10.1 Introduction

Can Hans Kelsen (1881–1973) help us understand present-day autocratic threats to US democracy? In this chapter, I argue that a neglected anti-Kelsenian moment has been decisive among an influential group of right-wing intellectuals who have not only enthusiastically supported Donald Trump but also actively embraced his authoritarianism. Although Trump and his presidency garnered little support among intellectuals, followers of the conservative German-Jewish émigré political philosopher Leo Strauss (1899–1973) affiliated with the Claremont Institute (at California’s Claremont McKenna College) constituted a striking exception to intellectuals’ broadly anti-Trump mood. Strauss’ ‘west coast’ or self-described ‘Claremonster’ followers quickly ‘appreciated and gave intellectual legitimacy’ when they openly advocated ‘the populist revolt against the politically correct contempt of the ruling class’, a revolt that they supported by embracing Trump’s cause.Footnote ¹ They thus reconfigured the Institute’s main publications, The Claremont Review of Books and The American Mind, into pro-Trump ideological vehicles, performed key official and semiofficial functions for Trump in Washington, DC, and played a significant role in both seeking to overturn the November 2020 presidential election results and justifying the violent January 6th attack on the US Capitol.Footnote ² Most shockingly, jurist and Claremont affiliate John Eastman worked energetically with Trump adviser Rudy Giuliani to halt Congress’ tallying of electoral college votes, drafting a memo to then Vice President Michael Pence explaining how he might effectively accomplish this.Footnote ³

The pivotal role of the so-called west coast Straussians at Claremont in enabling Trump has been evaluated by astute political commentators.Footnote ⁴ For serious observers (including many principled conservatives), there is no question that they actively abetted Trump’s worst authoritarian proclivities.Footnote ⁵

Nonetheless, the claim that the west-coast Straussians are motivated by a subterranean anti-Kelsenian movement, given Kelsen’s marginal status within recent US political thinking, will likely strike many and perhaps most readers as counterintuitive. Claremont Straussians who trained academically as political theorists or jurists are certainly familiar with Kelsen’s name. However, there is no evidence that they are versed in his ideas. Nevertheless, their intellectual guru was not only knowledgeable about Kelsen and his theory but also systematically engaged with it. As I hope to demonstrate, Strauss’s influential postwar defence of natural law directly attacked Hans Kelsen, perhaps its most incisive twentieth-century critic. Hence, Strauss’ west coast followers have implicitly built upon this anti-Kelsenian launching pad as part of their embrace of a hyper-presidentialist, basically autocratic makeover of US democracy. Strauss’ most influential study, Natural Right and History (1953), can and should be read, in part, as a critical response to Kelsen’s powerful critique of natural law.Footnote ⁶ As Elisabeth Lefort has correctly observed, ‘Kelsen rejects natural law and endorses moral relativism’, whereas Natural Right emphatically ‘calls for a rediscovery of natural right and rejects moral relativism’.Footnote ⁷ Strauss not only responded critically to Kelsen but, in effect, inverted his ideas by embracing natural law as a path beyond moral and political relativism, which Strauss forcefully rejected. That is, Kelsen’s intellectual and political polar opposite, Strauss, targeted him, one of twentieth-century political and legal thought’s most incisive critics of natural law. This anti-Kelsenian project is central to Natural Right, postwar American Straussianism’s Ur-text, and a key theoretical launching pad for Trump’s recent Straussian enthusiasts. West coast Straussians have therefore absorbed crucial facets of Strauss’s original rejoinder to Kelsen: the former’s more-or-less overt anti-Kelsenianism has morphed into their implicit or subterranean anti-Kelsenianism.

To validate this claim, this chapter not only revisits Strauss’ complicated dialogue with Kelsen but also highlights crucial moments in the arcane history of postwar American Straussianism. Is anything to be gained theoretically, and not just historically or politically, by our efforts? As I hope to demonstrate, Straussianism’s political programme tends to corroborate Kelsen’s worries that any attempt to revive natural law under contemporary conditions invites autocracy. It is no accident, in other words, that the revival of classical natural right has taken on increasingly authoritarian overtones, as vividly exemplified by the Claremonster love affair with Trump. In short, Strauss and his latest followers’ anti-Kelsenian project has failed in precisely some of the ways Kelsen predicted. In addition, although the following analysis focuses on the limited and perhaps unusual case of US democracy, it may provide broader lessons about present-day authoritarian populism.

10.2 Strauss and Hans Kelsen: A Neglected Dialogue

Strauss exploded onto the US intellectual scene with Natural Right and History (1953), a controversial critique of modern Western political philosophy and, by implication, modern politics that soon became essential reading for right-leaning political theorists.Footnote ⁸ Both Western political theory and practice had lost their bearings by rejecting natural right – the term Strauss preferred to the more familiar natural law – as expounded by Plato and Aristotle, Strauss’s intellectual heroes and, he posited, the West’s greatest sources of philosophical and political wisdom. In Strauss’ unabashedly nostalgic account, classical political philosophy relied on a teleological conception of nature as a source of universally valid moral distinctions. Classical natural right rested on eternal philosophical truths, with the idea of nature providing a sturdy basis for both morality and a sound, albeit undeniably hierarchical, political and social order. Most controversially, Natural Right insisted unambiguously on the superiority of ancient vis-à-vis modern thinkers. Even if many of the latter still spoke the language of natural right, they had robbed it of its normative merits. In Strauss’ creative but controversial re-readings of Niccolo Machiavelli, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and others, modern political philosophers divorced natural law ‘from the idea of man’s perfection’, replacing Greek antiquity’s admirable aspiration for a fully good order committed to the cultivation of virtue and pursuit of moral duties with individual rights and the modest quest for self-preservation.Footnote ⁹ The liberal Locke, for example, built on ‘“the low but solid ground” of selfishness or of certain “private vices”’.Footnote ¹⁰

