America is hopelessly polarized and dysfunctional, and the Constitution is to blame—or so generations of progressive critics have argued. The burdensome amendment process, the first-past-the-post elections, the unrepresentative Senate, the anti-majoritarian Supreme Court, and the idiosyncratic Electoral College all, in their own pernicious ways, paralyze our political life and drive us apart.
Not so, emphasized Yuval Levin in his timely and compelling new book, American Alliance. The Constitution, he argues, is not failing us; we are failing the Constitution. The infuriating eccentricities and endless veto points in our national charter are frustrating when your goal is a quick, complete political victory. But the Founding Fathers did not write the Constitution for a parliamentary-style majority victory. Instead, the Constitution, by design, forces compromise and negotiation. It is not just a legal and institutional framework; it is also what Levin calls “a framework for union and solidarity” that, if reclaimed, can help unite our fractured politics.
American AllianceHis approach is methodical. After a few preliminary chapters, Levin walks through the Constitution’s institutional components: federalism, the three branches of government, and political parties. (He notes that party politics was not part of the Founders’ vision, but that parties have nevertheless become an invaluable part of the country’s political structure.) These chapters each follow a pattern: a description of how the Founders designed things to to work and how that promoted unity; a fall from grace because we neglected that design; and finally a few specific regulations.
Take, for example, the chapter on Congress. Levin explains that while the Founding Fathers saw Congress as the most important branch of government, they also worried that the legislative branch would promote majority tyranny. So they created strong and independent executive and judicial branches and split the legislative branch into the House and Senate. The more representative House forces people with different political views “to interact with one another and thus create common ground.” Meanwhile, the Senate “preserves the regional balance of our national politics” and therefore forces geographically broader compromises. The institutional heart of Congress, then, is not giving majorities more power, but making it impossible to do anything without compromise.
Yet, criticism of Congress’s accommodationist structures has long been voiced, including by Woodrow Wilson, a recurring Congressional villain American Association. Wilson dismissed Congress as ineffective, writing that “the more power is divided, the more irresponsible it becomes.” It is better to give more power to democratic majorities and the experts who can facilitate their will, he thought. The constitutional structure of Congress did not change in response to these progressive criticisms, but our political culture did. Both Democrats and Republicans are taking power now and trying to thwart partisan measures, only to see the opposing party win in the next cycle and try to undo those changes in an equally partisan manner. This partisan, majoritarian politics is what Wilson wanted, Levin suggests—but Wilsonian politics runs counter to the ideals of our Madisonian Constitution.
Levin proposes several ways to reshape our political culture so that it meets the Constitution’s requirements for intraparty resolution. The rules of the House and Senate should be changed to give congressional committees more power to advance legislation, and party leaders less. Committees should hold more private work sessions away from the television cameras that turn every congressional hearing into an agitprop studio. Most dramatically, the House should be bigger—with 150 new members.
Levin’s prescriptions are compelling enough: If adopted, we would certainly be a more unified, functional country. But there is a tension at the core of it American Alliance.
In a 2013 article for the University of Chicago Law ReviewProfessors Eric Posner and Adrian Vermeule have noted that much constitutional law writing suffers from what they have called the “inside-outside fallacy.” Many articles will, on the one hand, adopt an outside, diagnostic perspective on a political problem, criticizing and condemning the choices and motivations of actors within the political system. But then, when it comes time to describe reforms, the article slides into an inside-the-system perspective, offering proposals that rely on those same actors to adopt a public-centered view.
American Alliance often has exactly this structure. Levin laments the growth of administrative agencies and the tendency of presidents to use that agency power to unilaterally “make law” when Congress refuses to do so. He also worries that presidents are “treating the office as a stage for mass performances” rather than as an austere institution. In a divided age, presidents can no longer “speak for a unified public,” and so instead speak “for their particular party members,” and use the office “to deepen our divisions.”
