When the First Congress in 1790 turned to the matter of the naturalization of foreigners, an authority expressly vested by the Constitution, it required that those seeking to become U.S. citizens take an oath “to support the constitution of the United States.” Five years later it modified the law, requiring (among other changes) that candidates for citizenship be “attached to the principles of the Constitution of the United States.” Until the 20th century, the exact language of the citizenship oath was left up to federal judges. But in 1929, through administrative regulations, the government formulated an official citizenship oath, which remains in effect. One of its requirements is that the applicant swear to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” If we make the not-unreasonable assumption that we do not ask more from naturalized citizens than from those native-born, then we can say that faithful American citizens support the Constitution, are attached to its principles, and are willing to defend it from its enemies.

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None of this, of course, means that Americans, new or old, shouldn’t criticize the nation’s fundamental law or seek to change it. After all, the Constitution establishes procedures for amending itself. (The American Founders also believed that apart from the formal amendment process the people always retained a natural right to replace a defective government with one more “likely to effect their Safety and Happiness,” as the Declaration of Independence had put it.) No sooner was the ink dry on the document completed in September 1787 and sent soon after to the states for ratification than delegates to the ratifying conventions began proposing amendments. By the time the ratification process was complete, seven state conventions had proposed 292 amendments. Eliminating duplicates, there were 102 distinct proposals. Some of these would have weakened, perhaps crippled, the new national government before it got off the ground by, for example, limiting Congress’s power to tax citizens directly and prohibiting a standing army in time of peace. But others, which focused on individual rights, found their way into the Bill of Rights and became part of the Constitution in 1791.

Seventeen amendments have been added since (of the more than 11,000 introduced by members of Congress), the last in 1992. Perhaps the most consequential amendments added since the Bill of Rights are the three Civil War amendments (13th, 14th, and 15th) and the three Progressive amendments (16th, 17th, and 19th). The former group ended slavery, guaranteed that the freed slaves (and all those born in the United States and subject to its jurisdiction) were citizens of the nation and of the state where they resided (thus overturning the Dred Scott v. Sandford decision of 1857), required that states provide all persons “due process” and “equal protection” of the laws, and prohibited states from denying the vote to anyone based on race. The Progressive amendments empowered Congress to tax incomes, provided for the direct election of senators, and guaranteed women the right to vote. 

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Though there is no disputing that it is difficult to amend the U.S. Constitution (as it was intended to be), it is also true that major social and political movements have had success changing the nation’s fundamental law. Nonetheless, as Dennis Hale and Marc Landy show in Keeping the Republic: A Defense of American Constitutionalism, the Constitution remains under attack as “broken,” “paralyzing,” “undemocratic,” and “obsolete.” In five fast-paced, well-documented chapters, the two Boston College political science professors defend “the Constitution against its long line of influential critics,” identifying as “the central error of the critics: their mistaken supposition that America should be a majoritarian democracy rather than the mitigated democracy created by the Constitution” (emphasis in the original throughout). Hale and Landy see the Constitution’s limits as “not a problem, but a solution to a problem,” namely, “the difficulty (even the danger) of popular government in a massive modern state.”

They catalogue the history of criticisms of the U.S. Constitution, moving from the Anti-Federalists to the abolitionists (including Henry David Thoreau and Frederick Douglass) to 19th-century utopians and then to 20th-century critics such as the early Progressives (Theodore Roosevelt, Woodrow Wilson, and Herbert Croly), Franklin Roosevelt, the New Left, and contemporary political scientists and law professors. Some of the criticisms are attacks on specific features of the Constitution—such as two senators allotted to represent each state regardless of size—and others challenge the very “way of life” the Constitution “undergirds.” The latter include the claims that “the Constitution is undemocratic; it fosters excessive individualism, greed, inequality, and corruption; it is insufficiently protective of rights; it was founded in slavery and exploitation; it is excessively fixed and rigid; and it forces the present to be governed by the past.” It is here (and elsewhere in the book) that Hale and Landy, quoting the influential scholar of the American Founding Herbert Storing, make the case for “mitigated popular government,” which strikes at the heart of the Progressive critique. (In his Senate testimony in 1977 opposing direct election of the president, Storing called the alternative to mitigated popular government “simplistic democracy.”) 

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In defending the U.S. Constitution, Keeping the Republic covers so many interesting, important topics that it is impossible to do them justice in this review. Here are some of them, many of which come up in several different chapters: the importance of public deliberation and how the expansion of the concept of rights undermines political deliberation, the necessity for Congress to assert control over the administrative state and to forestall the coming bankruptcy of the national government, the importance of civic virtue acquired through political involvement at the local level, the need for governing institutions to be grounded in the permanent features of human nature, the importance of private property and wealth, the value of federalism, the case against central planners, the continuing value of the Electoral College, the danger of expecting the federal government to manage our lives, and the ways in which the national government hides its true costs from the people. Readers are likely to be familiar with many of these arguments—yet perhaps not so succinctly stated and persuasively argued all in one place.  