Painting with a broad brush in Natural Right, Strauss traced how the rejection of classical natural right inevitably invited moral relativism. Bluntly, modern political thought had initiated a reduction in matters of right and wrong to arbitrary subjective preferences and thereby nihilism, or ‘the view that every preference, however evil, base, or insane’ is in principle ‘as legitimate as any other preference’.Footnote ¹¹ Absent a self-conscious retrieval of the great lessons of classical Greek antiquity, such relativism and nihilism entailed that the political universe would unavoidably be ‘darkened by the shadow of Hitler’ and other tyrants.Footnote ¹²

Kelsen makes only a brief appearance in Natural Right. However, the volume represents, in key respects, a pointed rejoinder to Kelsen’s principled anti-natural law position. Most obviously, its central target, relativism qua nihilism, is immediately linked in its opening pages to Kelsen: he and other modern liberals allegedly view the ‘abandonment of natural right not only with placidity but with relief’.Footnote ¹³ Through this view, hostility to natural right has become commonplace among the social sciences, characteristically modern and congenitally flawed endeavours due to their bracketing of core moral questions and endorsement of the fact/value divide. By rejecting natural right and the possibility of absolute moral knowledge, Kelsen and other liberals no longer delineated those views or standpoints deserving toleration from those to which liberal democracy must offer protection: natural right’s decay means tolerating even those bent on destroying liberalism. Liberals, then, celebrate tolerance without recognising its unavoidable limits.Footnote ¹⁴ Accordingly, Kelsen’s theory potentially provides ‘advice with equal competence and alacrity to tyrants as well as free peoples’, a harsh accusation documented in Natural Right with a passage from Allgemeine Staatslehre (1925), whereby Kelsen repeats his legal positivist view that even authoritarian states potentially possess elements of legality or the Rechtsstaat.Footnote ¹⁵ This claim, as Kelsen consistently argued, could only be challenged by recourse to naïve and unsound views of natural law. To this argument Strauss acerbically retorts, ‘Since Kelsen has not changed his attitude toward natural law, I cannot imagine why he has omitted this instructive passage from the English translation’.Footnote ¹⁶ Kelsen, it seems, failed to admit the errors of his ways by openly expressing, in the aftermath of Nazi tyranny, his misbegotten hostility to natural law: allegedly, the latest English version (General Theory of Law and State [1945])Footnote ¹⁷ of his earlier work had disingenuously ‘omitted’ the suspect passage. Even worse, Kelsen’s ‘rejection of natural right leads to nihilism – nay it is identical with nihilism’.Footnote ¹⁸ Hence, without additional comment or elaboration, Natural Right infers that Kelsen’s relativism entails a fundamental negation of any possible moral knowledge.

In a brief remark in ‘Foundations of Democracy’, Kelsen directly addressed Strauss’ accusation. General Theory was no mere translation of his earlier 1925 work; his postwar US writings never aimed to elide his longstanding view that both democratic and autocratic states could take identifiably legal forms.Footnote ¹⁹ Without mentioning Strauss, ‘Foundations’ also reiterated Kelsen’s claim that his neo-Kantian philosophical standpoint simply entailed that ‘value judgments have only relative validity’ in the sense that they ‘do not refer to values immanent in an absolute reality’, a view that by no means required denying the possibility of principled moral commitments or moral knowledge. Instead, it necessitated discarding the anachronistic, metaphysical and typically religious idea of an absolute moral value or ‘thing in itself’.Footnote ²⁰ Nature cannot be viewed as an immanent source of value: ‘is’ and ‘ought’ must be strictly separated. Moral and political inquiry, always and necessarily rooted in human experience and thus unavoidably fallible, does indeed rest on ‘objective’ normative laws; however, ‘these norms originate in the human mind’, not in a divine ‘thing in itself’ or absolute Good existing beyond or outside human cognition.Footnote ²¹ When properly conceived, a critical-relativistic understanding of morality and politics need not succumb to ‘the bottomless depth of subjectivism, into a boundless solipsism’.Footnote ²² Nevertheless, no individual or group can claim access to, let alone a monopoly over, privileged modes of a priori moral or political knowledge.

In short, Kelsen’s was an empirical-minded, fallibilistic, yet rational theory of value that, he always insisted, placed strict practical demands on us. That is, since it precludes passing the buck by allowing appeals to superhuman or transcendent ‘absolutes’, individuals need to take full responsibility for their moral and political choices. Kelsen conceived his relativism as the very opposite of irresponsible ‘nihilism’.Footnote ²³ By challenging the widespread but flawed belief in a transcendent, intrinsically superior good, it rendered moral and political questions ‘earthly’ matters subject to contestation and debate between and among persons forced to justify their positions to their peers. Undercutting traditionalistic religious and metaphysical justifications, relativism thus compelled ‘a recognition of the normative value of freedom as a right not to be subjected to forms of coercive power one has not consented to’.Footnote ²⁴ Without such a relativistic starting point, modern egalitarian ideas of liberalism and democracy made no sense.

Unfortunately, ‘Foundations of Democracy’ never directly responded to Strauss’ retrieval of natural law, although in a 1957 article Kelsen mentioned Natural Right alongside numerous other postwar efforts to revitalise Platonism, efforts Kelsen decidedly rejected, albeit without any specific references to Strauss’ rendition of this revival.Footnote ²⁵ A generation older than Strauss, Kelsen was of an advanced age when Strauss’ Natural Right began to gain traction among conservatives. Perhaps understandably, Kelsen failed to anticipate the inordinately large role it would play in the broader post-World War II revival of natural law thinking, a revival he frequently discussed and criticised. In contrast, Kelsen was already a prominent intellectual figure when the young Strauss first struggled to enter the German intellectual scene during the final years of the Weimar Republic. Not surprisingly, then, Strauss lacked the luxury of ignoring the senior scholar’s work, evidenced most clearly in his illuminating but frequently neglected (1931) critical interrogation of Kelsen’s Die philosophischen Grundlagen der Naturrechtslehre und des Rectspositivismus (1928).Footnote ²⁶ As the German scholar Peter Gostmann has correctly pointed out, Strauss’ planned (but only posthumously published) ‘Foreword’ (1931) to his subsequent Hobbes book effectively served as a launching pad for the fame and influence of Strauss’ Natural Right.Footnote ²⁷ Crucially, this ‘Foreword’ concludes with a sketch of Natural Right’s general programmatic agenda and, as such, buttresses my claim that we can read Strauss’ influential postwar work as an expressly anti-Kelsenian intervention.

