It is not an intrinsic indictment of today’s national government to say that the Framers of the U.S. Constitution would not recognize it. They were, after all, revolutionaries who threw off the mother empire on the battlefield and threw off the Articles of Confederation behind closed doors. They neither asked nor sought either unthinking or eternal submission. The question is whether their wisdom and the endurance of their handiwork merit deferential respect.
Lincoln thought they did. He explained at Cooper Union that we are not “bound to follow implicitly in whatever our fathers did.” That “would be to discard all the lights of current experience—to reject all progress—all improvement.” However:
What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand; and most surely not in a case whereof we ourselves declare they understood the question better than we.
Lincoln’s standard for constitutional change, in other words, is not blind deference but rather thoughtful deference. On constitutional issues, the views of “our fathers” carry a presumption in their favor. That presumption can be overcome only by the application of experience with the goal of improvement.
That the Framers’ conception of the separation of powers is currently in disarray, few would dispute. Restoring the proper limits to spheres of authority will take reforms of several kinds, but without an engaged and informed electorate, they will fix little.
That brings us to the nature of American constitutional government today. The changes are myriad. The party system has trumped the separation of powers. The New Deal regime has vastly expanded national power. The administrative state has eroded republicanism. Lincoln’s question about these and other changes is whether they reflect deference to the Framers and draw on their wisdom. In some cases, they do. In many, we have spurned not only the Framers’ example but Lincoln’s, too.
The Constitution prescribes a system for amendment that requires support for regime-level change to be persistent and nationally dispersed. Federalist 43 explained: “The mode [of constitutional amendment] preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
The fact that this system has been employed only 27 times—10 of them in the immediate aftermath of ratification—might itself be the greatest shock to the Framers if they saw the Constitution today. In that sense, the “veneration” for which Federalist 49 calls may have set in too deeply: The sense is that an issue must rise to the level of extraordinary importance, even crisis, before the Constitution can be touched.
Yet it has been touched. A simple glance at the regime verifies that. Not only that, it has been changed in precisely the ways the Framers would not have predicted. In Federalist 85, for example, Alexander Hamilton predicted that amendments would “be applicable to the organization of the government, not to the mass of its powers.” The mass of national power may be the most explicit and far-reaching change in the regime.
And yet: No less an authority than James Madison suggested changes could occur outside the process of amendment. In a veto message in January 1815, President Madison dropped his constitutional objections to the National Bank he had bitterly opposed in the 1790s. He explained that he was
waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.
Put otherwise, Madison recognizes the possibility of constitutional change not just by formal amendment but also by persistent consensus. This fact supplies the gravest challenge to those disposed to heed Federalist 49’s call for constitutional veneration. The most significant changes in the regime—the erosion of separation of powers, the rise of administration, the scope of national powers—arguably can claim even more persistent and generational consensus than the National Bank could in 1815.
It is only when we seek a substantive, not merely procedural, standard for constitutional change that we see the problem in its full dimensions. When Hamilton predicted that amendments would fine-tune procedures but not fundamentally expand the scope of the regime, what he meant was that the Constitution’s basic principles should animate reform. Edmund Burke, the great theorist of conserving reform, made a comparable point in Reflections on the Revolution in France:
I would not exclude [constitutional] alteration neither; but even when I changed, it should be to preserve. I should be led to my remedy by a great grievance. In what I did, I should follow the example of our ancestors. I would make the reparation as nearly as possible in the style of the building.
Do the constitutional changes wrought since the Founding reflect great need while preserving the principles of the regime? In most cases they do not. A review of several of those changes, gauged against the Hamiltonian and Burkean standard of reform, shows why—and points to promising priorities for constitutional renewal.
The erosion of the separation of powers is perhaps the most fundamental constitutional change since the Founding. The irony is that Madison helped induce it by co-founding the party system with Thomas Jefferson. The party system has overridden institutional loyalty—the motive force that Madison as Publius said would maintain separation of powers—with institutional ones.
There is nothing intrinsically wrong with deferring to experts in the same way Lincoln deferred to the Framers: respectfully but not blindly. But there are few political questions that are simple matters of expertise, if only because experts within a discipline disagree with each other.
This is seen most acutely in the collapse of congressional authority at the hands of Congress. The delegation of vast swaths of authority to the executive branch in the name of sweeping and poorly articulated goals is the clearest illustration. Members of Congress show little appetite for defending their own authority, either giving it away or—on those rare occasions when dander rises—asking the courts to fight the battle against the executive for them.
