Podcast | Can the Constitution Serve as a Document of National Unity?

Podcast | Can the Constitution Serve as a Document of National Unity?

AEI’s Yuval Levin, author of “American Covenant: How the Constitution Unified Our Nation—and Could Again,” and Aziz Rana, professor at Boston College Law and author of The “Constitutional Bind: How Americans Came to Idolize a Document That Fails Them,” join Jeffrey Rosen for a discussion about whether the Constitution has failed us or can serve as a document of national unity.

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[Music] Hello friends I'm Jeffrey Rosen President and CEO of the national Constitution Center and welcome to We The People a weekly show of Constitutional debate the national Constitution Center is a nonpartisan Nonprofit chartered by Congress to Increase awareness and understanding of The Constitution among the American People in this episode I'm delighted to Share a conversation with two leading Scholars about whether or not the Constitution can serve as document of National Unity yval Levan is the author Of American Covenant how the Constitution unified our nation and Could again which was just released on June 11th and Aziz Rana is author of the Constitutional bind how Americans came To idolize a document that fails them Which came out on April 16th enjoy the Show thank you so much for joining us Hubal leban and Aziz R the thesis of Each of your superb books is well Encapsulated in the subtitle youa your Book American Covenant how the Constitution unifies our nation and Could again is one which I so admire I've had the honor of reading it it's Such a powerful argument for the Constitution as a madisonian document of National Unity tell us how the Constitution was designed to unify our

Nation and how it could again well thank You very much Jeff and thanks to the Constitution Center for bringing us Together uh it's an honor really also to Be in this conversation with Aziz whose Wonderful book everybody should read I I Learned a huge amount of of history and Uh and and legal thought from it um my Book begins really from the sense we Have that we are living in a divided Moment in a moment when Americans feel As though we're turned against each Other um and uh our our politics is Polarized our culture wars are intense And among the consequences of that sense Is I think also a view that the Constitution is not serving us well and Certainly there is some truth to that View our system now is in a moment when It frustrates us and when we think about What could be changed I think it's Important for us to grasp the ways in Which the Constitution is working and Not working in this moment and to my Mind that requires us to understand its Purposes to understand its structures Its design the ways in which it lives up To those purposes and ideas in the ways In which it does not um ultimately the Book does Point toward political reform But I think to reform we have to think About what we're trying to achieve and How that might be done and when you Begin to look at the structure of the

Constitution at the origins of it at the Intention of its framers and at its History one thing you find is that the Cause of unity and cohesion is very Central um it mattered a lot to the Framers of the document it was a Constant subject of discussion at the Constitutional Convention Unity or Union In one way or another is the subject of The first third or so of The Federalist Papers and you say it's madisonian I Think that's exactly right James Madison In a way stands out in our political Tradition for worrying about cohesion And unity um a tradition that's defined On the One Hand by a kind of concern for Uh political order and dynamism on the Other Maybe by a concern for social Justice uh and equality Madison is not Really quite in either camp at least at The time of the framing of the Constitution he's someone who worries About faction who worries about division Who worries about disunion in a very Distinct way and Madison of course is by No means the sole author of The Constitution very far from it he Actually lost most of the important Votes in the convention but his emphasis On that point is very Central to the way The Constitution goes about its work the The the first stated purpose of the Document is to form a more perfect union And I think that there's also a distinct

Idea of what Unity can mean in a diverse Society um that we can learn from the Constitution from its uh from its design And from its history an idea of unity That is I think more achievable for us Now and also more useful for us now that Sees Unity not as uh thinking alike but As acting together that is rooted in a In an active sense of the political that I think is itself rooted in classical Philosophy um and that doesn't imagine That what it would take for our society To be unified is unanimity um or broad Agreement on the fundamentals but rather That we can become more unified by Working through our differences through Negotiation through accommodation Through competition uh the the the very Ways in which we fight in politics can Bring us together if they're structured In the right way and engage us in a Common purpose in a common Mission um There are some very important ways in Which the constit goes about that that We can learn from now there are also Ways in which its institutions are Failing now and we should talk about Those where I think repair would require Some acquaintance with the purposes of The Constitution but repair certainly is Required thank you so much for that not Thinking alike but acting together is Such a powerful way of putting the goal Of the Constitution as a document of