Specifically, Strauss’ proposed ‘Foreword’ initially pursues a line of argumentation familiar among many other natural law-oriented critics of Kelsen: despite his strict insistence on the ‘purity’ of legal positivism, Kelsen had smuggled controversial moral and normative assumptions into it. Contra Kelsen’s insistence on this pure theory’s political ‘indifference’, the young Strauss wondered whether ‘such a position [is] even possible?’Footnote ²⁸ Based on what we might loosely describe as an immanent critique of Kelsen, Strauss answered in the negative. First, Kelsen’s reading of natural law as little more than an ‘ideological’ football in a political game between opposing interest groups neglected that not all such groups deserve to be treated equally: some groups advance interests that may be common or general in character, while others are indeed narrowly partisan and even selfish.Footnote ²⁹ Lurking behind Kelsen’s sceptical, ideology-critical reading of natural law was a ‘crypto-Marxist’ suspicion of all ideologies, a position Strauss suggested amounted to a latent or concealed version of natural law, as certain natural right ideas had been ‘sublated’ within Marxism.Footnote ³⁰ Second, he highlighted Kelsen’s view that legal positivism thrives in relatively peaceful times characterised by a ‘social balance’.Footnote ³¹ For Strauss, this represented not only an implicit commitment to peace as a value or standard but also a controversial normative denial of the ‘entire dangerousness’ of humankind, something he lauded Hobbes, in contrast to Kelsen, for appreciating.Footnote ³² Hence, positivism also rests on decidedly more contentious presuppositions than Kelsen had conceded. Third, language itself ‘is a powerful ally of natural right’, as evidenced in how jurists inevitably rely on a notion of ‘right’ that contains moral and ethical but by no means exclusively legal connotations.Footnote ³³ Kelsen’s legal positivism, it seems, could not even do justice to law’s ordinary, irrepressibly moral language.

For our purposes, the most interesting part of Strauss’ response is embedded in the ‘Foreword’s’ final pages, where he concedes that immanent ‘[c]onsiderations of the preceding kind have very limited value’ since they merely demonstrate that natural law’s critics rely on some of its residual elements. Kelsen and other ‘opponents of natural right claim to be able to show, with compelling reasons, that natural right is itself impossible. We must therefore reexamine whether the alleged reasons of the opponents … are valid’.Footnote ³⁴ In particular, what irritated Strauss was the accusation that natural right was necessarily ‘empty’ and/or fundamentally open-ended, whereby it had taken a vast array of competing and ultimately contradictory historical forms. Precisely this criticism had been levelled against natural law thinking by Kelsen: while highlighting its basically conservative contours, he simultaneously described natural law theories as embodying ‘the most contradictory principles of justice’.Footnote ³⁵ In response, Strauss noted that the existence of an ‘anarchy within the doctrine of natural right’ seems initially indisputable.Footnote ³⁶ In other words, ‘Hobbes opposes Grotius, Rousseau opposes Hobbes, etc. : but are the reasons cogent?’ Unswayed by Kelsen’s anti-natural law position, Strauss added, ‘The reasons with which the various natural right teachers oppose each other must be examined. Prior to this examination, it cannot be simply said whether in the end one of the natural right teachings feuded against by all the other philosophers is not the right teaching’. The seeming indeterminacy of natural law hardly excluded the possibility that one or more of its versions might prove philosophically defensible. Rather than dogmatically excluding such a prospect on the basis of Kelsen’s flawed positivist assumptions, a wide range of rival natural right doctrines should thus instead be sympathetically re-examined and reconsidered: ‘From the fact that agreement of opinion has not so far been obtained in the natural right teaching, nothing follows against the possibility of natural right’.Footnote ³⁷

In a November 1931 letter to Gerhard Krüger describing the ‘Foreword’, Strauss was even more forthright concerning his own proposed project’s contours: against a crude ‘historical consciousness’ – which Natural Right would subsequently pillory as ‘historicism’ – Strauss proposed regaining ‘the ancient freedom of philosophy’ [die antike Freiheit des Philosophierens] to combat contemporary prejudices.Footnote ³⁸ In opposition to those who depreciated natural law’s cognitive claims by focusing on their ideological and historically specific traits, he aimed instead to take them seriously.

Precisely this task became the centrepiece of Natural Right, where Strauss offered a sustained historical survey of competing natural right philosophies, motivated in part by the seemingly naïve premise that ‘a detached, theoretical, impartial discussion’ might successfully demonstrate not only the necessity but also the viability of certain versions of natural law.Footnote ³⁹ Only a series of ‘historical studies’ could allow us properly to ‘familiarise ourselves with the whole complexity of the issue’, something Kelsen and other natural law critics had apparently failed to accomplish.Footnote ⁴⁰ Although chronological and thus at first glance historical, such studies would nonetheless embody the ‘ancient freedom of philosophy’. By doing so, Strauss aimed to counter reductionist ‘historicist’ readings that had reduced rival natural law views to competing, time-bound ideologies rather than rigorous philosophical systems meriting careful consideration.