A renewal of the separation of powers therefore demands conserving reforms whose goal is to induce institutional assertion. Term limits might be a reform in the Hamiltonian mode of changes in structure rather than scope. Congressional careerism did not always encourage legislators to surrender their own authority. The great careerists, like Henry Clay and Daniel Webster, defended legislative power.
No more: One senses that the reason to maintain an infinite career now is personal, not political, and the cost of maintaining one’s job has been to empty it of real authority. As Yuval Levin has noted, members of Congress today are performers, not legislators.
The case for term limits is that they might—might—change the motive for serving. By removing the possibility of an infinite career, they hold the promise of focusing a legislator’s attention on the job at hand. A legislator whose motive is accomplishing or defending something in a discrete period of time might be inclined to defend his or her authority to do so.
Of course, there is no silver constitutional bullet. The ultimate guarantor of congressional authority is a public willing to vote for members who will uphold it—a public that is familiar with the fundamental importance of the separation of powers and that will elect representatives accordingly.
There is consequently a related problem: the national obsession with the presidency and the corresponding deference to administrative expertise.
The presidency has become the sun around which all political actors orbit. Its power is swollen beyond the Framers’ recognition. Abetted by Congress, the war powers that necessarily expanded the presidency in the 20th century have crept into the domestic realm.
The expansion of presidential power has also aggravated the obsession with presidential personalities. Pick one’s partisan poison: Barack Obama and Donald Trump both aroused intensely personal loyalties and antipathies. Perhaps even more disturbing, these have seeped into lower levels of politics, so much so that candidates for local office routinely declare their loyalty or opposition to presidents who have, or should have, no bearing on the questions in dispute.
The problem is that the expansion of the presidency means the corrosion of self-government. That observation stands against the Jacksonian view that the president is the only national officer who is nationally chosen. The very fact of national election means the presidency is a binary institution: Those who support the president are in; those who oppose the president are out. Congress is far better equipped to register the nuances in public opinion that just might lead to more fruitful political conversation.
Here again, citizens must care for constitutional integrity over showmanship or even policy. That something should be done does not mean the president should do it. Until voters not only grasp this distinction but also cast ballots based on it, presidential bloat will continue.
The irony is that despite this fixation on the person of the president, the real source of executive power is the administrative state. Congress delegates authority to the executive, typically with only the most basic principles attached. It rarely recognizes that these principles almost always conflict with other principles, often articulated in other laws. All this requires resolution and implementation, which we have chosen to address by seeking expertise. American politics has therefore witnessed the rise of administration over politics.
The case for term limits is that they might—might—change the motive for serving. By removing the possibility of an infinite career, they hold the promise of focusing a legislator’s attention on the job at hand.
The irony is that despite this fixation on the person of the president, the real source of executive power is the administrative state. Congress delegates authority to the executive, typically with only the most basic principles attached. It rarely recognizes that these principles almost always conflict with other principles, often articulated in other laws. All this requires resolution and implementation, which we have chosen to address by seeking expertise. American politics has therefore witnessed the rise of administration over politics.
Overcoming this requires recalibrating our view of expertise. There is nothing intrinsically wrong with deferring to experts in the same way Lincoln deferred to the Framers: respectfully but not blindly. But there are few political questions that are simple matters of expertise, if only because experts within a discipline disagree with each other and because most political issues require a prudential balancing of different issues.
The COVID-19 pandemic is a case in point: A politician who wishes to “follow the science,” as the refrain goes, must first ask whether scientific experts agree with each other. They rarely do. But more important, he or she must weigh public health expertise against medical expertise. Physical health must be balanced against mental health. All these questions must be balanced with expertise from different specialties, whether economics or sociology.
A calibrated deference to expertise would recognize the inescapable fact that politics, bien entendu, must govern expertise. The prudent politician will genuinely value expertise but recognize that most political questions are too complex to be distilled to a single form of it. The tyranny of expertise and the populist dismissal of all expertise are both real phenomena. Prudence must hold the balance between them.
The simplistic demand of deference to experts also obliterates another constitutional value we should revive: variety.
All the foregoing dynamics—reflexive partisanship, obsession with the presidency, deference to expertise—work against the principle of federalism. The case for renewing federalism is the value of variety and subsidiarity combined with the danger of centralized power.