One of the ironies of defending the Constitution against modern progressive criticism is that, as Hale and Landy acknowledge, the progressives seem to have gotten their way despite the Constitution. Here is my summary, drawing on the authors’ account, of the most important ways in which the progressives have prevailed.

First, we now have the kind of personalized presidency, purporting to embody and articulate “the voice of the people,” that Woodrow Wilson urged as essential for effective modern government. The democratization of presidential elections has freed the candidate from party control and encouraged the winner to think of himself as a kind of omnicompetent “tribune” of the people. 

Second, the federalism of the framers, so central to their constitutional design as both a check on national power and a necessary support for the virtues of local control, has been virtually eclipsed by the centralization of power in the national government. Though federalism was intended to keep the central government focused on national matters, it has failed to do so, as evidenced by the national government’s large hand in “public education, law enforcement, environmental regulation, and much else besides.” 

Third, the rise of the administrative state has empowered experts and central planners, who, because they are largely unaccountable to the public, “have considerable room to impose their own vision of the public good, which might well be at odds with that of the broader citizenry or even the elected legislature.” Near the end of their book, the authors make the telling observation that “while the famous ‘checks and balances’ of the Constitution have prevented any one branch from becoming permanently in the ascendance, they have not prevented the political class as a whole from transgressing the Constitution’s limitations.” 

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Finally, and perhaps most distressingly, the Progressive vision has fundamentally altered how Americans think about the purpose of government. This was evidenced by President Lyndon Johnson’s “Great Society” speech at the University of Michigan in May 1964. Hale and Landy quote a passage early in the speech in which Johnson reflects on the meaning of the principles of the Declaration of Independence: “The purpose of protecting the life of our nation, and preserving the liberty of our citizens, is to pursue the happiness of our people.” The authors write,

The clear implication is that it will be the government that will “pursue the happiness of our people.” Jefferson would be appalled. In his version of the Declaration, people have the right to pursue their own happiness, and the government is required only to recognize this right, and stay out of the way. The premise of the Great Society could not be more different from the premise of the Declaration.

One should add to the authors’ incisive reflection that the people will need more from government in order to pursue their happiness than simply staying out of their way. They need safe communities, property rights, effective and unbiased courts, protection from foreign foes, and an economic system that will reward their labors—all of which require effective government. Hale and Landy would not likely disagree with any of this.

To address the many dysfunctions of our political and governmental system, Keeping the Republic proposes a variety of reforms “working with the grain of the Constitution” rather than against it. If they had their way, the authors would, e.g., remove the federal government from policy arenas best handled at the state and local level, such as public education; stop “treating income subsidies as rights”; limit affirmative action “to those cases where employers have been found guilty of discrimination,” thus strictly enforcing the principle of equal opportunity; bring federal policy in line with the “unwritten principle of every constitutional order: namely, that the government may not spend itself and its citizens into bankruptcy”; and pass the REINS Act (Regulations from the Executive in Need of Scrutiny) requiring Congress to approve any federal regulation that imposes costs of at least $100 million a year. The chief culprit here is the U.S. Congress, which has largely “abandon[ed]…its constitutional responsibilities.” 

In the end, Keeping the Republic is an appeal to Americans to “think constitutionally” about their own responsibilities as citizens, about the structure and powers of the institutions of the national government, and about the kinds of policies that will best serve the nation. In their final paragraphs, Hale and Landy call for a restoration of civic comity: “[t]he kind of mutual respect that makes self-government possible.” Though we all have a legal right to call the members of the opposing political party “morons, or racists, or…‘deplorables’” (or “garbage”?), this is not healthy for the body politic. The final sentence calls on “political leaders…to set a good example.” 

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Because there cannot be too many good books on the U.S. Constitution, we are fortunate that Yuval Levin, the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute, has given us American Covenant: How the Constitution Unified Our Nation—and Could Again. American Covenant and Keeping the Republic have much in common. Both defend the Constitution from the progressive charge that it is insufficiently democratic. Both criticize Congress for delegating its essential lawmaking responsibilities to the executive branch—Levin writing that “congressional dysfunction is now at the heart of our system’s broader problems” and Hale and Landy that “[t]he future of the republic rests on the willingness of Congress to reassert that noble ambition [to fight against executive and judicial aggrandizement].” Both decry the idea—with its openness to demagoguery—that the president is a kind of “tribune” of the people, its “voice” in national affairs. Both defend the Electoral College. Both call for a renewed federalism in order to restrict national authority to national matters, to accommodate the growing diversity of the American people, and to nurture civic virtues through popular participation in state and local government.