When directly viewed against its anti-Kelsenian backdrop, some of the more striking – and unusual – features of Strauss’ alternative gloss on natural law stand out. To be sure, both authors consistently highlighted natural law’s teleological contours and how it ‘satisfies a deeply rooted need of the human mind, the need for justification’.Footnote ⁴¹ However, while Kelsen viewed Plato as a ‘classical representative’ of natural law’s most intellectually troublesome and authoritarian variants, Strauss tried to salvage Plato and other so-called classical natural right figures (e.g., Aristotle) whom he perceived to follow in Plato’s footsteps.Footnote ⁴² For Kelsen, however, Platonic natural law anticipated ‘the ideology of every autocracy’.Footnote ⁴³ Plato’s view of the highest good as ‘beyond all rational or scientific knowledge’ and ultimately accessible only to an intellectual elite via a mystical ‘illumination which occurs in a moment of ecstasy’ spoke volumes about its autocratic features.Footnote ⁴⁴ In stark contrast, Strauss considered Plato’s revival the best way to safeguard against modern-day nihilism and tyranny.Footnote ⁴⁵

Moreover, Kelsen interpreted natural law, in contrast to dynamic positive law, as unchanging and immutable.Footnote ⁴⁶ Interestingly, Strauss’ discussion of Aristotle instead emphasised its mutable and changeable features: one of Aristotle’s key innovations was upholding the idea of eternal natural right while admitting ‘the mutability of all rules of justice’.Footnote ⁴⁷ For Kelsen, natural law rested, by necessity, on metaphysical and typically religious ideas. With absolute value interpreted to be inherent in nature, natural law was always parasitical on some belief, more or less expressed, in the ‘superhuman … divine, the absolute reason’Footnote ⁴⁸ Natural Right also directly challenged this claim: natural right’s origins in classical antiquity could instead be traced to doubts and critical questions regarding divinely revealed law.Footnote ⁴⁹ Knowledge of natural right could thus only be acquired by autonomous human efforts and reason, unassisted by divinity.Footnote ⁵⁰ Certainly, once natural right was discovered, it could easily ‘be adjusted to the belief in the existence of divinely revealed law’.Footnote ⁵¹ However, the marriage of natural law and divinity was historically contingent rather than, as Kelsen suggested, probably necessary.

This last point is pivotal if we are to unpack Strauss’ critical response to Kelsen. For Kelsen, natural law not only depends on metaphysical and religious premises but also thereby invites philosophical absolutism with autocratic connotations. Positing the existence of (usually divine) values, inhering in nature and claiming absolute validity, natural law appeals to a transcendent realm beyond human experience. Its norms are ‘ideally independent of human action and volition’.Footnote ⁵² Natural law doctrines, then, depend on ‘the metaphysical view that there is an absolute reality, that is, a reality that exists independently of human knowledge’.Footnote ⁵³ In such a view, the object of cognition is independent of the subject of cognition, ‘totally determined in his [sic] cognition by heteronomous law’.Footnote ⁵⁴ Similarly, political absolutism implies the existence of government power beyond the influence of its subjects, i.e., laws are heteronomously determined by a leader ‘imagined as an authority that stands outside the community’.Footnote ⁵⁵ Both philosophical and political absolutism degrade human autonomy by viewing human beings as subject to laws over which they have no control.

According to Kelsen, the parallels between philosophical and political absolutism have far-reaching, real-life consequences. By devalorising human cognition and experience, philosophical absolutism undermines any possibility of a principled commitment to human equality. The belief in the intrinsic superiority of some transcendent, absolute good removes moral and political deliberation from the ‘earthly’ realm of real-life existence where individuals must justify their choices to one another. Philosophical absolutism therefore opens the door to authoritarianism, whereby those believing themselves outfitted with privileged wisdom assert their right to rule over those allegedly lacking such wisdom. According to Kelsen,

In contrast to Kelsen’s relativism, philosophical absolutism posits a ‘fundamental inequality in relation to the absolute and supreme being’, or, at the very least, to a monarch or dictator who claims the status of ‘divine hero’, necessarily standing above ‘the profane masses’.Footnote ⁵⁷ To justify supreme power, rulers present themselves ‘directly or indirectly, as authorised by the only true absolute, the supreme superhuman being’, a tendency Kelsen deemed still prevalent in contemporary authoritarian and totalitarian regimes.Footnote ⁵⁸ From this perspective, it was no historical accident that while natural law’s most outspoken defenders regularly embraced autocracy, those akin to Kelsen, who acknowledged the unintelligibility of an absolute ‘thing in itself’ and endorsed a postmetaphysical, relativistic account of value, favoured democracy.

By challenging natural right’s religious and perhaps metaphysical credentials, Strauss may have thought he could circumvent the dangers of philosophical absolutism that Kelsen had diagnosed. Might natural right be salvaged, in other words, without paving the way for authoritarianism? Could we revitalise classical natural right without the rule of Platonic philosopher kings or, more generally, more familiar autocrats via appeals to absolute moral truth? The opening pages of Natural Right, where Strauss evokes the Declaration of Independence and its appeals to the ‘self-evident’ rights to life, liberty, and happiness, suggest that he thought it might be possible to do so.Footnote ⁵⁹ Indeed, he at least seems to infer that US democracy might have some, albeit perhaps limited, relation to the old idea of natural right as eternal or absolute moral reality.

As I attempt to show in the following section in this chapter, however, Strauss and his followers ultimately failed in this endeavour. Despite his anti-Kelsenian orientation, Strauss – and even more unequivocally, his more recent west coast US – succumbed to precisely the authoritarian perils that Kelsen predicted. Like oil and water, modern democracy and classical natural right, interpreted as hierarchical and anti-egalitarian, do not mix.

