Envisioning a Constitutional Restoration
Criticisms of the reach and scope of the administrative state too often miss the point. In justly blaming executive agencies for overreaching, they let Congress largely escape blame. But for decades now, Congress has chosen to delegate to federal agencies its constitutional birthright of writing laws (and in some cases even its power of the purse) for the pottage of distributing to various constituencies the spoils of executive government. Congress, as John Marini has observed, saves itself the trouble of behaving as a self-governing body, opting instead to manage the administrative state, which thus becomes, in a disturbing constitutional inversion, the real source of Congress's authority.
The result is a system of government that understands itself as drawing its legitimacy from its own capacity to act, rather than from the faithful execution of its constitutional duty to make and enforce laws in the interests of its constituents. By putting the executive first, we emphasize the value of administrative action and de-emphasize the significance of allegiance to legitimately enacted law. The intense partisanship of our time has exacerbated this tendency. Even members of Congress themselves, who might be expected to demand respect for their own institutional prerogatives, routinely place partisan policy interests over constitutional and institutional interests — deferring to a president of their own party and declining to check the power of the federal bureaucracy when it serves goals their party cares about.
It would be hard to argue that the public is happy with what this inversion has wrought. Recent years have witnessed unmistakable signs of the people's dissatisfaction with what their government is doing and how it is doing it. Both parties have frantically sought to capitalize on this public dissatisfaction, cynically seeking to channel public distrust and contempt for politics to their benefit.
The chief result of this, so far, has been something neither party could have intended: the election of Donald Trump, who embodied and channeled the public's frustration, even if he never quite offered ways to alleviate it. Trump's rise is clearly a shock to the system. But in a further irony, the effect of this shock may be as unintended as its cause: It may combat the constitutional inversion that has done so much to undermine the legitimacy of our institutions, though not in the way Trump or his supporters might intend or imagine. Rather, it may once again separate partisan from institutional interests.
Obviously, Donald Trump tapped a new source of nationalist political energy that many conservatives didn't perceive. But conservatives in Congress didn't run on anything much resembling Trump's agenda, despite the fact that he was the Republican presidential nominee. And Trump's policies, such as they are, don't appear to have become Congress's policies so far. In fact, the internal ideological divisions rending the Republican Party — between conservatives, moderates, and populist nationalists — could well translate into divisions between the branches of our government, rather than across them.
We have already seen some divergence and tension between the Republican-led Congress and the Trump administration on health care. Other policy debates are sure to follow regarding taxes, financial regulation, infrastructure, and more. In each case, the prospect of ideological divisions matching institutional divisions — with conservatives in Congress finding themselves at odds with nationalists and moderates in the administration — looks altogether plausible.
But to leave their mark, these congressional conservatives will need to assert their authority in the manner Publius described: They must become political rather than party animals, behaving with competitive constitutional purpose in the Congress and refusing to further divest their powers to federal agencies. Congressional Republicans would be doing President Trump a favor if they ended up following such a course. Discipline on their part in the service of their institutional prerogatives could spark the same in his exercise of his own institutional authority. And the president could surely use more discipline.
But such a paradoxical result is hardly the only imaginable outcome of the shock now being administered to our system of government. It is easy to imagine how the rise of Trump might well contribute to the inversion of constitutional powers rather than counteracting it. President Trump, not unlike President Obama before him, seems inclined to treat the presidency as the focal point of our constitutional system and the heart of our democracy. Both have been, in this sense, of one mind with many in the progressive tradition. Recall that Woodrow Wilson and Theodore Roosevelt both proclaimed in different ways that the president must embody the will of the American people as the only truly national representative of the voting public.
The idea that only the president is truly an expression of majority rule at the national level — and therefore that the majority that elects the president is the true governing majority in America — is central to the constitutional inversion that bedevils our politics. And it is central to the liberation of the president from constitutional constraints. As Wilson noted in a speech at Columbia University in 1907, "The President is at liberty both in law and conscience to be as big a man as he can." This is part and parcel of that presidential "bully pulpit" we hear so much about. But it is an attitude that inherently calls into doubt Congress's legitimacy as the representative of the American public — elected by a majority to govern, and (unlike the president) equipped to do so by enlarging the views evident among the public through debate and compromise between interests and principles, to achieve something like a national common good.
In this sense, Congress's surrender of governing authority to the executive amounts to the surrender of one majority's power to another — and the ceding of one conception of self-government for another that is less appropriate for a republic. That remains the default trajectory of our system of government now. But the Trump era offers the possibility of reversing this constitutional inversion. We will realize that possibility, however, only if we recognize the need for it, and the opportunity that this new era presents. Only then can a restoration begin.