National Unity thanks for setting up the Thesis so well aiz R in your wonderful Book which I learned so much from it's Such a Rich cultural intellectual and Legal history uh you argue in your Subtitled that Americans came to idolize A document that fails them and you set Out a it's really a great narrative History of the critiques of Constitutionalism over the years but in Your introduction you Introduce three clear institutional Pathologies that you argue feed off each Other the existing order makes it Difficult for today's multi-racial and Urban majority coalition to implement Widly backed policies then there's the Existing order disempowering minorities Empowers Rules by a minority Coalition And third the great 20th century work Around is the rise of the modern Presidency tell us about your critique Of uh constitutionalism and how you Believe that it is failing us thanks so Much so first Jeff thank you for that Wonderful introduction and everybody at The national Constitution Center for Including me in this event and um and You've all As well it's wonderful to to Share the this discussion with you that I also learned a ton from your book it's Really terrific and I urge folks to read It and engage with it um so you know I Think honestly the critiques of the

Constitution at this point are probably Pretty familiar from just reading the Opinion pages of the New York Times or The Washington Post and so maybe I can Just say a little bit quickly about what Those critiques are and then talk a bit About the relationship I see between the Federal Constitution and the question of Social cohes So the first thing to say is that you Know there many examples around the World of how to combine Constitutionalism and democracy and the US is one of these examples now all of These different systems are still Ultimately organized around a basic Principle which is the principle of one Person one vote in large societies that Are plural and diverse like the us or we Can think of many other countries Elsewhere there's also this sense that You you have to have respect for Differences across various kinds of Regional ethnocultural racial religious Divides and so you can't just have a Simple system of majoritarianism there Have to be some sets checks and balances Including ideas of federalism as well The problem in the US is that the types Of checks or constraints the counter Majoritarian checks and constraints are Incredibly extreme they're far more Extreme than comparable constitutional Democracies elsewhere in a way that

Really inhibits that underlying value of One person one vote what it does is it Makes it very hard for organized Majorities to influence policy but it's Not like that it just sort of limits or Delays policy at the same time it also Mobilizes and facilitates rule by Particular empowered minorities and over Time this is the third element the the The kind of classic adaptation that Americans have developed system of Presidentialism is subject to all of the Problems associated with presidentialism Elsewhere where you might have Presidentialism combined with win or Take all systems where you can't call New elections and this generates Paralysis if you don't actually find Compromise and that can lead to more Aggressive forms of presidential Authority that in fact end up Strengthening the kind of authoritarian Strains within presidential systems but Not addressing deep-seated underlying Problems and as just one example example Of how majorities are thwarted very Particular minorities are strengthened In ways that end up inhibiting a kind of Rich or Democratic life we can think of The role of the Supreme Court so in the US it's incredibly hard to amend the Constitution we have a constitutional System that is perhaps the hardest in The world to amend and at the same time

You have a small Supreme Court nine Folks serving for life in an Appointments process that's organized Around a specific unit in fact of Representation in the US is organized Around the unit of the state so Geography rather than a principle of of Representation based on one person one Vote again and what this has done is It's created a setting in which you Could have a president that loses the Popular vote so seven of the last eight Presidential elections the popular votes Been won by democrats but then you have Republicans that end up serving as the President and then through control of The Senate that is deeply malapportioned So 70% of the population is now Increasing in just 15 of the states then Be able to control the court so you have A super majority of conservatives on the Court six to3 and in fact Trump alone Was able to nominate and confirm despite Losing the popular vote three justices To the Supreme Court where all Republican all excuse me Democrats since 1968 have only been able to nominate and Confirm five total there hasn't been a Democrat that's been the Chief Justice Of the Supreme Court since 1946 and because you can't amend the Constitution it drives like a funnel Political and constitutional decision- Making into a court that has extensive

Power that can operate generationally in Ways that are deeply inconsistent with Where the public sort of would want uh Constitutional politics to proceed now I See all of this as tied to certain Tendencies within the Constitution that Actually run counter to the goal of Social cohesion and maybe this is Something we can get into which is the Classic story is that the Constitutional System because of the ways in which it Divides and negotiates power allows us To economize on virtue it's a system not Made for angels as you know Madison Would have said but I actually think an Assessment of American History Highlights the extent to which for our Constitutional system to operate Effectively it in fact needs a huge Amount of background social cohesion and Indeed the historical period periods in Which something like the compromise and Unity that that You' all is discussing Were actually operative in American Life Were very particular periods the early 19th century the mid 20th century where For distinct reasons the society r large Was able to Marshall the type of Background social cohesion and agreement That allowed A system that doesn't Really work to Foster consens uh Cohesion to operate effectively my my Theory instead is that really what the Constitutional system does is it