10.3 Leo Strauss: Making America Great Again?

Natural Right’s brief reference to the Declaration of Independence notwithstanding, its readers will search in vain for a satisfactory defence of modern political egalitarianism, let alone modern democracy. According to Strauss’ decidedly backwards-looking exercise in historical and philosophical retrieval, ‘[i]t is the hierarchic order of man’s natural constitution which supplies the basis for natural right as the classics understood it’ – that is, Plato and other classical authors ‘were not egalitarians’.Footnote ⁶⁰ Predictably, Strauss was deeply critical of the authors (e.g., Locke, Rousseau) usually associated with the rise of modern ideas of equality, liberalism, and democracy. Nor did he have much if anything positive to say about other pertinent modern figures (e.g., Immanuel Kant, John Stuart Mill, or John Dewey).Footnote ⁶¹ To be sure, Natural Right openly acknowledged that classical natural right ‘would act as a dynamite for civil society’.Footnote ⁶² In other words, it was both irresponsible and unrealistic to try to realise Plato’s model of wise philosophical rulership in contemporary conditions. Some element of consent and the rule, not of a wise philosopher but a mixed, law-governed regime in which ‘gentlemen’ or ‘well-bred’ men ‘of not too great inherited wealth’ dominate, probably represented classical natural right’s best achievable version.Footnote ⁶³

Nonetheless, it remains difficult to conceive how even some modest, real-life approximation of classical natural right, to the extent that its anti-egalitarian core could remain intact, could ever provide much of a basis for justifying modern democracy. Indeed, one can easily imagine Kelsen rightly noting that Strauss’ distinction between esoteric and exoteric knowledge betrays his neo-Platonic and decidedly anti-egalitarian, autocratic outlook. According to Strauss, because philosophy or science ‘must remain the preserve of a small minority’, its practitioners

Hence, true knowledge of ‘natural right’ – and thus absolute moral and political wisdom – is only available, as Plato originally argued, to ‘true’ philosophers who have undergone long and rigorous training. Even in Strauss’ somewhat watered-down Platonism, we find precisely this tendency to degrade the ‘great multitude’ vis-à-vis some version of the (supposedly) wise elite with privileged access to the ‘absolute’ that so worried Kelsen.Footnote ⁶⁵ As Kelsen had forewarned, such backwards-looking, traditionalistic ideas about natural law debilitate rather than ground modern liberalism and democracy.

Not surprisingly, many of Strauss’ postwar American disciples rapidly devoted their intellectual energy to delineating the ways in which his ideas might nonetheless provide some grounding to modern liberal democracy.Footnote ⁶⁶ This task preoccupied the Straussians in part because it was akin to squaring the circle; classical antiquity’s version of natural law and modern political egalitarianism seemed irreconcilable. Moreover, as political conservatives eager to defend not only the United States but also a hard-line anti-communist foreign policy, it was imperative for them to enlist Strauss in their cause. However, Strauss’s reactionary classicism and rejection of the core features of political modernity impeded any principled defence of postwar liberal democracy. Furthermore, few, if any, of the postwar Straussians seem to have been versed in the intricacies of Kelsen’s theory. Nevertheless, we can interpret their efforts, in part, as implicit or subterranean attempts to respond to Kelsen’s principled critique of natural law and his concerns with its autocratic implications. That is, Kelsen always remained an unidentified target of their efforts.

In fairness, some textual evidence suggests that Strauss struggled to identify grounds for any pragmatic or perhaps ‘qualified embrace’ of liberal democracy.Footnote ⁶⁷ On various occasions, he suggested, as in his remarks on the Declaration of Independence, that elements of classical natural right had survived, at least in Anglophone liberal democracies. In a 1941 lecture on ‘German Nihilism’ given at the New School for Social Research, he commented positively on England’s ‘very un-German prudence and moderation’.Footnote ⁶⁸ Strauss had spent his early years as a refugee from Nazism in England, and its political culture had apparently impressed him.Footnote ⁶⁹ Interestingly, Natural Right’s sympathetic discussion of the iconic British conservative Edmund Burke idiosyncratically claims that his critique of the French Revolution rested partly on elements of classical natural right.Footnote ⁷⁰ Elsewhere, Strauss observed how the framers of the US Constitution spoke not just a modern liberal but also republican political language with ancient roots: ‘Let us also remember that the authors of The Federalist Papers signed themselves “Publius”: republicanism points back to classical republicanism and therefore also to classical antiquity’.Footnote ⁷¹ The American Republic was, of course, preferable to communism and fascism: ‘liberal democracy, in contradistinction to communism and fascism, derives powerful support from a way of thinking which cannot be called modern at all: the premodern thought of our western tradition’.Footnote ⁷² At any rate, liberal democratic regimes, despite their permissive egalitarianism, relativistic and even nihilistic tendencies, and ubiquitous conformism, had provided safe spaces for those devoted to the pursuit of moral excellence and classical philosophical education.Footnote ⁷³

However, the fact remains that Strauss never systematically linked the defence of classical natural right to a sustained justification of modern democracy in general or US liberal democracy in particular. To the extent that he fused the resuscitation of natural law with an appreciation for some features of postwar America, this fusion was always messy and would probably be unstable.

Precisely this liberal and democratic Achilles’ heel has played a major role in the debates between so-called east coast and west coast Straussians. The US Straussian geographical divide has complex biographical, intellectual, and political features; I lack sufficient space to explore them here.Footnote ⁷⁴ However, this divide remains crucial to our story for the simple reason that many west coast (i.e., mostly Claremont-based and/or trained) but few east coast (based at Harvard, Yale, etc.) Straussians have joined the Trumpist bandwagon. Significantly, Strauss’s more orthodox east coast followers often reproduce his qualified, rather cautious endorsement of liberal democracy generally and the United States specifically. They emphasise America’s Lockean genealogy, for example, and follow Strauss in claiming that its origins in decadent modern natural right have ultimately invited relativism and nihilism.Footnote ⁷⁵ Such ambivalence has probably helped immunise them against Trump’s extreme ‘America First’ jingoism. In contrast, west coast Straussians, such as the late Harry V. Jaffa, their most influential figure, have rejected such ambivalence, instead devoting their efforts to reinterpreting the US as the world’s very ‘best regime’.Footnote ⁷⁶ Hence, they have amplified Strauss’ remarks pointing, albeit incompletely and inconclusively, in the direction of a more positive gloss on US liberal democracy.