Yet, American Covenant is a different kind of book than Keeping the Republic. It is much less empirical and more theoretical. While it defends our fundamental law against its critics, it also calls on all of us to “rediscover[] its fundamental purposes.” In this respect, one might think of the book as a work in the political theory of the Constitution. And, as its subtitle announces, it promises to show how reengaging with the Constitution will help to reunify the nation.

Citing Martin Diamond, another noted midcentury scholar of American political thought, Levin holds that the “spirit of the Constitution” is “plainly democratic” and “actually much more democratic than the Declaration, which, after all, did not specify any particular form of government at all [and] made no reference or commitment to majority rule.” Moreover, it embraces a republicanism that “emphasizes our responsibilities to one another and to the common good.” This “republicanism is the deepest political wellspring of the Constitution, but it has been largely lost to us.” It follows that “American constitutionalism requires a distinctly republican virtue and cannot do without it.”

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In practice, American constitutionalism calls for a Congress-centered national government in which the various interests and views that constitute the polity negotiate and bargain with each other to “forge common ground.” The Constitution’s apparent “counter-majoritarian restraints,” like bicameralism and the presidential veto, do not so much “frustrate” majority rule as “build and broaden majorities.” Here, the institutions, in effect, “manufactur[e] common ground in society—producing consensus that otherwise would not exist.” Put most succinctly, we “build common ground through common action.” Resolving our problems in this way “form[s]…our public life” and “help[s] mold the American character.” Ideally, we develop “constitutional habits” that “serve as the foundation of a joint pursuit of the common good.” This, in a nutshell, is how the workings of our constitutional institutions can help to unify the nation. 

This deeply thoughtful book is also a challenging one. It raises constitutional issues of the first order. In his introduction, Levin acknowledges the contribution to constitutional studies of “eminent legal scholars, historians, political scientists, [and] public officials,” adding that his own book “seeks only to make a modest contribution to a vital conversation.” In that spirit, I offer the following reflections to advance that conversation. 

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No argument is more fundamental to Levin’s constitutionalism than the preeminence of Congress among the three governing institutions. It was to be “the most powerful” branch of government—“the primary and predominant institution of the American system of government.” Indeed, “[i]t is of the essence of republican government that the legislature should predominate.” This was the framers’ conscious intention when they wrote the Constitution, and their government, Levin concludes, “should be understood to be failing if it is not dominated by Congress.” 

Levin, of course, is familiar with Publius’s warnings in The Federalist about the dangers of legislative excess and overreaching. When James Madison wrote that “it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions,” he was referring, after all, to the new Congress, not the presidency. Levin quotes Madison’s well-known statement elsewhere in The Federalist that “[i]n republican government, the legislative authority necessarily predominates.” To his credit, Levin, unlike many others who defend congressional supremacy, quotes Madison’s very next words: “The remedy for this inconveniency….” That remedy was bicameralism and the fortification of the executive through a qualified veto. We might well ask whether Madison was arguing that every true republican government must have a dominant legislature, or rather that historically, republican governments have been dominated by their legislatures, usually with dire consequences, and so legislatures must be cut down to size if republican government is to work well.  

Surely, Alexander Hamilton’s eleven Federalist essays on the presidency describe a strong and independent office whose occupant would have a will of his own and the incentive to push back against legislative encroachments, and even “to plan and undertake extensive and arduous enterprises for the public benefit.” In a formal sense, Congress would be the dominant lawmaking institution. But even here, with his veto, indefinite re-eligibility, and a mode of election that was essentially popular, the new chief executive would have the resources to be the political equal of Congress.  

It’s not clear how much of this Levin would disagree with, or what he would say about the relative influence of Congress and the president during the Washington and Jefferson administrations, which covered 16 of the first 20 years under the Constitution. Although Levin acknowledges that the president can be “a kind of first mover in our politics and…set the general direction of the national government,” Hamilton went further and dominated domestic policymaking from his perch as secretary of the treasury during President Washington’s first term. For Levin, the president’s most important contribution to national unity is not his influence on policy, but his sound, consistent, and energetic administration of the laws—an essential element of the framers’ design. 

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For Levin, the nation’s great diversity of interests and opinions simply cannot be represented by a single public official. In general, our national unity, or common voice, is not something “detect[ed]” or “express[ed]” by our presidents, but rather is “formed” “[o]nly where our plurality is represented and its factions can encounter and deal with each other—that is, only in Congress.” The president can make only a “limited” contribution to this process.

