Religion & Liberty Online

Becoming a Constitutional People Once Again

(Image credit: National Archives)

The divisions and rancor that mark our politics is owing to the lack of restraint and unwillingness to be at the service of others. Before civic virtue can be rewarded, it has to be demanded. And where better to look for guidance than our Constitution.

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Yuval Levin opens his new book, American Covenant: How the Constitution Unified Our Nation—And Could Do So Again, with counsel against despair. He writes, “This is a book about America, and therefore, it is a hopeful book.” This country “should make you hopeful,” and Levin aims to secure that hope. This book is also a work of excavation, uncovering a Constitution that many have forgotten, one that has been encrusted with false beliefs and expectations of a frustrated, if not misinformed, people who have lost touch with its purpose and spirit. It’s worse than that, we can also say.

Levin observes that too many Americans think that our “multiplicity,” “different views,” and “different groups” means we are coming apart as a people. Accordingly, we now view each other “as problems to be solved,” yet our constitutional system refuses us great political victories over our opponents. We still, it seems, must deal with the other, and we’d rather not. Many conclude, Levin notes, that the fault lies with our Constitution, a document built for a much more unified society.

In simple and direct lines, Levin argues that the Constitution isn’t the problem; we’re the problem, both in our understanding of the document and in the misguided style of politics we engage in that poorly serves the means and ends of the Constitution. The Constitution “is more like the solution” because it assumes diversity and division will mark the ways of the Americans. A document forged over 200 years ago is premised on the free society that is America, a society that is animated, ambitious, and argumentative, with groups of all stripes vying for power. The Constitution’s understanding of how to form a type of unity and common good from immense political, cultural, social, and religious differences is sophisticated, exceptional even. It is we who have “forgotten that creating common ground is a key purpose of the Constitution,” one that should be “the key purpose of our own political and civic action.”

And how does the Constitution accomplish these grand aims of unity and common good, much less liberty? We are compelled by the Constitution to be in motion with one another, “to deal with one another—to compete, negotiate, and build coalitions in ways that drag us into common action even (indeed, especially) when we disagree.” Another thing we have forgotten, Levin says, is that unity in our constitutional design isn’t integral, it does not mean agreement where we all think and move in the same direction. What “unity means” is that we are capable of “acting together” within institutions as we find the arguments and settlements that will enable us to live together and thrive. Moreover, the properly unified society knows that disagreement is the inevitable product of its freedom and dynamism. Our obvious problem is that we disagree poorly because we refuse to have honest arguments with one another. Instead, we would rather look at each other as enemies who should be avoided or ignominiously defeated.

How then can the Constitution be a source of renewal for our politics, our nation, and “of that mutual deference and concession” that George Washington claimed had produced the Constitution when he presented it to the Confederation Congress? One problem is that we read it only one way. The Constitution is now read as a document mostly for lawyers and judges, as Levin rightly observes. We see it as the business of “personal rights and public policy.” In this, we “consider the Constitution a legal code that establishes what government in America can do to us and for us.” This isn’t wrong, Levin argues, but it’s woefully inadequate and a far too “narrow” reading of the Constitution, one that closes off a comprehensive understanding of how the Constitution can again lead us through our vituperative politics. In one sense, conservatives have contributed to this by reducing every constitutional question to judicial originalism. Levin also wants to correct this, not by saying it’s wrong, but that it’s insufficient.

Levin begins with a Platonic question: “What is the Constitution?” In answering this question, he adds to considerably to our legal reading of the document by arguing that it must include a series of complementary frameworks: a legal framework, a policymaking framework, an institutional framework, a political framework, and a unity and union framework. We know well the legal and policymaking frameworks. Conservatives have focused upon and found a measure of success in the legal while progressives have focused heavily on using it as a policy tool. We are much less familiar with the anchoring frameworks (institutional, political, and unity) that Levin establishes in this book as its real sources of strength. In short, our knowledge, practice, and connection to our “Charter of liberty,” as Abraham Lincoln referred to it, is impoverished and needs a substantial pedagogical refreshment that can then lead to better politics and the “more perfect union.”

The policymaking framework is similarly well known to us; after all, the framers jettisoned the Articles of Confederation because it was not a reliable inducement to constructing and implementing good policies. But the policymaking dimension can quickly come in conflict with the legal framework, a crucial point recognized by the framers. And that leads to the recognition of the institutional framework, Levin notes, which means that the Constitution never empowers majorities to simply implement a programmatic agenda after winning an election. The tension between the legal and the policymaking frameworks point to the fact that these dimensions do not exhaust the meaning of the Constitution, which looks for resolution by prioritizing “restraints” that slow down politics with “structured decision-making and broad accommodations.” And in doing so give us outcomes that may not be the most technically elegant but that accomplish something so much grander—a solution that melds peace by ensuring that individuals and communities can see themselves, their goals, and desires, in some fashion, in the policy result.

The structure of the Constitution, “its formalized bodies,” pursue their own “distinctive” work as powers that are both separated, interlocking, competitive, and called to negotiate and settle with one another. Levin finds the work that Congress, the president, and the courts do as specific to each branch, each has a form and purpose that are its own and should not be taken over by other branches. When a president says “if Congress won’t act, then I will,” he besmirches this institutional framework of the Constitution. Each branch must therefore ensure that its core functions are not exercised by others, but more important and perhaps the key to its defense of itself, it must do the constitutional work assigned to it exceedingly well.

An administrative state that acts legislatively is able to do so without the significant restrictions and structure the Constitution has erected to guide policymaking. But this reality is made possible by a Congress that consistently underreaches in its own assigned constitutional form and work, Levin states. In this manner, both branches violate not only the spirit and the institutional separations of the Constitution, but they inevitably raise the temper of our politics, as Americans find themselves governed by unaccountable minority factions inside the government. As Walter Berns put it, the institutional framework consists “of doing properly what has to be done politically.”

