest it changes with the times, Kesler said.
“A formula for the old Constitution was it was unchanging precisely because it was designed to keep the times in tune with the Constitution,” Kesler said. “The new Constitution is designed to keep the Constitution in tune with the times as much as possible.”
The “cold civil war” erupted when conservatives fought back, he said:
The conservatives who began an epic campaign against the inevitable emergency of the living Constitution had in common the desire, the duty to oppose the gradual disappearance of limited government from American political life. When it became clear in the ’50s and especially in the ’60s that the surrender was off, the cold civil war was on.
A part of the expanding federal government not identified under the Constitution comes in the form of independent enforcement agencies such as the Federal Trade Commission, the Federal Election Commission, and the Consumer Finance Protection Bureau, among others, said Robert Alt, president of the Buckeye Institute, a conservative think tank based in Ohio.
Alt said that Congress and the courts have been far too deferential to federal agencies that bring charges and adjudicate matters.
Congress is largely to blame for expanding executive power, said Christopher DeMuth, a distinguished fellow at Hudson Institute.
“A lot of seizure of power in the Obama years, and we can find some in the Bush years as well, [was] simply going with the flow of congressional delegation of lawmaking power to the executive branch,” said DeMuth, a former president of the American Enterprise Institute. “They were wrong, but in a sense, they were understandable.”
In what might seem out of step with most commentary about President Donald Trump’s nontraditional presidency, DeMuth said Trump represents a “return to normalcy.”
“Every president and every regulatory agency in modern times sometimes oversteps the bounds of the authorities given to them by congressional statutory law,” DeMuth said, adding:
President Obama and his regulatory agencies made it an open and notorious practice, a matter of routine, something that affected the biggest decision of President Obama’s second term, so that many of us thought during his second term that we might be evolving—seriously—in the direction of a government by presidential decree.
The Trump administration has been a return to normalcy, at least [to] the situation before Obama or late Bush administration, and then some. Not only has the Trump administration withdrawn many of the Obama administration’s most brazen extrastatutory ventures such as the Clean Power Plan, but in two critical cases, President Obama’s Deferred Action for Childhood Arrivals decree and his expenditure of billions of dollars for Obamacare cost-sharing expenditures without any congressional appropriation whatsoever, in these two cases, he has withdrawn them and sent them back to Congress.