Thus, the modern “rhetorical presidency,” in which the chief executive makes direct popular appeals, has become, according to Levin, “likely the single most divisive facet of our politics—an incessant and inexhaustible fountain of tribalism and disunity.” Here it would be interesting to know what Levin thinks about Ronald Reagan’s rhetorical efforts to convey to the American people the moral stakes in the Cold War and to teach the principles of freedom, as recounted, for example, in William Muir’s The Bully Pulpit: The Presidential Leadership of Ronald Reagan (1992).

One should add that Levin does not address foreign affairs and war-making. One might say that his book is about the domestic Constitution, not the national security Constitution. And it seems fair to note that as between Congress and the presidency, it was the latter that dominated foreign affairs during the first decades under the Constitution (and ever since).

Levin’s assessment of the proper roles of Congress and the presidency in American national government, and their respective contributions to national unity (or disunity), turns in large part on how, ideally, Congress should make the nation’s laws. Early in the book, he describes the lawmaking process as one of “negotiation,” “bargaining,” and “coalition building.” Representing the nation’s varied interests and opinions, the members of Congress use these means to “produc[e] consensus that otherwise would not exist.” This is a politics that “puts bargaining at its center” and “is not fundamentally a search for truth so much as for mutual accommodation.” Levin writes that “coalition building” is what we often mean by “deliberation.”

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There is, however, another way to think about deliberation, which sees it not so much as synonymous with bargaining as an alternative to it. This is deliberation as reasoning on the merits of public policy. Whereas bargaining may result in accommodation, deliberation, so defined, seeks the best policy. Imagine that the issue before Congress is federal tax policy. We would naturally ask, what is the best tax policy for the United States at this time in our history, given the condition of our economy? We would expect the members of Congress to think about the issue this way and to ask the following kinds of more specific questions: Is the current tax burden in the nation fairly distributed? Are the rich paying “their fair share”? Will increasing tax rates help to balance the federal budget? Will lowering rates stimulate the economy to such a degree that tax cuts will “pay for themselves”? Should taxes on businesses be lowered to attract foreign corporations? Should tariffs be raised to protect American industries, or lowered to promote greater international trade? In a deliberative process, all these questions (and many others) would be addressed. But in a pure bargaining process, all that would matter would be building a majority coalition of interests, with no necessary consideration of the broader national good. 

At times, American Covenant seems to embrace deliberation as reasoning on the merits and to recognize that Madison and his fellow framers wanted their new institutions to work just this way: “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” But more often, Levin argues that during this process if you want “to persuade others to go along with you,…you have to show them that what you want would be good for them too and so to present your own interest in terms of a broader good and a broader truth.” Yet if the members of Congress argue with each other about the “broader good” and the “broader truth,” are they still bargaining; or are they deliberating in the classical sense of reasoning together about how to advance the common good?

If deliberation is understood as a reasoning process that calls on the wisdom of public officials to determine “the true interest of their country,” then the Constitution provides a large opening for presidential influence—or, we might say, presidential persuasion—as signaled by its command that the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” Implicit here is the expectation that the president (or department heads acting on his behalf) would make their case to Congress for the merits of such measures, that is, for why they were “necessary and expedient.” As Gary Schmitt and I show in a recent paper for the American Enterprise Institute, “The Hamilton-Madison Split Over Executive Power” (2022), most members of the First Congress did not balk at the executive branch playing a large role in formulating policy.  

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Levin makes very clear that his entire argument for forging greater national unity through the revitalization of the Constitution’s institutions and principles rests on a key assumption: that “Americans do have some basic principles in common—especially those laid out in the Declaration of Independence.” The “self-evident truths” of the Declaration “remain as true as ever” and “are foundational to the character of our society.” Though “the Constitution does not restate these truths,…they are a starting point for its essential republicanism.” Indeed, “[w]ithout at least some general agreement about these [truths], no American polity is imaginable, and no constitutional system could be sustained.”  

Levin affirms that at most “a few people on the fringes of our two broad political camps…deny these principles and openly reject the Declaration of Independence.” But is this right? Earlier he had written that the Progressivism of the late 19th and early 20th centuries, especially as promoted by Woodrow Wilson and Herbert Croly, rejected “the deepest assumptions underlying the framers’ constitutionalism” and dismissed the framers’ “broader vision of human nature and social thought.” What, then, of natural rights? Levin implies that progressivism rejected natural rights as well. He quotes at some length from the speech President Calvin Coolidge gave in 1926 on the 150th anniversary of the Declaration. In the speech Coolidge challenges the notion that we have progressed beyond the principles of the Declaration:

If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.