Incentivizes various kinds of turns Towards minority Rule and tit fortat Defection that we're in fact dealing With at the present and so it's really Vital for us to think about well how is It that the constitution operates in Practice rather than to idealize a kind Of framing vision from the 18th century And imagine that that's going to be Instructive for how to address things Today Thank you so much for that uh powerful Critique of constitutionalism on both uh Today and throughout history let's um Take the argument through each Historical era because both of your Books do such a great job in describing The critiques and responses to to Constitutionalism that history you've All perhaps the Progressive Era is the Time to start our critique you describe How Progressive intellectuals and Politicians led by Herbert crley at the New Republic and and politicians like Theer Roosevelt and woodro Wilson Criticized the separation of powers Federalism and checks on majoritarianism And embraced a kind of populist Presidentialism that undermined the Framers design tell us about the Critique and and and your response to it Well sure I think maybe a way into that Is to start from uh from aziz's Excellent summary of the case makes I I

I think there's a way in which um the The underlying concern for justice That's expressed in the Constitution um is a search for a Balance between majority rule and Minority rights and the US Constitution Certainly stands out for its concern About the potential for majority abuses Of power um and for that reason although It is premised in the notion that only Majority rule uh can legitimate Political action it also worries a lot About abuses of majority rule and Therefore requires majorities to grow to Broaden before they are empowered and The American system therefore does make Political action very difficult it Prioritizes Coalition building over Effective efficient policy action and in That sense it prioritizes Coalition Building over representation sometimes As well there's no question that it is It does not make pure representation It's absolute good no system does as as Z says but the the American system Stands out for requiring Coalition Building before meaningful action can Occur in our system and that requirement Is very frustrating particularly for Relatively narrow majorities in our System the system doesn't really Empower Narrow majorities in the way that some Of the European parliamentary systems That we can talk about um do um that

Kind of frustration the sense that we Just can't get get our government to Move um and to respond to changes in the World and to respond to changes in Public views that frustration goes well Beyond uh in our history well before the Progressive Era it's a frustration that Was felt almost immediately um in the Constitutional system but it absolutely Reached a a a peak in the late 19th Century America where there was a sense That as the economy was Industrializing um as life became more Complex as uh the nation was growing and Becoming a world power in some ways um The American system of government was Lagging behind the needs of the Society um industrialization created Tremendous political pressures all over The developing World in that time um They were much more extreme in some ways In Europe and put tremendous pressure on The European systems um they also uh put Enormous pressure on the American system Government that system did hold together But it was forced to respond to uh the The the growing complexity of of modern American life and that demand took the Form over time of a an emerging Progressive Movement progressivism is Many things and I think it would be a Mistake to say that there's one simple Set of ideas in the in the middle and Late 19th century that we would call

Progressivism um it was in some ways a Movement of of urban reform it was a Move movement for uh transparency and a Kind of journalistic movement for Bringing to light the realities of Capitalism in 19th century America um But over time it took it it it gained The form of a movement for political Reform especially at the national level To better enable effective and Responsive government um and it was in This sense very much a movement of Frustration with the American Constitution um you begin to see this in The work of Scholars and journalists at The end of the 19th century woodro Wilson before he was a politician was Really one of the great political Scientists of the 19th century in America and very much a scholar of the Problems with the American Constitutional system um and he had in Mind a model of a more responsive and More efficient kind of governing system That responded more directly to public Views um that sought to enable the System uh to use elections as moments of Change uh to put questions before the Public and empower the answer that was Chosen by the majority that's not crazy That's how most democracies Work It Generally hadn't been and hasn't been How the American system has worked in The American system when you win an

Election generally what you win is a Seat at the table at a negotiating table Rather than all the power in the system Um and Wilson and others and they took Different forms in different in Different facets of progressivism made a Very strong case that was very Persuasive to a lot of Americans Amer an For the need for constitutional changes And for political reforms um that would Overcome the rigidity uh and Unresponsiveness of the American Constitution and that rigidity and Unresponsiveness was understood both in Terms of of democracy um and in terms of Efficient and effective Policymaking uh and the the argument for These changes I think has had a lot to Do with some of the changing character Of the American constitutional system um It was it was a dominant political force By the beginning of the 20th century and A critique that in a lot of ways of Course is very much still with us Too many thanks for that account Aziz You have also a nuanced and and Powerful Account of the Progressive and socialist Critiques uh at the end of the 19th Century early 20th century that focused On the Constitution's anti-democratic Elements arguing for more direct popular Control over governance um what is your Account of what led to the progressive Critique seeking adaptability through

