The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I recently interviewed prominent conservative political theorist Charles Kesler for C-SPAN Book TV, on his interesting new book The Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness. The video is available here.
I tried to strike a balance between giving Kesler a chance to expound on the arguments of the book, and raising questions about points where I have reservations. To me, the most interesting part may be the exchange at roughly 20:00-31:00, where it becomes clear that Kesler's rationale for why we have to follow the original meaning of the Constitution is that it got unanimous consent. But he also eventually seems to concede that no such thing ever actually happened (e.g.—groups such as Loyalists and slaves either refused to consent or had no meaningful opportunity to do so). Even the members of the Constitutional Convention did not all consent to it, as three refused to sign (most notably, George Mason). My own rationale for originalism does not rely on consent theory.
I have discussed the issue of consent theory and its relationship to political legitimacy in greater detail in other work, such as in Chapter 1 of my recent book Free to Move: Foot Voting, Migration, and Political Freedom. C-SPAN has aired a video of a virtual talk I gave about the book at Harvard Law School.
At other points in the C-SPAN interview, I try to draw Kesler out on the extent to which he actually rejects the institutions and innovations established by advocates of what he calls the "progressive Constitution." It turns out he may accept a lot more of them than we might initially expect.
In the last few minutes, we discussed Kesler's views on whether there is an identitarian trend on the political right. In the book he is highly critical of left-wing "identity politics," but also notes some troubling similar developments on the right. That part of the interview also delves into Kesler's assessment of Donald Trump (which seems more critical after the January 6 insurrection and Trump's role in it). Nonetheless, my take on Trump and his movement remains far more negative than Kesler. I should emphasize, however, that only a small part of the book focuses on Trump, and that part was written before the 2020 election.
Though I differ on many points, the book is an interesting and often insightful take on constitutional history and theory. The video touches on several of Kesler's key ideas. Enjoy!