James Madison, an advocate of both national authority within its proper sphere and local authority within its, offered two arguments for federalism in The Federalist. The Madison of Federalist 39 saw federalism as a normative principle of politics that was analogous to the principle of subsidiarity. On this view, animated by the principle of self-government, local issues should in principle be decided by local majorities.
In Federalist 44 and 46, however, Madison offered a different view, what we might call “administrative” federalism. According to this view, the people were entitled to allocate authority at whatever level of government they found to be most competent. If, to take a modern example, the national government was better at hauling away the trash, there was no principled reason the people should be prevented from assigning it to do so.
Administrative federalism has generally triumphed over normative federalism. A healthier balance between the two would help renew the principles of the regime, especially republicanism. As Tocqueville noted, citizen participation in local government is more meaningful than a dissipated affiliation with national government, so federalism serves the purpose of encouraging the common good and discouraging unhealthy individualism. It also promotes variety—Brandeis’ “laboratories of democracy.” Neither political party has a monopoly on virtue here. Republicans have sought to impose their views on issues ranging from education to abortion at the national level, while Democrats have done the same. The cost is extracted in public alienation from politics.
The growing tendency to outsource political or constitutional disputes to the judiciary also threatens self-government. This has tended, but only tended, to be a progressive phenomenon inextricable from the progressive aspiration to “scientific legislation.”
Widespread deference to courts undermines self-government in the same way that inactivity atrophies muscles. A rights-obsessed culture on both ends of the political spectrum surrenders the citizen’s responsibility to undertake the political work of balancing rights, nearly all of which clash with other priorities.
That is not to say judges have no role to play in checking politics. They do. But their disposition should be deferential to public opinion as it is constitutionally registered: through elections and subsequent representation. The late-19th-century legal scholar James Bradley Thayer is held in low repute in many legal circles today. But there is more wisdom in his rule of the “clear mistake” (i.e., courts should not overturn legislation unless “those who have the right to make laws have not merely made a mistake, but have made a very clear one”) than is generally recognized.
In part, that requires the elected branches to be willing to use their ample powers to check the courts. It also requires that judges, like other constitutional officers, have a proper view of their own power rather than pursuing it to the hilt until they meet a countervailing force. And ultimately, it requires a disposition among the people to converse rather than to sue.
The Madison of Federalist 39 saw federalism as a normative principle of politics that was analogous to the principle of subsidiarity. On this view, animated by the principle of self-government, local issues should in principle be decided by local majorities.
Federalist 10’s ethic of representation, according to which the legislator’s vocation is to “refine and enlarge the public views,” is being squeezed by the pressure of immediacy. The pace of politics and the demand for instant political gratification make representation difficult. Put otherwise, representatives no longer have the constitutional space in which to deliberate and allow public passions to dissipate with time.
It bears emphasis that this is not a purely elite view of representation. Unlike Burke’s representative in his “Speech to the Electors of Bristol,” who is accountable to his or her own conscience, Madison’s representative is bound to the raw material of public opinion. But no one would run for Congress today on a promise to refine and enlarge his or her constituents’ views. Candidates are much likelier to pledge obedience to them.
This is not, at core, a problem of craven representatives. It is a failure of humility on the part of the people. It is also a reflection of an unhealthy obsession with politics—embodied by partisan, 24-hour news—that collapses the proper distance between representative and citizen.
Thus the foundation on which constitutional renewal ultimately rests: all of us.
At the Virginia Ratifying Convention, Patrick Henry, opposing the Constitution, accused Madison of failing to account for virtue in the proposed regime. Madison replied: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”
He had expressed a similar sentiment in Federalist 55:
As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.
Yet these more salutary qualities require cultivation, and the basic moral disposition they entail must be wedded to basic civic knowledge. Civic education in America lies in a sorry state, either neglected—which is more common than is supposed—or distorted.
Civic education must partake of the mechanics of the regime, but also the principles that undergird them: Judge Learned Hand’s modest spirit of liberty, “which is not too sure that it is right”; an ethic that how things happen is as important as what occurs; and patience for the tempo of constitutional time. These are best imparted not by finger-wagging but rather by cultivating what Burke called “the moral imagination”: the ability to derive moral lessons without being explicitly lectured on morality.