How should we be constitutional? This is the question animating the political framework that Levin invokes as the “most capacious if also the most nebulous of the modes of constitutionalism.” This framework goes to the inner sense, the essence of who Americans are politically and what they can demand of each other in public responsibilities. Levin refers to Alexander Hamilton’s notion in Federalist No. 83 to describe the political frame as one conducive to an overall spirit of government: “The truth is that the general genius of a government is all that can be substantially relied upon for permanent effects.”

The genius can be found in the Declaration of Independence “as a starting point for its essential republicanism.” The goals in the Preamble establish what the enumerated powers are meant to achieve. Another element includes the democratic nature of the Constitution through majority rights and regular elections. The protection of minority rights and freedoms through the structure of institutions and their powers is a balance to majority governance. Our genius is also observed in a politics under the Constitution “in which no one is in charge and, therefore, in some sense, everyone is in charge.”

Republicanism is the last element, and Levin believes it is something essential to the spirit of our laws but the one we fail to regularly contemplate. “At its heart is an idea of the human being and citizen” rooted in Jewish-Christian anthropology that ties directly to our “responsibilities to one another and to the common good.” It looks not to rights but to obligations. Perhaps, Levin hints, it isn’t that our society has become too liberal, but that we are no longer republican, cognizant of what we owe one another, an awareness of what is good for all of us. This standard is admittedly vaguer than originalism, small government, and the rule of law that we conservatives frequently recur to, but for that reason we should relearn it, and discuss what republicanism is and what it concretely requires us to do.

The unity framework points to “the very notion of a constitution … a whole constituted by different parts.” It is evident in the Constitution’s aim “to form a more perfect union” and in the first-person plural “We” that begins the document. Levin recounts Madison’s reply to Charles Pinckney in the Constitutional Convention that disagreement and division would run deep in America owing not only to differing geographic identities but also to economics and culture, and that these challenges would likely persist and turn into new divisions. It wasn’t a problem that could be solved, only managed, through common institutional action that builds on republican citizenship best articulated by Publius, George Washington, and Abraham Lincoln.

Levin describes how the first assumption of progressivism gets this backward. The framers assumed disunity and then thought that properly constructing republican institutions would lead to a limited unity through compromise and agreements that would actually elevate our politics and our patriotism. Progressivism as voiced by its founder Woodrow Wilson assumes a natural, national unity, comprehensive in scope, whereby we think and pull in the same direction. However, this integral unity is prevented everywhere through myriad divisions that result from business, private interests, religion, federalism, localism, among other sources. These false agents of disunity need to be quashed by an energetic national state reimposing unity over and against these interests that have flourished in the absence of such power.

In pursuit of this fictitious unity, progressives constantly direct power to the central government, and specifically to the executive branch, falsely wanting its unity and efficacy of command to become the arbiter of national power on behalf of the social question. In this, progressivism denies the original spirit of federalism and the deliberative and competitive mode of government in Congress and in the separation of powers generally. There is the need for one mode of government to enact the constant reforms of society that progressivism hearkens to in its elusive and rapacious egalitarianism.

There has emerged on the right a spirit similar to progressive integralism. Its advocates now wish to ape the left’s deformed constitutionalism in their right-wing progressive pursuit of an alternative unity that they believe is surely present if only the national government would impose it by first ruling out the false liberalism and false conservatism that has reigned in our government and society. Of course, their pursuit of such goals will only lead us further away from the Constitution and the order it can provide.

Levin uncovers that progressive politics thoroughly infuses our system on both the left and the right. Both seek mandates for action, for the imposition of their ideas rather than the bargaining and negotiation that the system is designed for. Frustration and charges of weakness always erupt as those who win narrow majorities—and it’s almost always narrow—fail to enact most of their agenda, cramming down one or two spending or tax-cutting measures through budgetary loopholes that negate the filibuster. Congress underperforms because its work, when done well, involves cross-party negotiation and compromise. The filibuster itself is designed to foster this very end. And yet, such bargaining and accommodations are now almost verboten on every issue of substance. The committee system in Congress now lacks real strength, including the opportunity for members to participate in the legislative process through expertise developed through real responsibility and deliberation. Leaders hold most of the power in a top-down manner, utilized in almost purely partisan efforts.

The system itself is now constantly sucked into the executive vortex and the mini legislature that is the administrative state for the wielding of power. Levin discusses various salutary measures for the reform of Congress, but he notes correctly that members will have to want to reform it on behalf of republican government with a belief in the genuine truth and goodness of the work they were elected to do. The problem of Congress’s weakness, if not dysfunctionality, touches the fraying fabric of our constitutional practice and the vices unleashed by the degradation of civic virtue.

That virtue consists of restraint, self-command, humility, accountability, the ability to deliberate, and be at the service of others. This public character is no longer rewarded; indeed, it is frequently held up to ridicule and mockery. And here lies the core difficulty of our constitutional life, according to Levin, which depends on civic virtue, to say nothing of the cardinal virtues, but must call upon pre-political and pre-liberal institutions for the inculcation of those virtues. And that crucial formation is breaking down. Levin’s book provides an opportunity to again understand the deep truth and spirit of our Constitution, but truth is received according to the mode of the knower, and the knower is us. But as Levin said on the opening pages, we should proceed on a pedagogy and politics of hope. And this book is an exercise of hope.

Richard M. Reinsch II

Richard M. Reinsch II is editor in chief and director of publications for the American Institute for Economic Research, and a senior writer at Law & Liberty. He is coauthor, with Peter Augustine Lawler, of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty.