Mitch Boersma:
Ladies and gentlemen, thank you so much for joining us here tonight. My name is Mitch Boersma. I’m the director of operations here at the CIC and I have the distinct pleasure of welcoming all of you here tonight and then exiting promptly. Say less, we’ll go over to Joel to run the show here. This is our second event that we’ve done here at the CIC in partnership with the Center for the Constitution and the Catholic Intellectual Tradition at CUA. And just the next, in a series of dozens of events over the years that we’ve done here in partnership with CUA more broadly. In fact, in a couple of days we’re going to do another one here. Welcome to Andrew Abela from the Busch School of Business at CUA to launch his book, but it’s really a special joy for me personally to have this opportunity here at the CIC to host this event and Yuval in particular to discuss this new book.
As it so happens, my first gig in town here 15 years ago was across the street where the EPPC used to be and it was as an intern for The New Atlantis Journal on Technology and Society and why a business major from a Catholic arts college was an intern at that place. I have no idea, but I’m very thankful to Yuval and to Adam Keiper who were running the show there at the time for taking a chance on me. I have two distinct memories from that summer. One were these wonderful lunches that Yuval and Adam would host for the interns to introduce them to the world of ideas, to introduce them to all the great fellows there, and when we didn’t have those lunches, I would come down across the street here at the CIC, which is where I first met Father Arnie and met Kevin who’s still here at the bookstore, wondering how he got such a sweet gig here in the center of town.
So it really is a full circle moment for me and a great opportunity here to return the favor for you all. Now I’m going to hand things over to Joel, but not without first a quick introduction. Professor Alicea is an associate professor of law at the Catholic University’s Columbus School of Law and the director of the Law School Center for the Constitution and the Catholic Intellectual Tradition. Prior to joining the Catholic Law faculty, professor Alicea practiced law for several years at the law firm of Cooper & Kirk where he specialized in Constitutional litigation. He previously served as a law clerk for Justice Alito on the Supreme Court and Judge O’Scannlain on the United States Ninth Circuit. Professor Alicea’s Scholarship focuses on Constitutional theory with scholarship appearing in Yale Law Journal, the University of Pennsylvania Law Review, the Virginia Law Review, and the Notre Dame Law Review.
He’s also been active in public debates about Constitutional law, publishing essays and journals such as City Journal and National Affairs among others. Professor Alicea is a graduate of the Harvard Law School in Princeton University. He’s a fellow at the Catholic Law School for Religious Liberty and a non-resident fellow at the American Enterprise Institute. And I would be remiss if I didn’t add his most stern accolade around these parts in that he is a proud Leonine Forum fellow here that started at the CIC as well. Joel, the floor is yours.
J. Joel Alicea:
Thank you, Mitch. That is indeed a highlight of the bio, Leonine. Thanks to the Catholic Information Center for hosting this event for co-sponsoring with the Center for the Constitution and Catholic Intellectual Tradition or CIT. As Mitch said, I’m a law professor at Catholic University. I’m also the director of CIT. Because we’re the co-sponsor, let me just say a little bit about the Center for the Constitution and the Catholic Intellectual Tradition. Before we keep going, CIT explores the relationship between the Catholic Intellectual Tradition and American Constitutionalism. We do that through events like this one public events but also through fellowship programs, events on campus and courses that we sponsor at CUA. You can learn more about us at cit.catholic.edu and we’re always delighted to co-sponsor with CIC, hopefully the second of many such co-sponsorships. We’re privileged to have an outstanding panel today to discuss Dr. Levin’s new book.
I’m going to introduce them and then turn it over to Dr. Levin to give us an overview of his book. I’ll then turn it over to Professor Goldsmith and Professor Kelley to give their remarks. I’ll moderate a discussion with them and then open it up to you all for questions from the audience. So let me just quickly introduce all three of them and turn it over to them for their remarks. So Yuval Levin as the Director of Social, Cultural and Constitutional Studies at the American Enterprise Institute where he also holds the Beth and Ravenel Curry chair in public law, public policy, rather. The founder and editor of National Affairs, he’s also a senior editor at The New Atlantis, a contributing editor at National Review and the contributing opinion writer at the New York Times. Dr. Levin served as a member of the White House domestic policy staff under George W. Bush.
He was also executive director of the President’s Council on Bioethics and a congressional staffer at the Member Committee and Leadership levels. He’s the author of several books on political theory and public policy, most recently American Covenant, the subject of our event today, but also the Fractured Republic and A Time to Build. These are terrific books. He earned his doctorate from the Committee on Social Thought at the University of Chicago, his undergraduate degree from American University. Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General at the Office of Legal Counsel from October 2003 through July 2004 and special counsel to the General Counsel to the Department of Defense from September 2002 through June 2003.
He previously taught at the University of Chicago and at the University of Virginia. He clerked for Justice Anthony Kennedy on the Supreme Court and Judge J. Harvie Wilkinson on the Fourth Circuit and for Judge George Aldrich on the Iran-US Claims Tribunal, he’s the author most recently of After Trump: Reconstructing the Presidency as well as many other books and articles on topics such as national security, terrorism, presidential power, international law, internet law. He earned his law degree from Yale Law School, his BA and MA from Oxford, his undergraduate degree from Washington and Lee.