How Jaffa and his many Claremont offspring have creatively tapped Strauss to ground this flattering portrayal of the United States has been extensively examined.Footnote ⁷⁷ Committed to hard right US political views, Jaffa and others remained unsatisfied with Strauss’ own less-than-enthusiastic defence of the USA: they needed to go further. As Catherine and Michael Zuckert have demonstrated, the centrepiece of the resulting west coast Straussian project involves ‘Aristotelianising America’, that is, creatively rediscovering elements of classical natural right within the US political tradition and, specifically, its founding conjuncture.Footnote ⁷⁸ From this perspective, the US framers and some later iconic political figures (e.g., Abraham Lincoln) were not just Lockean liberals or products of a decadent modernity. Rather, they had tapped classical antiquity and Aristotle, or at least Aristotle interpreted along anti-egalitarian lines and as Plato’s pupil.Footnote ⁷⁹ Additionally, while the Declaration of Independence remains the revolutionary period’s greatest theoretical statement, it should be read – far more straightforwardly than Strauss ever inferred – as a still perhaps unrivalled attempt to salvage classical natural right.

This theoretical shift tilled the soil for the recent Claremont embrace of Trump’s extreme nationalism. In a prescient 1985 critique in the conservative National Review, east coast (and then Toronto-based) Straussian Thomas Pangle warned that the west coast revision of Strauss’ legacy risked culminating in a ‘new mythic Americanism’: its celebratory gloss on America’s founding invited a blind patriotism that denigrated those with competing views as ‘un-American’.Footnote ⁸⁰ Thus, fulfilling this prediction, many west coast Straussians immediately closed ranks around Trump’s jingoism. A revealing 2019 Trump speech given at a White House ceremony rewarding the Claremont Institute with the prestigious National Humanities Medal aptly captures this superpatriotic ideological overlap:

Nonetheless, this shared discourse of ‘American greatness’ only partially explains the west coast Straussian dalliance with Trump; it neglects the pivotal role of their astonishingly expansive – and basically autocratic – view of executive or presidential power. What Ken Kersch has astutely characterised as the idea of a redemptive ‘messianic presidency’ rooted in fundamental law and natural right has been pivotal in the Claremonsters’ Trumpist gambit.Footnote ⁸² Jaffa and his west coast allies may have ‘saved’ American democracy for the Straussians by reinterpreting it as based on elements of classical natural right, but only at the cost of unleashing its autocratic potential.

Concerning this matter, Kelsen also proves remarkably prescient. A principled defender of parliamentary government, he worried that presidential regimes amid a strict separation of powers where the executive is directly elected by the people heighten the ‘chances of an – even temporary – autocracy’ by inviting unaccountable political leaders who surround themselves with ‘the halo of divine origin or of magical powers’.Footnote ⁸³ In a so-called presidential democracy, ‘[w]here there is only one elected individual for millions of voters, the idea of popular representation must lose every last pretense of legitimacy’, as a president enjoying complete independence from the legislature ‘cannot be [realistically] controlled by a populace too massive to take [effective] action’.Footnote ⁸⁴ Kelsen thus questioned whether presidential regimes could flourish qua democracies or even deserved to be described as such: General Theory even went so far as to classify them as ‘autocracies’, grouping them alongside constitutional monarchies and modern party dictatorships.Footnote ⁸⁵ In Essence and Value of Democracy, Kelsen noted that it was ‘a matter of historical irony when a republic such as the United States of America faithfully’ adopts a presidential system: given that the American presidency ‘is a conscious imitation of the position of king in England’, it not only conflicts with the core features of modern democracy but also invites irresponsible, pseudo-democratic leadership.Footnote ⁸⁶ In autocratic states, political leaders are viewed as standing above the social community; their selection is ‘beyond question and cannot be objects for or captured by rational inquiry. Leadership … represents an absolute value, which is expressed in the deification of the leader’.Footnote ⁸⁷ Typically, autocracies rely on some version of the obsolescent idea of a supreme or transcendent moral or political good, accessible only to leaders possessing superhuman or supernatural qualities. Accordingly, such regimes tend to mask ‘the most important problem[s] in politics with a mystical-religious veil’.Footnote ⁸⁸ America’s presidential democracy, Kelsen suggested, risked succumbing to precisely such dangers.

Whatever its virtues as an empirical account of presidential democracy or its US rendition, Kelsen’s thought aptly captures the core traits of the proposed west coast Straussian institutional makeover. This autocratic, hyper-presidentialist makeover’s main theoretical source remains Jaffa’s Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (1982 [1959]),Footnote ⁸⁹ a fascinating yet tendentious reinterpretation of Lincoln and especially his Civil War presidency. In Jaffa’s narrative, Lincoln fights the good (Straussian) war against his political rival and – according to Jaffa – moral relativist Senator Stephen Douglas. Pace Lincoln’s self-interpretation of his political positions as congruent with the Declaration of Independence and the framers, Jaffa interpreted Lincoln as revising the founders’ problematic brand of Lockeanism. Lincoln thus supposedly tapped elements of classical natural right to refound the American polity while preserving ‘the central constitutive element of American nationality’, which was interpreted by Lincoln in an Aristotelian vein.Footnote ⁹⁰ Natural equality, for example, was reconnected to the idea of moral duty and quest for virtue: equality became ‘a condition toward which men have a duty ever to strive, not a condition from which they have a right to escape’.Footnote ⁹¹ The republic’s ‘low but solid’ Lockean grounds were elevated, Jaffa argued, by Lincoln’s Aristotelian revision of the Declaration of Independence in particular, which constitutes a sturdier philosophical building block than the US Constitution.Footnote ⁹² As the philosopher-statesman Lincoln had apparently grasped, the republic demanded leaders ‘of transcendent ability and virtue’, alone capable of thwarting populist demagogues.Footnote ⁹³ Douglas, who viewed local (white male) popular sovereignty as the proper arbiter of slavery, represented just such a threat. The salient paradox, however, was that ‘Caesar must be encountered by one who has all Caesar’s talent for domination, one who could, if he would, govern the people without their consent, but who prefers the people’s freedom to their domination’.Footnote ⁹⁴ In short, ‘[m]essianic ambition must counteract the Caesarian’.Footnote ⁹⁵ Luckily, America had produced just such a messianic, superhuman political leader in Lincoln, who in Jaffa’s account represents nothing less than a world-historical figure who successfully synthesised the optimal mix of moral virtue, statesmanship, and fidelity with classical natural right.

