During the international law conference organized by the Mathias Corvinus Collegium on September 27, 2023, the speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. The conference served as a platform for the Constitutional Discourse team to address these issues with Charles Kesler individually. The interview was conducted by Gergely Dobozi.

Charles Kesler, author of the “Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness” and Professor of Government at Claremont McKenna College and Claremont Graduate University.

Before we get straight to the matter, every time I have the opportunity to interview a foreigner visiting Budapest, I ask them about their experiences in Hungary and the number of times they have visited us. You are not exception either.

My wife and I are enjoying ourselves immensely. It’s my second time in Hungary. It’s her first. But I was here many years ago right after the fall of the Berlin Wall when Hungary was in a much poorer state than it is today. The city is really a glow now. It’s beautiful and the restaurants are excellent and of course the culture is extremely diverse.

In one of your books, you contend that the United States essentially possesses two constitutions. There’s one what you call the ‘founders’ Constitution’, and a progressive one. Would you please tell us more about this theory?

In America there is a kind of jostling between two divergent and contradictory systems. Two constitutions I call them–two ways of life, really. And you can see this in political events or political developments. For example, an interesting part of the American constitutional debate is about voting rights. This issue is also debated as voting rights could be separated into two different regimes: the first generation voting rights and second-generation voting rights.

Sorry for the interruption but are we talking about an evolution just like we can observe this in the fields of Constitutional Law itself?

No, it’s definitely not an evolution. You know there’s a contradiction between them. The first-generation voting rights are what the Voting Rights Act was supposed to secure back in 1965—access to the ballot. That you, an individual voter, could go to the polls, fill out your ballot, have it counted and made the best man win.

So, in this case, the significant thing was, that did you, as an individual exercise the individual right to vote?

Yes. The second-generation voting rights, however, is what’s called an effective vote.

What is an effective vote?

An effective vote is a vote that elects a person you approve of. Or, with other words, a winning vote, that empowers you—or more broadly—the ethnic, racial or political group to whom you belong. Theoretically it is not an authentic vote if a black person can’t elect a black candidate to office—that vote has been wasted. In order for an effective vote to count, the government has to know the race of the voter.

Whereas obviously you don’t have to know the race of the voter in the first case…

Yes, and you have to presume that the voter wants to vote for a person of his race and that that’s consistent and authentic. And those assumptions are all involve a very different view of what a vote is. That it’s an expression of a group rather than an individual.

Basically, what you’ve just said about this ‘second generation’ of voting rights, it’s about the individual being just a vessel that holds the group’s voting power provisionally in his hands, right?

Yes, and that leads to really not a Republican or a Democratic form of government in the traditional American sense, but to a kind of mixed racial regime, which proportional representation or something like that is necessary, essential. And if the voters don’t vote that way, the voters have made a mistake. That’s really a very different view of what the Constitution requires. Because ultimately, I think it implies a different constitution. A second, more progressive, more historically open-ended, a more historically insistent kind of constitution in which there’s a progressive way to vote. And if you don’t vote the progressive way, it’s the voter’s fault.

I see, so basically, we are talking about two moral regimes.

Yes. We’re talking about, you could say, a colour-blind constitution with a colour-blind vote, and a race-conscious constitution and a race-conscious vote.

Contemporary conservative political discourse in Hungary revolves around critiquing the West, while obviously, the vast majority of Hungarian conservatives align themselves with Western culture. Taking a more abstract approach, and based on what you’ve just said about the parallel constitutions in America, do you believe it’s valid to assert the existence of two distinct “Wests” in today’s world?

I agree, there is a kind of civil division within the West that’s widening. You could perhaps simplify the difference and say, one is a concept of sovereign individuals exercising their individual rights, and the other is a constitution of sovereign groups. And they can be defined in different ways as they can be defined by gender, by race, by income, by origin. But the difference is that the individual to the extent he has rights in the second model, gets them by being a member of the group. And the rights are specific to the group as it were. So, in the abstract, you might also have a kind of mixed constitution in which equality or human equality and liberty as the foundation principles are now qualified, severely qualified.

Let us move on to my next question concerning international diplomacy. The regulations concerning diplomatic immunity is a very specific area within the realms of international law. Based on those, diplomats are obliged to abstain from meddling in the internal affairs of the host state. Still in Hungary, the case is that the ambassador delegated by the White House does meddle into Hungarian domestic policy. Actually, reading the news one might have the impression that His Excellency acts like an indvidual actor of the Hungarian domestic political debates. Do you have anything to comment on this matter?

Well, I think the issues are connected because the traditional view is that the individual ambassador represents the president in a foreign country. And the gentleman we’re talking about is an ambassador of the United States and specifically from the President of the United States. And that’s it. His portfolio is to represent the, you might say, the old fashioned constitutional government of the country. In modern times, increasingly, the ambassador is a social ambassador for his group and his way of life. And he sent often deliberately to instruct the host country on its moral deficiencies, which is not the traditional job description of a United States ambassador.