And finally, William Kelley, Bill Kelley is an associate professor of law at Notre Dame Law School where he previously served as Associate Dean of Faculty Research. He previously served also in the White House as deputy counsel to the president. He joined the Notre Dame faculty in ’95 after practicing with two major law firms and serving from ’91 to ’94 as assistant to Solicitor General at the US Department of Justice. He clerked for Chief Justice Warren Burger and Justice Antonin Scalia on the US Supreme Court and for Judge Kenneth Starr on the D.C. circuit. He has published numerous articles on Constitutional law, earned his law degree from Harvard Law School and his undergraduate degree from Marquette. Please join me in welcoming our panelists.
Yuval Levin:
Shall I speak at the podium?
J. Joel Alicea:
As you wish.
Yuval Levin:
Thank you very much, Joel. I really appreciate both the introduction and more generally, this extraordinarily humbling event. I’m grateful to the Center for the Constitution and Catholic Intellectual Tradition. I am neither a Catholic nor a lawyer so I’m especially privileged to be invited to be here and grateful also to the Catholic Information Center, which has always been very generous to me in various ways. I’m immensely grateful to Jack Goldsmith and to Bill Kelley for the honor you do me by being here. These are giants, they’re heroes of mine. I can’t tell you how much it means to me. Even if you trash the book, just for taking note of it, I’m enormously grateful to you and thanks to all of you for being here. My task is to very briefly lay out what the book is up to. Joel asked me to speak for 15 minutes and so I’m going to try to be brief and quick.
This book is really meant to be a kind of reintroduction to the Constitution that emphasizes especially its potential to unify our society to hold it together. We’re living in a time of Constitutional failure and malpractice in a lot of ways. We’re also living in a time of division and disunity and most of the time when people look at those two facts, they end up accusing the Constitution of dividing us and I tend to think that just the opposite is the case that we’re divided in part because we are failing to adhere to the forms and practices of American Constitutionalism. And so in this divided era, the Constitution is much more like a solution than a problem. To see that requires us to think fresh about both our disunity and our Constitution and that’s really what the book tries to do. It starts with a chapter that’s just called What is the Constitution? It ends with a chapter that’s called What is Unity?
And the ambition of the book is to use each of those in a sense to clarify the other some. It is in this sense not a lawyerly book. As I say, I’m not a lawyer, I’m a recovering political scientist and I approached the Constitution through on the one hand a kind of institutional lens, which has been the lens I’ve used for much of my work over the past decade and more and through a political lens in the highest sense of that idea. The Constitution certainly is law first and foremost, but it is more than that and that’s really worth seeing, particularly in our time.
Among its other functions, the Constitution is really meant to facilitate some cohesion in a diverse society. The book lays out what I mean by that, by first helping you see what the Constitution is, what its characteristic modes of operations look like, how it shapes the public, and then by working through the purpose and history of its various institutions thinking about federalism, about Congress, about the presidency, the courts also the kind of extra-Constitutional institution of the party system.
It thinks about all of those in light of the Constitution’s prioritizing of national cohesion and unity and finally as I say in a final chapter, thinks about what unity might mean in light of that. I’m not going to march you through all of that here, but let me offer a few quick propositions that I think emerge from looking at the Constitution in this light. Propositions that are some of the pillars of the argument of the book and all of which I think are now in a sense contested, at least unfamiliar. The first proposition is really about the nature of unity itself in a society like ours. I think the Constitution is rooted in a premise that I take to be a Madisonian premise, but also in some respects a classical premise that in a free and therefore diverse society, unity does not mean thinking alike, unity means acting together.
Americans do have some core commitments in common and a common history that holds us together. Those are vital and we can certainly talk about those, but our politics is unavoidably about what divides us and political unity doesn’t mean ending those divisions but acting together to address common problems despite them and through them. And that distinct notion of unity I think is really essential to understanding our Constitution, because it’s an idea that invites the question to which the Constitution often presents itself as an answer. I say that unity means acting together, not thinking alike, and that forces us to ask how really is that possible? How can we act together when we don’t think alike? And I think that is the question to which the Constitution is often and in many respects, an answer. A lot of its modes of actions, the institutions that it creates are intended to answer that question.
A lot of what’s mysterious and frustrating to a lot of Americans now about the Constitution is a function of its being an answer to that question, of it’s being designed to enable people who don’t fully agree to nonetheless act together. How does it do that again and again in its various institutional forms and especially in those that we now find most frustrating and mysterious? The Constitution offers ways of compelling competition and negotiation among divergent factions and driving them towards some kind of common action. That’s not just a matter of counting heads. I think that some contemporary critics of the Constitution insist that these kinds of division could just be resolved by simple majority votes, by simple democracy and so dismiss our system’s complicated arrangements and overlapping institutions as undemocratic, but the Constitution is more sensitive than they are to the dangers of social division.
It accepts the premise that only majority rule can legitimate public action, but it also embodies the countervailing inside which is also true and which is unavoidable to anybody familiar with the history of democracy or of the United States that majorities can sometimes act depressively too and it recognizes that narrow majorities in particular are often just ephemeral artifacts of the election systems that created them and so it demands that popular consensus be demonstrated by multiple durable, reasonably broad majorities that present themselves in institutions that are elected by different constituencies in different ways.