Here, Coolidge seems to be countering the kind of sentiment voiced by Woodrow Wilson in a speech to the Jefferson Club of Los Angeles in 1911: “If you want to understand the real Declaration of Independence, do not repeat the preface. Make a new table of contents, make a new set of counts in the indictment, make a new statement of the things you mean to set right.” By “preface” Wilson meant the grand statement of principles in the document’s first two paragraphs. In a speech four years earlier on “The Author and Signers of the Declaration,” Wilson quoted the famous language on inalienable rights but then insisted that “each generation must form its own conception of what liberty is.” “Mr. Jefferson and his colleagues in the Continental Congress,” Wilson explained, “did not attempt to dictate the aims and objects of any generation but their own.” Yet, by the Declaration’s own terms, every generation should have as its “aim[]” and “object[]” the establishment of governments that secured their natural rights and that rest on the consent of the governed. 

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Very near the end of American Covenant, Levin quotes Harry V. Jaffa: “We must recognize the necessity of preventing the enemies of liberty from gaining power in the regime of liberty; but we must also recognize the extreme difficulty, and the danger, in the possible confusion of those whose interests differ from ours within that regime, and those who in truth stand outside of it.” Levin’s point is to focus on the latter part of Jaffa’s statement: that our political opponents do not necessarily stand outside of the regime of liberty. “We must work to see,” writes Levin, “that our fellow citizens are not our enemies.” 

Jaffa would likely respond that we must also work to see that the enemies of liberty do not gain power in the regime of liberty. Consider Brian Lozenski, the “national leader on Ethnic Studies” whom Governor Tim Walz put in charge “of overhauling Minnesota’s K-12 education.” Thanks to Stanley Kurtz of National Review and John Hinderaker of Power Line, we know that Lozenski posted a video on YouTube, later removed, in which he said the quiet part out loud:

The first tenet of critical race theory is that the United States as constructed is irreversibly racist. So if the nation-state as constructed is irreversibly racist, then it must be done with, it must be overthrown, right. And so we can’t be like, “Oh no, critical race theory is just about telling our stories and divers[ity].” It’s not about that. It’s about overthrow. It’s insurgent…. You can’t be a critical race theorist and be pro-U.S. Okay, it is an anti-state theory that says, The United States needs to be deconstructed, period.

Whatever type of regime this professor expects to emerge out of the ashes of the current constitutional order, one thing is clear: it will not be one that embraces the natural law principles of the Declaration of Independence. 

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In a recent issue of the Chronicle of Higher Education (November 21, 2024), essayist and literary critic William Deresiewicz nicely summarized the “cultural revolution” that “has been imposed on this country from the top down” over the past decade or so:

Its ideas originated in the academy, and it’s been carried out of the academy by elite-educated activists and journalists and academics…. Its agenda includes the decriminalization or nonprosecution of property and drug crimes and, ultimately, the abolition of police and prisons; open borders effectively if not explicitly; the suppression of speech that is judged to be harmful to disadvantaged groups; “affirmative” care for gender-dysphoric youth (puberty blockers followed by cross-sex hormones followed, in some cases, by mastectomies and the inclusion of natal males in girls’ and women’s sports); and the replacement of equality by equity—of equal opportunity for individuals by equal outcomes for designated demographic groups—as the goal of social policy.

And if this was not enough:

It insists that the state is evil, that the nuclear family is evil, that something called “whiteness” is evil, that the sex binary, which is core to human biology, is a social construct. It is responsible for the DEI regimes, the training and minders and guidelines, that have blighted American workplaces, including academic ones…. It is joyless, vengeful, and tyrannical. It is purist and totalistic. It demands affirmative, continuous, and enthusiastic consent.

Though it is surely true that the vast majority of Americans do not subscribe to these views, their “long march through the institutions” of American culture, including even professional and scientific organizations, can hardly be denied. There are, perhaps, some signs of hope that we are already past peak “wokeness” in the United States, and that in the not-too-distant future we will look back at all of this as a peculiar derangement in the culture that burned itself out with no lasting effects. But perhaps the enemies of liberty have just gotten started, and the nation is headed toward a major crack-up, likely along geographic lines. Keeping the Republic and American Covenant both rightly emphasize that sound constitutional practice can improve American culture. Yet there is also deep truth in the view that politics is downstream from culture. If the effect of culture on politics is more powerful than the effect of politics (even constitutional politics) on culture, as seems likely, then fixing our constitutional practice will, in the end, require fixing the culture.