Shifting our focus to the European context of public law, there’s an ongoing discourse over the future of the European Union. And arguably, some say that the European Union right now is increasingly shifting towards federalism, and on the way there, parallels can be drawn to the situation the United States was right before unition. This would mean that the European Union is in indeed in a Hamiltonian moment right now. This argument sounds tenable for me especially considering the rule of law framework, with the one sided, politically biased approach around that right now. Moreover, let’s not forget, that the whole framework is closely connected to fiscal issues and budgetary conditions. Do you agree or disagree with me?

Well, I don’t think Hamilton would approve of what you’ve just said about the current state of the European Union. Hamilton, first of all, starts from the framework of one country, a country with a constitution. And that country is divided into 13 states at the beginning. But they’re not 13 nations.

Please explain and enlighten the US side in this story.

The ‘Pre-USA’ states are not nations as they don’t speak 13 different languages, they don’t have 13 different histories really. I mean, they were always together in one way or another as parts of the British Empire and then as outside the British Empire. But it was an issue, of course, in American politics, which took the Civil War to solve, whether in fact, how far the independence of the states went and whether they had the power to secede. And from Hamilton’s point of view, the kind of the Republican government at the centre was unquestioned. I mean, there’s a certain sense in which the Constitution presupposes that all the states are Republican governments and gives the federal government the power to guarantee that. This is the so-called Republican guarantee clause of the Constitution.

So how does the picture look like in a European context?

Europe’s in a very different situation. I don’t think anyone or at least no one I know would say that the quality of Republican government and the degree of popular consent is at its highest in Brussels. Or, that the governments of the individual nations of Europe are much inferior in the quality of their democracy to that of the bureaucratic apparatus at the centre. I mean, the EU is an example of a late deformation in constitutional government, you might say, in the United States and in the world, namely bureaucracy. I mean, bureaucracy as such wasn’t yet a problem in the mid 18th century or the late 18th century. It became a problem later on.

So, you are basically implying that Hamilton wouldn’t lend his name to what’s currently going on in Brussels?

Hamilton, in fact, would be horrified by bureaucracy. I mean, he’s in favour of energetic executive power. That’s not bureaucracy. Bureaucracy is slow and inefficient and bossy and lazy, and it’s not George Washington. It’s not the kind of executive that Hamilton is thinking about.

Let us move on to my next question. I think one can say that the concept of state sovereignty was in its heyday at the time of the Westphalian treaty. And then came the international organizations, where concepts like subsidiarity and unanimity vote are guarantees of this classical concept, at least in my point of view. Hungary is often blamed by using the rules of unanimity to ascertain its sovereignty, maybe to enforce sovereignty within the Union. What do you think, does a nation state like Hungary really ‘bribe’ the European political actors by making its right to anonymity enforced within the voting system or is it just safeguarding its sovereignty challenged by the current EU bureaucracy?

Well, why can’t it do both? (laughs) I mean, it’s safeguarding its sovereignty, but it’s also emphasizing a key principle of federalism. That is the equality of the member states and their ability to separate their own domestic policy at least largely from regulation by the centre. I mean, that’s certainly the case in American federalism. So, from Brussels, Hungary’s behaviour might indeed be interpreted as ‘bribery’ in this context, I suppose. But also, why wouldn’t one regard that rather as playing the cards that one is dealt in the rules of the system, after all. Hungary’s not asking for something that is illegal, as the state is exercising its legal rights in a way that is—from a Brussels point of view—unpopular. But that shouldn’t be a deal breaker, as we say in America.

Today, within the European Union, there are tendencies towards getting rid of these guarantees I’ve just mentioned. What kind of future do you envision for the European Union if we cling on to the classical approaches and what waits for us if we get rid of them?

Well, if you don’t have some form of subsidiarity or broad independence, you run the risk of being ruled bureaucratically. And in today, the worse, I mean, it’s not just that, but attached to that principle, that means, is the new concept of rights, which is, I’m embarrassed to say, is an export from the United States.

Export?

It’s, in many ways the system of international human rights has been a convenient means to export very progressive American domestic debates into the government of the individual states of the world. And so, our strange or let’s say exotic human rights agenda involving elevating race and sex, especially to dominant categories in which to assess human rights and human identity has now become a worldwide phenomenon, and especially in Europe through the EU has become a European wide phenomenon, which is very unfortunate for Europe. I mean it’s unfortunate for America too by implication I think because the irrationality of its spreading while becoming more normal from the point of view of the practices of the world’s governments.

This has something to do with the ‘second constitution’ we’ve discussed earlier, doesn’t it?

Yes, that’s why I’ve said that this is sort of our fault, even though you also have NGOs with the same kind of agenda. But it is certainly a development of the second constitution. It’s a sign of the growing influence of what I call the progressive constitution over American morays and American law.

Can’t the conservatives do something about this?

I think they can and that’s why for example American conservatives have a very large agenda ahead of them to try to rein in the second constitution and to elevate the first constitution to the prominence that it once had but has lost or is losing, let’s say.

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Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.