That points to the second proposition that I’d put to you, which is simply that in our system, meaningful policy victory requires broad coalitions, not narrow majorities. You would think that would be obvious, but if you watch our politics now, you would see that it’s really not obvious at all. Almost everybody in our politics now seems to have forgotten it. Building coalitions through negotiation and competition is now taken to be a kind of betrayal, a failure of nerve. Politicians promise to fight for their voters as they should, but too many of them have forgotten that what it means to fight in our system is to bargain effectively and gain advantage by building a broad coalition that can advance your priorities. A lot of politicians now behave as though fighting means refusing to negotiate, but in reality that is what losing looks like. Refusing to negotiate means giving up the only power you have because what you win when you win an election in the American system is a seat at the negotiating table.
The fact that we’ve forgotten that is a big part of why our practice of Constitutionalism is now so out of whack and why our politics can feel so broken and divided. That problem is particularly evident in Congress which is first and foremost the institution of our system. It’s the first and foremost institution of our system precisely because it is the primary venue for bargaining and accommodation at the federal level. Congress is where the fundamental work of acting together when we don’t think alike is supposed to happen and that’s why it’s particularly disturbing to find in Congress the attitude that negotiating with the other side is a betrayal or a failure. That attitude is really seeped into a lot of how we think about how Congress works, even how we think about fixing Congress. There’s a lot of agreement now that something is wrong with Congress.
There’s even a kind of bipartisan community of congressional reformers in Washington. I get to be the token conservative in a lot of these conversations and I will tell you that although they seem to be unified around the sense that Congress needs fixing, they’re actually profoundly divided around the question of just what it is that Congress is failing to do. Most people’s answer would be it’s not passing legislation that I think is essential and so it’s not acting on entitlement reform or immigration or climate or whatever you take to be the crucial challenge of our time. That is the common view, but I think that it’s mistaken ultimately. It seems to me that what Congress is failing to do is not so much to advance my policy agenda, but to enable cross-partisan bargaining and accommodations. Now that failure is also why it’s not passing big legislation, but the underlying failure is the failure to facilitate cross-partisan bargaining because that is ultimately the purpose of the institution.
What Congress is failing to do is precisely to enable us to act together even when we don’t think alike. And that difference over diagnosis has some enormous implications for prescribing remedies for Congress. If you’re frustrated with the failure to pass major legislation, then you want Congress to be more efficient. You want legislation to move more quickly, you want to get rid of the filibuster maybe to centralize power and leadership. But if you think that ultimately what’s necessary is for Congress to facilitate cross-partisan bargaining and accommodation, then you actually want to decentralize power some. You want to empower the committees, you want to protect the filibuster, which is really the only reason we’ve had any bipartisan legislation in the past decade or so. And that points me to the third proposition that I’d suggest to you, which is that reforms of Congress should make cross-partisan bargaining more likely rather than less necessary.
That kind of approach to the problems with our institutions of government, asking what’s the purpose of the institution and then thinking about how it’s failing by thinking about how it’s failing to achieve that purpose can also inform how we think about the American presidency, because I think we’re almost as confused about the presidency as about Congress in this moment. Like our sense of Congress’s purpose, our understanding of the executive is dominated by a kind of progressive prioritization of policy action over the Madisonian prioritization of political order, social cohesion. In fact, we think about the presidency now in very legislative terms. We think that it’s a representative institution and that its purpose is to advance the policy agenda of the party that won the last election, but the presidency is a unitary office. It can’t be representative of a diverse society and it’s an administrative office.
Certainly the president is intended to have a role in driving the agenda of our politics some and putting key questions on the table and setting priorities, but the kind of bargaining and accommodation through which policy is supposed to be made really can’t happen within the office of the president, within the person of the president, and that means that the president can’t really advance cohesion or unity through assertive policy action. The distinct role that he has in advancing national cohesion along with the other roles he has in our system, his role in advancing unity has to do not so much with energetic policy advocacy, but with what Alexander Hamilton called steady administration. Contemporary presidents because they value their ability to drive policy action, essentially do the work of the legislature when legislators won’t. They’ve dramatically under-emphasized steady administration. When every president spends half of his time undoing his predecessor’s administrative actions and then the other half taking actions that his successor is going to undo, we lose the steadiness that’s essential to a free society.
And the effect of that has not just been bad for administration, though it has been, but also for national cohesion. It dramatically raises the stakes of our elections and the temperature of our politics because it means that key questions don’t get resolved by bargaining and accommodation and coalition building, but by sharp turns and hard stops. Everything depends on who the president is. And so the fourth proposition I’d put to you, the fourth implication of looking at the Constitution through the lens of national unity is that in thinking about the executive, we have to prioritize steady administration more than assertive policymaking. Finally, when it comes to the third branch, the courts, I don’t think an agenda of reform is exactly the way to think about what’s needed. The courts obviously have a crucial part to play in advancing unity and cohesion too, but it may not be quite the part that we imagine it’s not really rooted in their ability to resolve disputes.
Courts do resolve disputes obviously, but they’re intended to resolve disputes over what the law is rather than what it should be, and so they’re not the right venue for mediating among competing visions of the public good. Our great public disputes have to be resolved through the work of the legislature above all, and the most valuable kind of service that the courts can provide to the cause of national unity is in policing the rules and boundaries of Constitutionalism. They’re restricting of the power of majorities and of public officials to pursue end runs around the structure of the system. The courts actually have been improving on this front.
Unlike the elected branches, I think they’re closer to serving their proper Constitutional purpose today than they were a generation ago. They do I think need more of a focus on Constitutional structure rather than on policing personal rights, but the transformation of the courts in this century has really been extraordinary so that when it comes to the courts, the fifth and final proposition that I’d put to you is a function of that transformation and it is that the lesson of conservative success in the courts is that we should fight for the Constitution and not against it.