Following its publication, conservative critics quickly pointed out that Crisis of the House Divided offered a possible justification for modern presidents to pursue an open-ended overhaul of the US constitutional order.Footnote ⁹⁶ In effect, Jaffa had defended the possibility of a revolutionary (or what Carl Schmitt called sovereign) dictatorship, something that alarmed those favouring limited government and hostile to Franklin D. Roosevelt and others on the liberal-left who had expanded presidential authority.Footnote ⁹⁷ In response, Jaffa’s long-awaited follow-up volume, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (2000),Footnote ⁹⁸ narrowed the gap between Lincoln and America’s founding, with Lincoln reappearing as a loyal exegete of the framers and reinterpreted in an even more Aristotelian light than in Crisis of the House Divided.Footnote ⁹⁹ Lincoln remained a heroic figure, but, in the context of the Civil War, he was no longer depicted as the author of a second American Revolution but as manifesting its final anti-slavery moment. No revolutionary or sovereign dictator, Lincoln, became, in Schmitt’s terms, a commissarial dictator tasked with preserving the original moral and political aims of America’s founding and, thereby, the key elements of classical natural right.

However, even in Jaffa’s updated exposition, the presidency remained an institutional launching pad for wide-ranging constitutional and political upheaval and, potentially, a frontal assault on any political developments that had (allegedly) eviscerated the framers’ original, morally superior intentions. Only the exceptional and seemingly superhuman Lincoln, outfitted with vast wartime executive powers, had preserved the American Republic and its sound Aristotelian foundations. Given Jaffa’s overwhelmingly pessimistic remarks on the contours of recent US political trends, why not seek another messianic figure of ‘transcendent ability and virtue’ to restore the republic to its classical roots? In light of relativism’s continued sway over and nihilism’s obvious perils to US democracy, why not seek another presidential superhero capable of ensuring the republic’s fidelity to its original foundations in natural law?

Precisely this intuition has helped motivate many of Jaffa’s students and Claremont disciples to embrace Trump. Like Jaffa, they endorse the worrisome, implicitly autocratic idea of a redemptive messianic presidency tasked with revitalising the republic’s original natural law foundations. The result? The heroic yet tragic figure of Lincoln, reluctantly forced to sacrifice millions to save the union and destroy slavery, has been jettisoned in favour of Trump, a failed business executive and con artist.

Claremont Straussianism’s most prominent contemporary figure, pro-Trump political theorist Charles Kesler, the editor of The Claremont Review of Books, not only views America’s founding as established on elements of classical natural right but also hopes that heroic leadership might successfully ‘revive the founders’ wise principles and fortify them again with prudent statesmanship’.Footnote ¹⁰⁰ In his post-2020 election postmortem, he laments Trump’s missed opportunity to revitalise the republic by halting the continuing ‘consolidation and expansion of progressivism’, something that Reagan and other GOP leaders had previously failed to thwart by acquiescing to the administrative state’s cancerous growth.Footnote ¹⁰¹ Trump was better positioned than ‘establishment’ GOP political figures to accomplish this because ‘only a genuine outsider could have smashed it’.Footnote ¹⁰² Astonishingly, Trump’s disdain for longstanding political mores, institutional norms, and the rule of law is brushed aside. Why? According to Kesler, ‘[t]here is an old distinction – between constitutional law and the law of the Constitution – that might be repurposed here’. That is, Trump stands valiantly on the side of the latter and against the former, which has been polluted by poisonous liberal and progressive public policies and reforms. Judicial precedents that could impede Trump should be interpreted as diseased products of a ‘second’ liberal-progressive constitutional system and thus ‘are not of interest to us’.Footnote ¹⁰³ The main threat to the republic, it seems, is the burgeoning ‘administrative state’, an offshoot of a decadent liberalism and something never intended by the framers.

Here, Kesler thus openly praises Trump’s ‘courage in defence of one’s own’.Footnote ¹⁰⁴ He concedes that the Trump administration was at times ‘a mess’; however, fortunately, ‘competent people [including of course, many from the Claremont Institute] eventually were found’ to work alongside him.Footnote ¹⁰⁵ Furthermore, ‘In his confidence in America’s principles and in the ultimate justice of the people … Trump resembles those brave conservatives’ – including Clarence Thomas, the Claremont Straussians’ favourite supreme court justice – who continue to resist the administrative state and dangerous, left-wing ‘guilt-mongering’ concerning race and gender.Footnote ¹⁰⁶ Trump’s failure to gain a second term has entailed that the US remains in a dire existential crisis, a view apparently shared by many others from Claremont.Footnote ¹⁰⁷

As an erstwhile political advisor to the right-wing and failed GOP presidential candidate Barry Goldwater, Jaffa’s initial Straussian philosophical standpoint was supportive of hardcore partisan views. His present-day Trumpist offspring have taken things a step further: their defences of classical natural right have often been indistinguishable from their partisan war against the administrative – and especially the welfare – state and so-called ‘woke’ left-liberal politics, which they simply consider more evidence of contemporary America’s pernicious moral relativism and nihilism. The Claremont Straussian call for a strong executive thus seems based less on principled institutional or constitutional reflections than a desire for a heroic leader who embodies their own reactionary political preferences. Strauss’ original defence of classical natural right has been directly fused with right-wing politics and the search for a political superman. As Kelsen precisely predicted, difficult political matters calling for rational deliberation and political contestation remain too often obscured by the ‘mystical veil’ of classic natural law theory.