Before we can begin a resuscitation of Congress's dormant constitutional strength, we should briefly consider whether representative government itself in a late-modern democracy has been rendered impotent — or whether perhaps the constitutional inversion is justified. After all, some impressive scholars have sought to demonstrate that the maturation of American democracy can be observed in the rise of national majorities best led by presidents.
Most recently, we have seen a striking (if unintended) explanation of the Trump presidency in Eric Posner and Adrian Vermeule's 2010 brief explaining executive supremacy as the way we now do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian ideal of the separation of powers as a constraint on the presidency no longer exists in any meaningful sense — and good riddance. The more authoritative check on executive power, they say, is majority opinion itself and the fact that the president must face the voters every four years. This is the only source we have now for safe, effective, and informally limited government. Those longing for Madison's elegant vision, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation. We might observe of this thesis that its spirit is captured in the reciprocal observation likely made by many Trump voters: They had their thug, now we get our thug.
But the essential premise of this thesis — that turning power over to the president will not undermine our free society because that power will be restrained by the voters who grant it — is highly dubious. Is plebiscitary executive democracy writ large capable of restraining an enthusiastic executive? And what would resting that responsibility with voters do to those voters and to our politics?
Commenting on the Posner-Vermeule thesis, Christopher DeMuth summarizes the essence of the latter concern:
No doubt the concentration of power in the executive has prompted more intense public scrutiny of the president and political competition for the presidency, which in turn have disciplined the exercise of executive power. But the arrangement operates through politicization — the intrusion of politics into many hitherto private areas of life. It requires the public to be continuously attentive to political developments for the purpose of making an occasional, highly problematic decision....These circumstances surely contribute to the political pathologies of the age: bitter partisanship, extreme and simplistic formulations of policy questions, routine personal vilification of the president, and the "permanent campaign"...all of them leading to popular disillusionment with our system of government.
DeMuth also touches on the deeper problem: the widely held sense, which surely predates President Trump, that presidential elections endow the winner with the power to enact a mandate through unilateral action. To this we can couple what Utah senator Mike Lee succinctly noted in National Review:
Whatever the merits of same-sex marriage, Common Core, amnesty for illegal immigrants, forcing Catholic nuns to buy contraception, or requiring high schools to open their girls' bathrooms to teenage boys, the fact that all of these things recently became federal policy without ever receiving a vote in Congress represents a huge threat to American self-government.
Presidential majorities and the activist regulatory state now produce consequences that should raise grave doubts about the wisdom of trusting in presidential elections to establish boundaries on political power. Presidential power is concentrated institutional power. Voter power is dispersed individual power. The latter cannot seriously be expected to restrain the former directly. Restraining the institution of the federal executive would require a countervailing institution empowered to do so.
And that means that what we require is a recovery of a more genuine republicanism. Institutions can counteract institutions, and majorities can counteract majorities, so for our system to be kept in balance it must be home to a contest among different institutions elected by different majorities.
Seeing this point requires a recalibration of the very idea of majority rule in our politics. But we are surely not devoid of resources to help us do that. We should reflect with Willmoore Kendall that "[T]he issue is not whether the American system is or is not 'democratic,' but which of two competing definitions of 'democracy' — that which equates it with government by the 'deliberate sense' of the people, acting through their elected representatives, and that which equates it with direct majority rule and equality — should prevail."
To understand the meaning of this challenge to the contemporary practice of our national politics, moreover, we must also recover a theoretical defense of the American practice of liberty achieved through the separation of the order of culture and the order of the state. This defense would incorporate the full scope of our legal and political tradition, noting the centrality of its foundations and the sense it makes of the human person, while also depending on political compromise that is itself predicated on a deeper set of agreements about the American constitutional order. In this light, the task of those who wish to preserve and vindicate our constitutional order is clear. They must show that the constitutional consensus that should rule our republic differs mightily from the ideals of presidential majorities as they have been articulated by an intellectual clerisy — an elite that has long been divorced from the actual majorities that exist in real communities.
That constitutional consensus cannot be a function of an approach to representation that is based on the election of a single person to an executive position. It requires an approach based on the election of many representatives who stand in for the key components of our polity and the assembly of those representatives into a single political body that forces those components into deliberation. This requires the formation of majorities within an elected deliberative body. And that means that the kind of majority rule our republic requires will place an emphasis on Congress.
