Postconstitutional America by Nathan Pinkoski | Articles | First Things
In his pessimism about American constitutionalism, Anton follows those who first transformed West Coast Straussianism, notably Charles Kesler, John Marini, Ronald J. Pestritto, and Bradley C. S. Watson. Aiming to describe more precisely than Jaffa did how the Constitution was lost, these men focused on American progressivism. For them, progressivism is a concrete project to replace the 1787 Constitution, as well as the principle of equality, with a new form of government: the administrative state. The administrative state denies the centrality of the principle of equality, and denies that the right to rule proceeds from the consent of the governed. In the administrative state, the governing class legitimates its power by appeals to expertise. A technocracy of the educated supersedes the democracy of the living and the dead.
During the twentieth century, the expansion of this kind of government affected every nation of the West. But unlike in other modern countries, in America it did not completely remove the old regime. The 1787 Constitution was neither explicitly overruled nor abolished. Instead, as the twentieth century wore on, the 1787 Constitution was overlaid by a second Constitution, which accorded with the ambitions of the progressive administrative state.
On this analysis, the American crisis is a constitutional crisis. Both constitutions the written one and the implicit progressive one operate. This means that power is exercised on the basis of two different understandings of the right to rule, two different legitimating principles. One is the principle of equality; the other is the claim of expertise. The crisis deepens because neither is strong enough fully to displace the other.
My problem is finding some reason to be hopeful about the whole thing.