Conservatives and Constitutionalists had every reason to give up on the judiciary and the second half of the 20th century, but rather than give up on it, they set about renewing its commitment to its proper purpose through a project that started as intellectual work and that evolved into institutional work supported by political action that enabled a genuine transformation of the judiciary. It was really a labor of love, love of the Constitution, love of the country, and that is exactly how we should think about the Constitutional challenges that we face now. I think that we are with regard to Congress in particular, which is the most troubled of our institutions, roughly where the right was regarding the courts in the middle of the 1970s. We have a lot of work to do, but it’s a certain kind of work. The idea that we could reform Congress to do this job again, certainly seems hopelessly naive in this moment, but it’s not more naive than the notion that Antonin Scalia and Robert Bork and others had that we could have originalist judges dominating the judiciary 50 years ago.
Strategic naivete is actually crucial to any successful reform effort. You have to be a little naive about what you love most. You’re not a cold-eyed realist about your spouse and your friends or the New York Jets. I hope you’re not. You should be just a little naive about our country too and about its prospects, not so naive as to be optimistic, but just naive enough to be hopeful. And so to fight for the Constitution and not against it, writing a book like this is for me, a way of forcing myself into that position of strategic naivete. Most of the questions that I get about this book amount to basically, wouldn’t despair be a much more realistic outlook right now? You’re going to ask me questions like that. There’s certainly days when I think that way myself, but ultimately I think no, that is not true. It’s not justified.
Despair is not the most realistic way to approach America’s future or our Constitution. There are a lot of people now, including some people on the right who are ready to give up on the Constitution or to dismiss it as inadequate to a society that’s as divided as ours. And I think they’re exactly wrong. The Constitution was intended precisely to address the kinds of problems we face now. It is up to this moment. The question is whether we are up to this moment and I hope so. This book in the end is an expression of that hope and it’s an expression of gratitude. So thank you.
Jack Goldsmith:
Thank you, Joel, for inviting me. Thank you, Yuval, for such a great book. It’s an honor to be here. American Covenant is one of the best books and maybe the best book on American Constitutionalism I’ve ever read. And I know that sounds like puffery, but it isn’t. The book possesses an unusually rich understanding of what the US Constitution is. Hint, it’s not just a legal document. One of the virtues of the book is that Yuval is not a lawyer and he approaches the Constitution from a number of perspectives and he shows not just he doesn’t consider the Constitution just as a legal document, but also for how it shapes our politics, for how it shapes the citizenry and for how it can help bridge differences in the citizenry. And these are dimensions that lawyers who tend to dominate Constitutional discussions tend not to notice, and it’s one of the things that makes the book so great.
The book also displays a mastery of the founders and especially of Madison’s vision, a deep understanding of American politics and history and a conservative disposition that in my view is proper to the task. So I see this book as a kind of capstone to a trilogy of books that Yuval has written and that Joel alluded to. He’s written over the last decade about the fraying of political, cultural, and social bonds in contemporary America and the attendant decline of trust in American institutions in these earlier books, the Fractured Republic and A Time to Build, Yuval diagnosed and proposed solutions to these problems and one hears echoes of some of the earlier solutions in American Covenant, the book we’re talking about tonight. But the new book is different in kind and in my opinion, much more powerful in tying American renewal comprehensively to the rediscovery of the American Constitution as Yuval described.
And he didn’t quite say this, but I’ll say this book can be seen, I think should be seen as a strong response or counterpoint to the pervasive anti-Constitutionalism on the left as exemplified, but certainly did not begin with Dean Erwin Chemerinsky’s recent book and the title tells you everything you need to know, No Democracy Lasts forever, How the Constitution Threatens the United States. This is basically the opposite of the way that Yuval sees the Constitution and I think it’s a response to decades of progressive thinking along those lines or it can be seen that way. I want to focus my remarks primarily on one theme that is crucial to Yuval’s argument, the centrality of Republicanism and Republican virtue to the framers’ understanding of American Constitutionalism and to Yuval’s vision of Constitutional revival. Now by Republican virtue, Yuval does not mean the virtues associated with the Republican Party. As he explains, Republicanism is and these are his words, “An idea of the human being and citizen that emphasizes our responsibilities to one another and to the common good.”
“It is built upon the notions, and here again I’m quoting from Yuval, “That we are each fallen and imperfect, yet made in a divine image and possessed of equal dignity that individuals are social creatures meant to live together, that living together requires a commitment to pursue the common good and that this pursuit in a free and therefore diverse society requires of the citizen selflessness, accommodation, restraint, deliberation, and service.” Now, please remember that statement, that the pursuit of the common good in a diverse society requires of the citizen selflessness, accommodation, restraint, deliberation, and service. Yuval argues that the Republican ideal is an assumption of the American Constitution. The framers believed that this ideal was necessary to make the Constitution work and for him it’s the starting point of any Constitutional restoration. I think it’s fair to say he might disagree, but that if we can’t recapture to some degree this Republican ideal among our political leaders and our citizenry, then the Constitutional solutions won’t work.