Contemporary political science takes for granted that the idea of deliberation in politics is a naïve fantasy. The very existence of interests, let alone their self-evident power over our politics, means that what happens in politics is not deliberation but a contest among factions, each vying to win the support of largely ignorant voters for measures that will enrich or empower itself.
Such cynicism carries an aura of sophistication. But it simply fails to grapple with the actual meaning of deliberation. So what does it mean to deliberate? In his magisterial book on our constitutional tradition, We Hold These Truths, John Courtney Murray recalled Thomas Gilby's observation that "Civilization is formed by men locked together in argument." Institutions designed to lock representatives into argument need not ignore the play of factions and interests. On the contrary, these institutions can be a means of channeling factional conflict, along with ideological differences, into some kind of constructive engagement.
Murray identifies four substantive components that shape our political deliberations: human dignity; constitutionalism as a political sovereignty that is delegated by the people and limited by law; self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions; and the constitutional consensus that serves as the basis for rational argument and the compromises that it forges. That much of this struggle is about interests and resources doesn't render moot the process of bringing various factions into contact with each other. And the institutional structure of that engagement means that the result is real politics, not a cynical game of power and money.
This is the deep background that enables "the deliberate sense of the community" effectuated by our republican institutions to be reasonable. Murray's position does not ignore the less-than-rational aspects that compose civilization. The "formative soil of history," society's loyalties, its "legends that go beyond the facts," are not necessarily logical, but they can serve as "vehicles of truth" — as can society's "materialisms of property and interest." All of these, Murray notes, are components of the political order. However, the form of the "civil multitude," its "distinctive bond," is based in reason, "or more exactly, that exercise of reason which is argument."
We might ask, though, argument about what exactly? Murray's answer is threefold. First, citizens argue about those matters that are for the public advantage and require public decision and governmental action.
Second, argument must also be about public affairs that fall in "decisive part" outside the scope of limited government but come to shape the public order in a more foundational sense. The quintessential example for Murray is education. Contained in that example is the notion that the contents of a political society's various modes of education are part of its broader social and political goals and are a crucial means for realizing them. Here we might briefly note that the tumultuous debate over the Common Core in recent years became so intense precisely because what amounted to national education standards had been implemented through administrative edict. It was only after the fact, upon pain of discovering strange homework lessons in their kids' backpacks, that parents forced a raucous debate on our unwilling elite in both parties. These parents knew that education shapes the country and that this particular form of education was not something they had ever given their consent to implementing.
The third element is the constitutional consensus whereby a people obtains its identity and self-knowledge and thus understands its purpose in history. The consensus is constitutional in that "its focus is the idea of law" that the people arrive at deliberatively by "reason reflecting on experience." And they become a people in the process of coming to that consensus. This is "a structure of basic knowledge...[that] occupies an established position in society and excludes opinions alien or contrary to itself." As such, it becomes the premise "of the people's action in history," which gives content to the "larger aims" of that action in domestic and foreign affairs.
This process of compromise — animated by principles while also informed by property and interests, history and legends, under a distinctive bond of reason — can be seen in its most elevated form in the arguments over the Declaration of Independence, the Constitution, the state constitutional-ratification debates, and the debate in the first Congress over the content and wording of the Bill of Rights. These debates display the willingness to compromise and the inclination toward synthesis at the core of the American constitutional tradition, and they helped achieve a constitutional consensus that could then be further debated and developed. But then within that consensus is practiced an everyday politics that partakes of this same character — if to a lesser degree.
In our time, that inclination to compromise and synthesize is terribly diminished. The challenge stalking our tradition now revolves around the resolute or ideological manner in which crucial questions are answered and which institutional mechanisms are chosen to implement the answers. Our politics is warlike, and difficult social and economic questions are seen as too significant to be settled by the deliberate sense of the community. And so they all must be settled on the field of political battle — not through the acts and words of a representative assembly but by the process of electing a unitary executive. This is not the political process envisioned by Publius. He believed in a separation of powers that would provide for deliberative government requiring the interests, identities, and loyalties of a diverse citizenry to be locked together in dry political argument.
Instead, our warlike politics is now largely focused on presidential elections, in which the victor wins the authority to enact mandates received from the voters, with a compliant Congress doing the executive's bidding. This assigns the primary power of our democracy to the wrong majority, and sets in motion the wrong kind of governing behavior.