Still, several suggestions for presidential reforms should be implemented by the president himself.
divisive presidents. Levin is proposing a White House-led initiative to demand greater clarity from regulators on the regulatory authorizations for their actions. He also writes that presidents must “withdraw their rhetoric and reground their self-understanding of the character of the work of the executive branch.” But it’s not clear why partisan potters or pen-and-phone clerks would be interested in such changes.
To be fair, Levin argues that improving the presidency does not start with the president, but with a revitalized Congress. And yet the inside-outside tension persists in Congress. On the one hand, “Congress is weak, simply put, because its members want it to be weak.” On the other hand, reforms such as rejuvenating committees or increasing the size of the House depend on precisely those self-interested members acting in the interests of the institution as a whole.
Can the courts save us? Levin seems to think they can, but here the tension between inside and outside is at its most acute. For decades, conservative judges, recognizing the dangers of self-assured lawyers with lifetime appointments, have pursued a project of judicial restraint. As the late Justice Antonin Scalia wrote decades ago, “the greatest danger” of constitutional interpretation “is that judges will confuse their own preferences for the law.” Levin embraces this project, urging a “renewed judicial republicanism” that “puts the work of the legislature above the substantive preferences of judges.” He also worries about conservatives who have doubts about judicial restraint, especially now that the Supreme Court has a Republican-appointed majority.
Still, for someone concerned about the activism of judges of the past, Levin has a remarkable amount of confidence in the judges of the future. Judges should recognize that Congress, not the Supreme Court, is central to our constitutional structure. But courts should also, Levin argues, crack down on policing that constitutional structure, perhaps by requiring Congress to be clearer in its delegations to the executive branch and by insisting that independent agencies like the Securities and Exchange Commission and the Federal Trade Commission more accountable to the President.
According to this theory, Congress would have no choice but to be revitalized, since it could no longer offload its responsibilities onto the labyrinthine federal bureaucracy. Yet this is an empirical claim about how legislatures respond to judicial decisions, a claim that encounters some evidence to the contrary. Consider, for example, a study of states whose courts aggressively scrutinize delegations to state agencies. It found that when state courts invalidated laws for delegating too broadly, this often had little effect on the behavior of state legislatures, and could even be counterproductive, with some legislatures responding by writing vaguer rather than more precise laws.
More fundamentally, why should judges, with all the self-aggrandizing institutional incentives that enraged conservatives in the past, become selfless guardians of the constitutional order today? If Congress is supreme, why not delay it? Congress’ Judging constitutional structure, including controversial issues such as broad delegations or independent agencies? It is not easy to see whether judges are getting it right. As Levin concedes in his understated way, “in the hardest cases, those that matter most,” the original meaning of the Constitution can suffer from “a lack of clarity.” Inside-outside dilemmas like this are common in American AllianceThe reforms proposed in the book, while often meritorious, usually depend on the support or endorsement of precisely those people least likely to implement the reforms – or most likely to abuse power.
A more useful book could have focused on proposals in which the institutions charged with restoring constitutional order had incentives consistent with the proposed reforms. Perhaps the states, so often jealous of their political and parochial interests, should take the lead. Perhaps discordant state actions on issues where Congress has failed to respond to contemporary challenges can force the kind of national compromises Levin hopes for. (In chaotic fashion, you could see something like that happening now, with California embracing tough climate measures or Texas freelancing on immigration law.) But finding those workable alternatives is difficult, and Levin deserves a lot of credit for laying out a possible path forward, even if unlikely.
In his first sentence says American Association promises to be a “hopeful” book. And it is: it reflects the wise and subtle constitutional vision of the Framers, and convincingly argues that America would be a better governed and more united country if our politicians, judges, and presidents had embraced it. But they haven’t.
In this way, at least for the pessimist, there is an unavoidably discouraging side to it American Alliance. Well-thought-out arguments, convincingly presented, all too rarely prevail. But if there is one book that can break through, it is that of Yuval Levin.
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