Kelsen might also have predicted that this odd intellectual and political medley would necessarily leave ‘the question of who should become leader and how they should do so … to the arbitrariness of force’.Footnote ¹⁰⁸ In fact, far too many of the self-described Claremonsters – most infamously, Eastman, who tried to roll back the 2020 election and defended the violent attempted takeover of the US Capitol – have expressed few if any reservations about supporting Trump’s attempted coup. Having determined that Trump’s presidency was the best vehicle for rekindling classical natural law and saving the republic from its enemies, it became necessary to conceive of him as a quasi-divine political hero standing above ordinary political and constitutional mechanisms. In the west coast Straussian imagination, Trump’s re-election was necessarily ‘beyond question’ and could never be a legitimate object for ‘rational inquiry’.Footnote ¹⁰⁹ The autocratic leader ‘must be imagined as the force that first brings society into being’, a personalisation of ‘absolute value, which is expressed in the deification of the leader’.Footnote ¹¹⁰

10.4 Conclusion: Democracy or Authoritarian Populism?

This chapter has argued that Leo Strauss’s prominent postwar attempt to salvage natural law targeted Hans Kelsen and that Strauss’ west coast disciples then implicitly relied on this anti-Kelsenian starting point to reconfigure US democracy along autocratic lines. In effect, Strauss and his pro-Trump followers seem to have confirmed many of Kelsen’s anxieties concerning the illiberal and anti-democratic consequences of any attempt to revive traditional natural law. Although Kelsen’s embrace of relativism does not necessarily represent the final word in democratic theory, the fact that his thought has proved so prescient regarding many features of the story I have tried to retell should give pause even to those unconvinced by his brand of neo-Kantianism.Footnote ¹¹¹

In a pivotal debate with Carl Schmitt during the Weimar Republic’s final years, Kelsen criticised a view of autocratic presidentialism with some unsettling parallels to that of contemporary west coast Straussians. In a heated exchange concerning the Weimar Constitution’s proper ‘guardian’, Kelsen argued that the judiciary and, ultimately, the constitutional court were best positioned, institutionally, to prevent constitutional violations. In contrast, Schmitt tasked the presidential executive with these requisite protective functions. As Kelsen was well aware, Schmitt’s position was both constitutionally dubious and politically disingenuous; by 1931, the executive had already threatened German democracy. In Kelsen’s refreshingly sober formulation, the ‘power of control must not be conferred upon one of the organs whose acts are to be subject to control’.Footnote ¹¹² Since 1930, Schmitt had been actively working as a public intellectual and legal advisor in support of the right-wing emergency regime’s legally dubious expansion of executive authority. Schmitt justified the president’s sovereign and not merely commissarial dictatorial powers with an appeal to the president’s role as a direct embodiment of the republic’s original, constitution-making power.Footnote ¹¹³ During Weimar’s final years, Schmitt thus aggressively defended an effectively unchecked presidency by, in part, interpreting it as directly representing the German people’s ‘unified homogeneous collective’ will.Footnote ¹¹⁴

By doing so, Schmitt – Kelsen bluntly countered – had confused ideology with reality. When viewed not simply as a symbolic but real-life expression of a unified German people, the presidency in Schmitt’s account conveniently functioned to mask ‘the actually existing, radical conflict of interest that expresses itself in the existence of political parties and in the even more important fact of class struggle’. The misleading ideology of the president, as an unmediated embodiment of a ‘unified collective interest’ or ‘solidarity of interests’ among all Germans, tapped an antipluralistic, quasi-monarchical ‘fiction of representation’ that obfuscated their very real political and social divides.Footnote ¹¹⁵ Such ideology, Kelsen argued, impeded any serious attempt to address political conflict in a peaceful and productive fashion. It also rendered the requisite political compromises unlikely and hindered the political give-and-take essential to democratic politics. Rather than freely tackling the genuine political challenges at hand, Germans risked succumbing to a dangerous ideological illusion that satisfied certain psychological needs but nonetheless was destined to be counterproductive. Schmitt’s misleading analysis simply encouraged them to accept those illusions.

Kelsen’s critique remains astonishingly timely. Contemporary authoritarian populism similarly depicts its leading figures as direct embodiments of a ‘people presumed to be one in the figure of a devoted leader’, in part to obfuscate the political community’s actual ‘internal tensions and … diversity’.Footnote ¹¹⁶ Unfortunately, not only Trump and his Straussian groupies but also many others elsewhere are now peddling the antipluralistic and antidemocratic myth that the heroic political leader is a direct embodiment and ‘organ of the people’s body’.Footnote ¹¹⁷ Not surprisingly, they also usually favour hyper-presidentialism over parliamentary government.

To be sure, in contrast to Strauss and his followers, Schmitt vehemently rejected any idea of natural law. Significant theoretical and political differences also distinguish Schmitt from Strauss. History does not, in fact, ‘repeat itself’. Nevertheless, west coast Straussian hyper-presidentialism suffers from precisely that anti-pluralistic failing identified by Kelsen in his exchange with Schmitt.

Given the apparent unpopularity of their reactionary policy preferences, it is rational for the Claremont Straussians to link them directly to idealised views of America’s founding ‘fathers’, now dressed in fancy ancient Athenian garments and conveniently repackaged in the language of classical natural right. Such illusions surely meet familiar psychological and political needs. The fact that none other than Donald Trump has been tasked with revitalising the wisdom of both the founding ‘fathers’ and natural right speaks volumes about this agenda’s bankruptcy. Even more fundamentally, this political vision is simply incongruent with the lively contestation and exchange between and among political equals that constitutes modern democracy’s sine qua non. It masks the many real and complex issues and challenges that US citizens face. Attempting to identify and then blindly support would-be presidential demigods hardly appears to be a useful way to address them.

Indeed, the appeal to traditional ideas about natural law at once demotes rational debate and shrouds political life in a mystical-religious veil. As Hans Kelsen feared, it degrades democratic politics and invites authoritarianism.