And so many of his reforms in the book are grounded in a conception of Republican virtue a lot of the reforms he discussed or alluded to or they aim to promote Republican virtue. And Yuval also says that understanding and practicing Constitutionalism can inculcate Republican virtue and showing how this is so is basically in my view what the book is about. The problem, to go back to that statement is this, “Republican virtue requires of leaders and citizens selflessness, accommodation restraint, deliberation, and service.” I’m one of these people who is going to sound pessimistic. These are not qualities in abundance in our political class. Indeed, modern American politics is characterized by the absence of these qualities. These qualities are in my view in much more abundance in the citizenry and certainly much more in abundance than one might think if you hang out on Twitter where it’s not on display typically. But I think it’s fair to say that the citizenry too has been tending in recent decades towards greater selfishness, towards non-accommodation, away from restraint, and towards non-deliberation outside of one’s tribe.
Now the reasons for these trends are familiar in part because of Yuval’s three books and what he’s taught in these books. The reason for that our political leaders and our citizenry has have tended in these directions, I’ll list them briefly. I think these will be familiar reasons, technological change, especially in the media which fosters bubbled experiences and worldviews, the rise and rise and rise of individualism and consumerism and materialism and personal autonomy as the drivers of modern society, themselves the result of exogenous technological and economic changes. The sharper decline in the robustness of mediating institutions such as the degradation of the family and family values, the decline of religious belief and organization and the decline of other communities and mediating institutions also as are part of some of those trends I mentioned a while ago. The also related decline in trust in governmental institutions, which as Yuval has argued, these institutions are stopped seeking to shape behavior and character as they are designed to do and have become performative in the sense of being platforms for individual expression or advancement at the expense of the public interest.
This was a point he made in an earlier book, which is I think very insightful. And finally a decline in a shared purpose among the American citizenry as a result of all these trends. The hard question for Yuval’s project is how to re-inculcate Republican virtue when the institutions that are meant to exemplify and inculcate such virtue are also corrupted, when we live in a society that doesn’t even understand what Republicanism is or why it’s important, and when there are many independent economic and social and technological forces that make Republican virtue hard to achieve? Now, Yuval is clear-eyed about this difficulty. This is not going to be news to him, because he addresses it in the book and indeed in some sense the book is an answer to this problem. He has a program of reforms, as I said, including attending the Constitutional values that are designed to reintroduce Republican virtue and he aims to reverse this vicious cycle of Constitutional decline with a virtuous cycle where we can improve our institutions and improve citizens’ virtue and try to get the cycle going in the other direction.
But from where I sit, it’s hard to see how the project gets going. It’s hard to see how we get the institutional changes he proposes without a reversal of the decline of Republican virtue and it’s hard to see how we get a reversal in the decline of Republican virtue without dramatic institutional change. And this is in a nutshell, while we’ve had a vicious downward cycle of political fragmentation, norm collapse and institutional distrust, these factors are all pushing in the same direction. Again, Yuval realizes this and he addresses it in his book. In some parts of the book as I read it, he says that we need to start with changing values in other parts of the book as I read it, he says, and I’m quoting here, “The institutions are much more readily changeable than the culture, and so it makes sense to begin to approach deep cultural problems by considering what institutional reforms might be of use and work from there. The structure of the Constitution and the insights of its framers have a lot of wisdom to offer us on that front,” He says.
And I agree, and some of the greatest parts of the book are how he calls the wisdom of the framers and applies them to contemporary problems. But I’m just not confident about how far the downward cycle, how much further it has to go until we hit bottom and I’m not sure how we turn it around. Putting it another way, American Covenant’s prescriptions to break free of the vicious cycle seem more hopeful than realistic. Now, Yuval actually addressed this at the end of his remarks and he’s not going to quibble with this judgment because the first sentence of the book, my claim was that the claims of the book seem more hopeful than realistic. The first sentence of the book says this, this is a book about America and therefore it’s a hopeful book.
“Hope”, Yuval says, “Tells us that things could go well and invites us to take action that might help make that happen and that might make us worthy of it happening. Hope does not deny the obvious potential for calamity that always casts the shadow over our future, but it holds out the possibility of light and grace.” That is beautifully and well said, and it’s exactly what the American Covenant accomplishes. It tells us that things could go well and it invites us to take action that might help us make that happen. The unanswered question is whether we as a people are capable of taking these actions in the face of the enormous forces running in the other direction. Thank you.
William Kelley:
Well, good evening. Thank you. It’s a great pleasure and honor to be here. I don’t get out much in the snowy Midwest, although it’s been sunny about 60 out of the last 65 days in South Bend Indiana, which means that maybe there is hope after all, but I could not pass up the opportunity to be here, because I have such respect for in regard for Joel and Yuval and Jack, my old friend, it is really a great honor to be here. I’m going to focus on two aspects of Yuval’s great book and incredible achievement and unpack them just a little bit. One is what our devolution and our political culture has wrought over the last generation or two in the federal government really has transformed it, as the book acknowledges, into a quasi if not genuinely parliamentary system, and that has had I think deleterious effects on our national politics and our common life.
And the reason why I think that is that the work of the federal government by the Constitutional design was not designed to be a team sport across branches, across the departments. Indeed, it was designed in just the opposite way. The great insight of course of the framers at the national level was that the power had to be real, it had to be effective, the federal government, the national government had to be able to govern for real because of the failures under the Articles of Confederation and the difficulties in an impotent in national government. But of course, they were also greatly suspicious of power, and so we have our separation of powers and especially our checks and balances.