NATIONAL AND CONGRESSIONAL MAJORITIES
In his 1960 essay "The Two Majorities," Willmoore Kendall appeals to Publius in prescribing a striking cure to these problems that is as applicable to the politics of our age as it was to Kendall's. We must, he says, try to harness the morality that arises from majorities being restrained in our system by the whole of the people through the inter-branch competitive process. It is this process that ensures that temporary or indulgent or weak majorities are weeded out. But note that Kendall, like Publius, says the majority will govern. His approach is not anti-democratic. But it grasps that majorities are formed by institutions just as institutions are formed by majorities.
Those majorities that are able to capture Congress, the executive, and the federal courts are those that turn the country in their direction, perhaps decisively reshaping it. But it is the interplay of the federal branches — an interplay of institutions — that protects minorities against having mandates shoved down their throats. A majority, even if it dominates all the elected branches of our government, will in most situations be compelled to bargain, compromise, and trade on certain policies in order to obtain its dearest policy objectives. Of course, narrow majorities among members of the Supreme Court or panels of regulators in executive-branch agencies now frequently act apart from this deliberative process — the former by insisting that controversial accounts of unenumerated rights are to receive constitutional sanction, the latter by enacting rules outside the established process for implementing federal statutes. Kendall's republicanism opposes itself to both.
To rebut modern political-science orthodoxy and its emphasis on the anti-democratic Constitution, Kendall underscores that the aims of the Philadelphia Convention of 1787 were not to act against the principle of majority will, but to build a republican order that would be governed by the people through deliberation and compromise. We might walk in the framers' shoes, Kendall urges, and consider the immense problems they faced: schism within the country under the Articles of Confederation and the threat of breakaway states; mob rule in certain states that violated minority rights; and general crises of currency inflation and debt that threatened to strangle the American political order in its infancy. Holding the country together in those circumstances was an urgent problem. And, as Kendall shows, Publius did not respond by making war on problematic majority rule in the name of preserving elitist, oligarchic principles.
The framers' aversion was not to majority rule as such, for surely they understood that in a republic the majority will have its way. Their aversion was to any manner of majority rule that encouraged division and oppression. Their hope was to find ways of forming majorities that encouraged restraint and forced the government to be responsive to the whole public. Thus the separation of powers, the federal government of enumerated powers, the equality of representation of the states in the U.S. Senate, the electoral college, the states' power to set rules over voting and district maps for the House of Representatives — these are some of the most vital ways in which the Constitution tries to form majority rule into the "deliberate sense of the people" such that majorities are ultimately engaged, shaped, limited, and informed by the whole of the represented public.
Thinking of deliberation in this way brings us to the diverse and extended republic of Federalist No. 10, with its clashing interests that challenge, or are supposed to challenge, unjust majorities by exposing their weaknesses or restraining their excesses. At the least, Kendall argued in a 1965 essay on "The Civil Rights Movement and the Coming Constitutional Crisis," those seeking drastic constitutional change are compelled by the oblique logic of Federalist No. 10 to wait in the "ante-room" before they are "sanctioned either by a constitutional amendment or by consensus among the three branches." Our constitutional structure makes it difficult to reshape the vast commercial republic that is America.
Another way of making this point, Kendall notes, is through the argument in Federalist No. 64, which concerns itself with the requirement of the Senate to provide a two-thirds concurrence to ratify any international treaty. Publius argues that the "good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole."
Even though Kendall was writing in 1960 about "The Two Majorities" — meaning the clashing representations of the two political branches of the federal government — he limns core political truths that connect with our self-government problem today. He had taken up his pen in response to the position advanced by the legendary scholar Robert Dahl, who argued in his 1956 book, Preface to Democratic Theory, that the only legitimate majority is the presidential majority. That national majority expresses itself in quadrennial presidential elections that grant the winners a national mandate to make policy. But is there such a thing as a national majority, one that encompasses the country coast-to-coast, somehow above or at least apart from the "structured communities" of legislative districts and states represented in Congress? Kendall wonders what type of majority Dahl has in mind.
To be sure, says Kendall, a presidential majority does rise above parochial or more limited points of view found within many congressional districts on spending, immigration, foreign policy, trade, entitlements, and other issues. These political communities are often bounded and insular, which means that, when arguments about national policy are made, they become arguments about something concrete and particular that is refracted through existing communities with various interests. The appeals made to a national majority necessarily exist apart from actual communities. We might ask if such a thing as a national community can even properly exist — let alone an identifiable majority within it — or if what really emerges is a sense of how things should be ideally. Then the question becomes, of course, whose ideals shall prevail?
