Don’t Give Up on the Constitution

Estimated Reading Time: 6 minutes

I am enormously grateful to Law & Liberty for recruiting such heavy hitters to respond to my lead essay. What a joy to get such humbling and instructive comments, each brimming with its author’s characteristic intellectual virtues. I thank all four responders and only regret that the imperative for brevity in this summary reply means I can only scratch the surface of what they had to offer. They should know that I have more to say, especially by way of gratitude and admiration.

James Stoner brilliantly deepens and sharpens the case for the Constitution’s unifying potential in several important respects, and he rightly ends up worrying that the problem we face now is a shortage of will to repair what is broken.

I agree with him entirely that restoring the logic of American federalism would require not only a re-conception of the distribution of administrative responsibilities but also a recovery of federal fiscal restraint. Congress did not so much mandate as purchase the modern deformation of federalism, and the states have not so much surrendered as sold their prerogatives to Washington. But seeing that part of what all this has brought us is greater social division can reinforce the case for pushing back against it.

Stephanie Slade insightfully extends the logic of that case for federalism to also stress the unifying value of the Bill of Rights. Just as federalism takes some divisive questions off the national stage, so the Bill of Rights can, in the words of Justice Robert Jackson, “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.” This is a crucial point, though I would argue that the logic of federalism does not describe a trajectory of increasing personal freedom the further we move from the national government. Local constraints on personal choice are generally deemed more legitimate than national ones, but for that reason, they are often also more onerous. The state and local governments are given greater freedom of action, since, as James Madison put it in Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined, those which are to remain in the State governments are numerous and indefinite.”

The Constitution protects some personal rights in ways that limit such powers, and as those limits have come over time to be applied to the states as well as the federal government they have often served the kind of purpose Slade describes. But federalism and the Bill of Rights nonetheless approach the task of lowering the temperature of our politics differently. Slade makes a powerful case for “rediscovering that not every issue needs to be decided by government,” but the temptation to use the model of personal rights beyond its narrow sphere does pose serious risks.

John Inazu agrees with Slade that the role of core political rights should have a more central place than my essay gave it in our conception of the unifying potential of the Constitution. They are both plainly right about this. But in his wise, incisive way, Inazu also expresses grave concerns about whether we still possess enough of a common identity to be citizens of one society at all. He writes: “Perhaps citizens of this country can name an ‘us’ that is sometimes positioned—not always in the healthiest ways—against a ‘them’ that lies beyond our domestic borders. But beyond this loose sense of American identity, if we are not strangers, then what are we?”

I would say that we are fellow citizens, with an enormous amount in common. We disagree about a lot (though by no means everything), but our common culture, history, instincts, and presumptions add up to a common national character that no one outside the United States could miss. Our politics naturally takes shape around our disagreements, but we should not imagine that this renders Americans into strangers, let alone enemies, to one another. Ask Americans what they think of the opposite party, and they will say nasty things. But ask them about what they believe and prioritize themselves, and you will find a lot of common ground.

Aristotle’s conception of civic friendship is helpful on this front—it is a kind of friendship by analogy, much thinner than a comprehensive agreement on the highest things, but rooted in some shared ideals and focused on practical needs that confront us in common. (On this front, I highly recommend Paul Ludwig’s superb 2020 book Rediscovering Political Friendship.) Building on this foundation demands an emphasis on moral formation, as Inazu rightly notes, and on the formative institutions that are upstream of the political. But it can also benefit from a clearer sense of how the institutions of our constitutional system could form us toward a more accommodative mindset, and of what it would take for them to do so now in practice. Those would be complementary and much related efforts toward better formation in the republican virtue essential to our society’s wellbeing.

Our prospects now depend on our capacity to approach our governing institutions in a spirit of repair—informed by a sense of what is missing and broken, but inspired by a sense of what is good in what we have.

Andrew Beck eloquently contends that it is too late for any of this to matter and that no recovery of American constitutionalism is possible because we are too far down the path of civic corruption. “If there is common agreement on anything,” he writes, “it is between the left and right in their belief that we need regime change now.” He argues that the progressive deformation of the Constitution that I describe in my essay has utterly succeeded, and concludes: “As America slips further into the form of an Empire, most politically minded Americans will eventually recognize the urgent necessity of contending for control of the Emperor’s Ring: the imperial city and its institutions.”

His concerns are not unfounded, but I worry that they gesture toward an extravagant despair that exaggerates our difficulties and in the process justifies doing nothing about them. I do agree that our politics has grown bitterly divided in recent decades less because two competing visions of constitutionalism have faced off against each other than because the more progressive vision has been adopted in many arenas of our public life, and has changed our constitutional system in ways that neglect and degrade its unifying potential. But renewal in response to failure and dissatisfaction is a permanent possibility in American politics, provided we sustain a living link to the roots of our political tradition. That is the hard work of conservatives in every generation, and there is no excuse for shirking it.

The challenges confronting this particular generation when it comes to sustaining that effort are nowhere near the worst our country has seen. I am just not all that impressed with the contemporary left and its hold on the future, and I don’t think most Americans are either. The trouble is that we on the right are also not giving them much to be impressed with. There have been many moments in our history when it would have been far more reasonable to give up all hope for the constitutional project than it is today, and we are fortunate that prior generations did not do so. Future generations deserve no less from us.

Indeed, the Constitution’s durability has been underestimated from the start. On August 8, 1787, the constitutional convention took up the question of the formula for representation in the House of Representatives. In his notes from that day, James Madison recorded that, while he himself was making a point about how one proposed approach might play out over many decades, Massachusetts delegate Nathaniel Gorham rose to object that thinking so far ahead was a waste of time. “It is not to be supposed that the government will last so long as to produce this effect,” Gorham insisted. “Can it be supposed that this vast country, including the Western territory, will 150 years hence remain one nation?”

It was a reasonable question. And Madison made no mention in his notes of offering any reply to Gorham. But the Constitution that the convention ended up producing was itself a reply in the affirmative. The system of government it created could last, and it has lasted, with amendments and adaptations, far longer than even the century and a half that was the furthest that Gorham’s imagination could stretch. We have remained one nation, thanks in no small part to the Constitution’s distinct approach to keeping us together.

That approach still has a lot to offer us, but it is not self-executing. We have deformed and disrupted it, and our prospects now depend on our capacity to approach our governing institutions in a spirit of repair—informed by a sense of what is missing and broken, but inspired by a sense of what is good in what we have and could serve us well. This moment ceaselessly tempts us to repudiate our inheritance, but our common future as a nation requires us to renew it.


This article was published by Law & Liberty and is reproduced with permission.


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