The first three articles of the Constitution, they vest powers exclusively in each department, the legislative department, the president, and the judicial department, but then of course it blends those powers in significant ways in particularly between Article I and Article II. And so the President of the United States cannot legislate, but Congress can’t legislate either without the president’s agreement or without a consensus of both houses of Congress. This is Civics 101. Of course now for much of my life into adulthood, it really wasn’t the case that partisanship was that important at the national level because it was just ordained in the natural law that the Democrats controlled Congress.
And then there was the shocker, of course of the 1994 election preceded by 1980 when Republicans took control of the Senate in a surprise, but only for six years. But as of 1994, for the first time, the Republicans had a majority in the House of Representatives and what happened? President Clinton and the Republicans compromised, it actually worked. There were great legislative achievements in the second term of President Clinton because both sides recognized the need to compromise and maybe especially the president recognized the need to compromise. But what has happened since has been that our national politics has flip-flopped over and over again in control of both houses of Congress, very narrow majorities in succession from one another, almost always the product of electoral reactions to over doing it on the part usually of the executive. And so our national politics is characterized of course now by very close elections and very narrow majorities in both houses of Congress repeatedly.
That has been a product, that has produced, excuse me, that has produced a situation in which the locus of action at the national level has shifted from legislation to the executive to law execution. Now of course, we’ve long had a very big and robust administrative state for say since the late 19th century in the progressive era, and then of course with gusto during the New Deal, the administrative state has a great history and lots and lots and lots of power, but things changed and they’ve changed in the last generation, because rather than a conception of the agency as being the regulator at Congress’s command, it has become the regulator at the president’s instigation in conjunction with his transient majority in Congress.
Over and over again, the failure or inability to pass big legislation has resulted in big regulation, over and over again. And the institutional lines between President and Congress have all but disappeared in the struggle for power, except insofar as it has become a partisan struggle. It is now a team sport. It has become a team sport. It didn’t use to be this way. Jack and I have both had experience, actually all three of us have had significant experience in the executive branch. Both Yuval and I worked in a White House, and this is 20 years ago, a little less. The institutional role of Congress in those days, and this was extremely important within the White House. Two quick examples.
During the Bush administration, of course, judicial confirmations became a very big deal and the Democrats in Congress began the practice of repetitive partisan filibusters of judicial nominees, lower court nominees. That was unprecedented. It was an escalation and it was entirely corrosive of our judicial confirmation process in my view. Now, from my own perspective, the outcomes we see today are better because of the events that followed that because there is less need to compromise on judicial nominees. So take me to be a hypocrite, because I am happy about that in terms of outcome, but I do regret greatly the process that we’ve lost. When the Republicans in the Senate were considering abolishing the filibuster in the second Bush administration, it was a real possibility and what happened, we had a bipartisan compromise, the so-called Gang of 14 deal that cut off the partisan filibuster of judicial nominees pretty much across the board with a few exceptions, the Republicans agreed to cede on some nominees and others got confirmed.
What was President Bush’s position in that situation? The answer is you don’t know. None of us knows, because we were told in the White House in no uncertain terms that this was none of the executives’ business. Butt out. If the Republicans in the Senate heard anything from the White House encouraging the abolition of the filibuster, that would be viewed as a war-making act, intra-party war-making and it was so serious that we were told, and I was in the council’s office at the time, so this really mattered. We were told if there’s a leak, there’s going to be hell to pay. So not a word. It’s because the Senate had an institutional interest in how it ran its own affairs. That is no longer the case. President Obama, President Trump, President Biden, they have no problem them saying what they think about how the Senate ought to run itself.
There’s a real difference and much more importantly, the members of the president’s party, particularly I have to say in this context, the Democratic Party don’t have any problem with the president’s doing so and indeed they look to the President for that leadership because it has become ipso facto the role of the Prime Minister. Party line votes, totally normal. Whatever the president wants, totally normal. The impulse or the need for compromise even within the party has been all but destroyed. Consider the legislative experience of the Biden administration and what happened when Senators Sinema and Manchin were not willing to go along with the robust legislative program of the president. One was driven out of the party, the other was all but driven out of the party because there was a party position and heresy from that was not acceptable. That is a very different thing from how it used to be.
It used to be, of course, that legislation required compromise even among party members in a significant way. That is gone. Now, it is genuinely a team sport. The Constitution is entirely contrary to this, of course. There are multiple ways in the text and structure of the Constitution that require of course the president to be separate from Congress to compete with Congress, and what happens when the president is separate from and competes with Congress? They compromise. We have a history of that. Our practice in recent years has departed from that with some drama I would say.
Now, what has been the result of that? The result of that has been very, very significant administrative action that could not be passed through legislation. Now of course, the Affordable Care Act was a major piece of legislation that turned out to be parliamentary in its passage. That is to say it was one party and there was no room for differences among Democrats. You’ll recall at the end of the passage, the process for passing the Affordable Care Act, some Democrats in the House of Representatives balked at some provisions and they were given false assurances or empty assurances about how the administration of the law would work so that their votes would come along.
Apart from the Affordable Care Act, what major legislation have we had? We’ve had a tax cut bill in the Trump administration and there’s been stimulus bills galore in both the Trump and Biden administrations. One thing in fact, in which members of Congress seem to be in a spirit of compromise is to spend a lot of money. Now, what does this mean? It means that if you want immigration reform and you’re President Obama, you issue DACA and you try to issue the Deferred Action for Parents program as well after saying how many times publicly he didn’t have the power to do it, because it required legislation. What else? Student loan forgiveness. What else? Vaccine mandates. Over and over again, major, major action that is legislative in nature has come from the executive and here’s the difference from the old days. The difference is that this is part of the party’s program and the members of Congress prefer it to be done and are happy for it to be done via administrative action even if it is a stretch of the law to say the least.