And it turns out that the constitutional inversion we now experience may be intended to answer that question above all, and to answer it in favor of elites at the expense of the public as a whole. The arguments made on behalf of the national community partake, Kendall observes, of ideals that have been formed by faculty opinion and the more cosmopolitan sectors of society, and then amplified by media organs. Such appeals are then applied and reduced to rules by those certified within the regulatory agencies. The president and the regulators in the federal bureaucracy are not in the position of congressional representatives, who are beset with arguments, interests, and prejudices of many varieties as they go about representing a particular place. Apparently the unlearned senators and representatives need to be educated by the national majority — or, what is really the same in Kendall's conception, elite opinion.
Considered from the perspective of the represented, though, how does one speak to a national constituency of the size, diversity, and complexity of America? Kendall observes that in the situation of a domineering presidential politics, the country must subscribe to the platitudes, maxims, and general statements of a candidate. The appeal is made to high-sounding principles that provide authority to the newly elected president either to pursue "mandate" politics fitting with the idealistic tenor of the campaign that was waged, or else to wage campaigns for public support once already in office.
We argue, it seems, about nothing in particular and everything in general. Presidential majorities, because they understand themselves to already represent the will of the whole, do not point in the direction of deliberation and therefore of compromise and moderation. And so we find ourselves with a politics of executive rule and administrative fiat. The presidential majority, left to itself, is hardly capable of doing otherwise or better.
REAL MAJORITY RULE
If congressional majorities could, in principle, be better governing majorities, they don't now seem to know it. Congressional elections are taken to involve far lower stakes than presidential races, and are often understood as merely responsive to presidential politics — a public statement of approval or (more commonly) disapproval of the chief executive. That means far fewer people show up to vote when only Congress is on the ballot.
The surest means to achieve a better way for the majority to govern is to recover congressional elections that are about something — shaped by communities of people who can argue with one another and make choices among themselves regarding what they are prepared to favor, tolerate, or oppose. And congressional elections should not be placed in the shadow of the president or thought of as mere "off-year elections" when the presidential contest is not on the ballot. They are pivotal: They involve choosing a person who will represent the community and be accordingly authorized to deliberate on its behalf.
These elections, Kendall notes, are the surest bridge we still have to the founders' Constitution. Thus, congressional elections sometimes still turn not only on policies or vague promises but on fitness of character. The judgment of character made by voters as to who should represent them is the unstated basis of our institutions' capacity to perform their constitutional functions. It is virtue that our system requires in order to fulfill its constitutional end.
Such arguments might sound idealistic or naïve, but the point of a congressional election should be to ensure that the person chosen to represent a district is able to engage prudently and justly in rational debate on behalf of those he represents, regardless of the policy being debated. Choosing such a person is best done within local political communities where qualities, traits, and reputations can be judged in a candid, regular manner.
The choice of a member of Congress is by its nature less dramatic and more insular than the choice of a president. But the election of an entire Congress is as momentous as any presidential election.
THE DELIBERATE SENSE
Of course, Kendall did not lack for a sense of realism. And he understood that, since the case for rule by presidential majorities was essentially a case for elite rule, it would be very difficult to overcome. He didn't invent the term "fly-over country," but he might as well have. Only Congress could be capable of really representing a public broader than its bickering elites.
But this could happen only if the institutions elected by the two majorities understood themselves as existing inherently in tension with one another. A Congress that understands its own role as secondary and subservient to that of the president — especially when the president is of the same political party as the congressional majority — can hardly play this role.
A Congress that gives way to the president fails to represent the majority that elected it by failing to perform the functions of a legislature. It's no wonder, then, that the public has such little faith in Congress and in our institutions of government more generally. And it's no wonder that both parties seem unable to offer any remedies to that shortage of confidence.
Neither party, at this point, is asking the basic questions that will be required to recover our proper constitutional balance. Rather than asking only what policies should be pursued, we should inquire also what type of country we will become and whose principles will dominate it through majority rule. Rather than a commanding president and a managerial Congress, we need a debate over what Kendall called the "destiny and perfection of America and of mankind." And this, he added, ultimately amounts to a contest "between American conservatives and American liberalism" at its deepest level.
The only real hope for a constitutional recovery in the near term is that some meaningful portion of the conservatives in Congress come to see this point in light of the peculiar circumstances in which they now find themselves, and so come to identify their interests with those of their institution — and of the majority that chose them.