Now, of course, members of Congress have always had a natural interest in avoiding accountability and legislating in general terms and having agencies implement laws in ways that they can claim surprise over, it’s an age-old practice. But there is a difference now I think in how regulation has worked and the lack of any institutional worry about it really in Congress on both sides of the aisle, but particularly on the democratic side of the aisle is something that the Constitution would be, the framers of the Constitution would find astonishing in my opinion.
Now, what about the role of the courts? The role of the courts, one of the things about the book that I really appreciate is the insight that Yuval had that of course the Constitution is law and the courts do law, and for me, a lawyer that is absolutely central to how I think about courts and the Constitution, but recognizing that the role of the Constitution is more than just as a legal code and the role of the courts can be helping in working to build the aspects of our Constitutional culture beyond just the nuts and bolts of how cases are going to be decided, I think is an important thing for lawyers especially to bear in mind.
Now, what has happened is that the courts in recent years have taken to being the check on the executive that Congress has not. Now the doctrines of judicial review of agency action are near and dear to my heart, but not really big in the public mind. The court has developed responses to these extravagant claims of administrative power via doctrinal innovations like the major questions doctrine, a term that lawyers will certainly recognize. Or the court last term decided to overrule the Chevron precedent and reassert its role in policing agency legal interpretations, and that’s all fine. Now, one can quibble and believe me, if you are in the legal academy, there’s a lot of quibbling over things like where the major questions doctrine comes from and its legitimacy, but it turns out by the way that the people who question the legitimacy of the major questions doctrine are all on board with parliamentary governance by the president through agencies as a fundamental policy matter.
The courts can’t do this alone though, of course, we need a change in culture. Now, Jack and Yuval have talked about congressional reforms and a change in culture at the national level. I would just want to focus briefly in the time I have left on the states. One feature of the book that Yuval deals with is our federal system and the importance of federalism in and the ways in which the framers viewed small republics versus large republics and the increased danger of tyranny of the majority in a smaller republic. Now, in our system, of course, our system of federalism and governance at the state level has been a mixed bag in reality over the course of our history, of course, federalism in the states, in the name of states. Governance, the states have sometimes done governance in ways that we find today not to be at all attractive and indeed abhorrent.
But the only hope I think we have if we do have hope, is for the citizenry to develop the Republican virtues that Jack and Yuval have so eloquently spoken about. At the national level, that’s not something that really grabs people because people don’t feel, I think the connection to the nuts and bolts of national governance that they might in their state and local governance. Yuval talks about the Catholic doctrine of subsidiarity by which of course things are best done by the unit of governance that is smallest and closest to those on whom it’s acting. It’s an oversimplification, but that’s good enough. Federalism isn’t that, it’s not that because of course the states are big, but it’s pointing in that direction and state and local government can point even more greatly in that direction. And if you look at state and local governance, our experience in that, we see I think more reason for hope because we tolerate differences across state lines in all sorts of ways.
Our experience with the pandemic shows that. Different states had very different approaches in how they dealt with the COVID pandemic and things worked out at the state and local level. That’s possible. That’s possible. What has to happen is that people have to understand the need not just to compromise, but to do the work of listening before compromise is possible. It is a spirit that at the state and local level and particularly the local level, that is much more feasible because the people with whom you’re compromising are real. They’re people whom you can know. They’re not just an avatar, a symbol. If, and it’s a big if, we can imbue in our citizenry, the spirit of localism and have it grow in a larger way in our national politics, maybe there is some hope. I personally am more on the pessimistic side that Jack finds himself on, but I have to remind myself that Twitter and the internet aren’t real life.
And here’s something I think that is important. How many of us know people, a lot of people who just say, can’t we just all be normal? Can’t we just be normal? And the roilment and the divisions of our politics, the big issues they recede when you’re with your neighbor in a way that they don’t recede when you’re reading a blog post. And so for the American people to thrive in their Constitutional governance as it’s supposed to work, it’s going to take all of us having a spirit of compromise instead of despair, which I can say here, I think is a mortal sin. Here’s an idea, we should intentionally, each of us, love our neighbors and let them know and tell them, because if you love your neighbor, that neighbor can’t really be your enemy in a way that our politics seems to make enemies of us all all too frequently. So thank you.
Speaker 2:
Well, thank you all. We have limited time for our discussion and for Q&A. So I might just ask one question and then open it up to questions from the audience. Yuval, I might just direct this to you and then open it up. Your book is an enormously ambitious book theoretically, in that it is trying to tackle this tension between having a society that is united in the midst of disagreement and how do you accomplish that? And that’s been an issue in political theory for a very long time. And you adopt an understanding of unity that assumes that kind of serious disagreement, but produces unity through joint action in politics is one of the last chapters of your book.
And that’s a conception of unity that doesn’t require agreement on what justice is or what the good is, at least not in any full way, only on fundamental issues like commitment to the Constitution. I wonder though, is that too thin? See, it’s a warning sign, right there.
Speaker 4:
It seems that it is.
Speaker 2:
Is that, excuse me, too thin a conception of unity for a society to actually endure over time? Do you need a thicker understanding of what we agree on for society to really endure?
Speaker 3:
So first of all, thank you really for these comments, which give me a lot to think about, which I’m very grateful for. I think that politics is always inevitably about disagreement. The idea that you could have a polity in which there is thick agreement about justice that leads to common action that isn’t rooted in disagreement, I don’t know what that is, but that’s not a human society. In any case, that society wouldn’t need politics. So I think the idea that politics is about finding ways to act together in conditions of disagreement is a classical idea. It is not a thinning out of the idea of politics or of the polity. And it’s true that in modern conditions which are especially and above all, conditions of moral diversity, that acting together amid difference becomes much more difficult and complicated, because the differences do become more profound and there’s a need to act together as citizens while putting aside fundamental differences, religious differences above all and others.
I do think that there is a need for some shared commitments for a society to be a society, and I think that American society has such shared commitments. In fact, I think the United States is more explicit about those than most modern societies. We’re a very unusual society in that we have in our Declaration of Independence, in our birth certificate, a kind of assertion about morality and human dignity and the nature of the human person, which is really unlike the way that any other nation explicitly holds itself together. And a lot of our politics, or at least a lot of the most intense divisions in our politics have been about what that means as a practical matter. It’s not been a division among people who disagree about whether that’s true, that we’re all created equal, for example, but rather about what it means and what it requires of us in any particular situation. And for that reason, American politics is actually unusually moralistic for a modern society.
We have unusually explicit moral disagreements in our political life, and that’s because we have a shared moral commitment, not because we don’t. So I don’t think it’s the case that a modern liberal polity is just procedural, and I don’t think that, in fact, the argument that some of our friends make that proceduralism is somehow morally neutral, just doesn’t make any sense to me. I think that proceduralism is unavoidably morally formative. It’s almost the most morally formative thing there is. The rules by which the regime addresses disputes are incredibly formative. How do you form people? You form people through habituation and virtue? Habituation is achieved by the rules by which we tell ourselves we have to act in public. That’s proceduralism. Proceduralism is deeply morally imbued, and our proceduralism is deeply imbued in our commitment to human equality. It begins from the fact that we believe we are all equally dignified human beings.
That’s why we don’t coerce people. That’s why we don’t force our religion on them. That’s why we treat one another with respect in the public square. So I think there is some underlying moral commitment that does hold us together. It’s not as thick as possible. We don’t agree about as much as the residents of the Vatican do, but we agree about a fair amount and the disagreements that then result our morally freighted in a way that I think ultimately speaks well of us. We’re obviously a divided and diverse society, but I do think that the way in which we live out that division begins from moral premises that should not be underestimated. They’re not that thin.
Speaker 2:
I think we might have time for one question from the audience if anyone does have a question.
Speaker 4:
Question over there.
Speaker 2:
Over here? Yes, thank you.
Speaker 6:
That’s good. I just attended an event about rank choice voting. I know it’s a political topic, but I was just wondering if that factors into your book and what your perspective is and you go on either side of it.
Speaker 3:
Yeah, I talk about rank choice a little bit. I do think that part of the problem we live with now has to do with the failure of the party system, and Bill got into this some too. The fact of 50/50 politics is not just a natural reality of the American polity, it’s a peculiar fact of 21st century life in our country. And I think that in some respects, it’s a function of a failure of our party system. And part of what that failure involves is that our politics is populated by people who are not interested in doing the jobs they’re elected to. That’s really only made possible by the nature of the primary system, which gives office seekers entirely different sets of incentives than the Constitutional system does. And I think primaries have become a bad fit for the American Constitutional system. I’m not sure they always were.
Primaries have been used for a long time and they didn’t really create this problem until relatively recently, but I am of the view that we need to reform our modes of candidate selection. That’s a job for the parties largely. But we’ve combined that process with state law in ways that means that would have to also be a job for state legislators. So I’m in favor of experimenting with things like rank choice in primaries. I think rank choice in general elections is actually a very different idea than that, and that the effect it would have on the party system would not be good for us.
I think strong parties are a good fit for the American system, but rank choice in primaries, which would allow for the parties to choose candidates who are better at making themselves broadly appealing, to put it simply, I think could help our system some. Basically, the primary system leaves us in a place where we start every election cycle by asking the craziest people in America what they want to see. And that’s just not a great way to think about how our politics should work. So it’s not written in stone, it’s not even written in the Constitution, and we should certainly think about ways to improve it.
Speaker 6:
I just want to ask you, following up on that, do you think we’ll ever have a valid quote, “three-party” valid alternative system, whether it be an energy or environmental party attempted to do that over the years? Do you ever think that that’s a viable or a rational [inaudible 01:02:02]?
Speaker 3:
Yeah, ever is a long time, but I’m not inclined to think so. I think two parties is built into the American system in a pretty deep way because of the structure of the Electoral College and just our political history. So I think that’d be hard to do in a durable way. But again, experimenting with the ways in which our two parties choose candidates is I think something we badly need now.
Speaker 2:
So unfortunately, we’ve come to the end of our time. We have a reception afterwards. We also have copies of the balls, perhaps the best book on Constitutional law that Jack Goldsmith has ever read, which is an extraordinary testament.
Speaker 4:
I said Constitutionalism.
Speaker 2:
Constitutionalism, you were clear. Yeah, by non-lawyer.
Speaker 4:
They’re different things.
Speaker 2:
Yeah. That’s outside available for sale, and please join me in thanking Yuval Levin, Jack Goldsmith, and Bill Kelley.