Presidential leadership the influence of Other movements including women's Suffrage and whether or not you think That the Progressive Era critiques were Well-founded yeah so I think the first Thing to say is just to Echo something That you've all already mentioned which Is the variety and Multiplicity of critiques and Perspectives during that period and so I Just want to note maybe upfront that at The very least you can see two different Strands that sometimes work together but Sometimes are really at loggerheads Among critics of the constitution in the Late 19th throughly 20th century and one Kind of argument is the one that you've All has been emphasizing and it's Associated with Wilson I should say I'm Not a fan of Wilson at all and this is a Claim that the problem is a lack of Energy and so that you don't have Energetic and effective governance a Second kind of argument was really an Argument that the system facilitated Minority rule so it's not the a question Of how active or inactive government was Whether or not it you know produced Agreement it was that in fact it Actually mobilizes a form of power but It's power of those that are already Deeply entrenched the thought here is That the just how fragmented the vote Was in the US meant that the one tool

That Mo most poor and working people had The power of the vote was deeply Li as An effective mechanism for decision Making and that various kinds of racial And socioeconomic Elites were able to Use that fragment fragmentation to have Their own interests met one way of Thinking about this question of the Problem being minority rule rather than Efficiency these different orientations Is to take an example from the present So in 2020 uh Mitch McConnell is you Know majority leader in the Senate and Ginsburg has died it's also we're right About to have a presidential election in My view if you have a functional Constitutional system in the leadup to a Presidential election you precisely want A system that incentivizes Reaching Across the aisle to deal with large Scale social problems and in that Context would have been the covid Pandemic and in fact you want a system That incentivizes addressing that so That you can have benefits at election Time but what is it that McConnell does Instead McConnell really focuses in the Context of ginsburg's death on adding a New Justice to the Republican majority On the Supreme Court because of the Sense that well you have these Minoritarian Instruments that can lock in policy for Generations to come and that it's

Actually more important in a deep way to Have control of the bench rather than to Legislate policy those are the Incentives that kind of facilitate a Logic of minority rule through the con Stitutional system and if you just think About it take a step back in many Constitutional systems this would be a Strange thing to think that it's more Important in election season with a Massive pandemic to lock in the court Rather than to deal with legislation and That was a kind of argument that was Sort of being promoted during the Progressive period because the Background setting was that the country Was facing all these so socioeconomic Problems that were a product of mass Industrialization you had States like The state of New York that were passing Labor legislation sometimes with near Unanimity and that you had the federal Courts that judges serving for life that Essentially were rejecting those Policies and that it was very hard in The context of the existing uh Legislative system to be able to have Clear National Resolutions and what ended up happening During this period is that there were a Variety of solutions to these problems Now the Solutions I tend to support are The ones that have become commonplace Globally when it when we think of

Constitutional democracies so having Much longer constitutions that make it Easier to to amend so that you have more Expansive rights not just negative Rights but positive socioeconomic rights Reforms to the bench so that you have Term limits for judges in the federal Court globally most judges serve for Somewhere between 9 and 15 years much Larger um federal courts India's Supreme Court has 34 Germany's has 16 shifts to The nature of representation in the House so you might have proportional Representation through ideas of Multi-member districts that span urban And rural settings alterations to the Structure of the Senate an elimination Of um The Electoral College so these Were elements to try to maintain a System of checks and balances but to Push back against the problem of Minority rule what ended up happening Instead was essentially the wilsonian Solution that you've all described which Is adaptation through presidentialism in Which the president becomes sort of the Repository of representation and then is Closely associated with the public RIT Large and more and more lawmaking gets Sucked out of the legislative branch Which both of us agree as like the Central branch and moves into Essentially an executive Apparatus this ultimately in my view has

Been very effective for asserting National Security power and for in many Ways asserting a kind of discretionary And oftentimes coercive rights abusing Authority but it has not been effective For bridging um agreement across Difference or for legislating over the Course of the long term and in a way I Think some of the problems of the Present are combination of problems from The founding period limitations of that Founding Vision which honestly people in The late 18 Century you can't expect Them to have solutions for the 21st Century combined with the limitations of The choices made during the Progressive Period that were good for organizing Presidential power consolidating the Power of the state not good for Distributing power as a matter of Popular Authority and containing the Minority power of socioeconomic and Racial Elites it's really striking that That both of you are not fans of woodro Wilson are agreeing that some of the Progressive Era reforms consolidating Executive Authority and undermining Congress undermine the ability to form Pluralistic agreement and deliberation And then yet I think you disagree about The solutions um you've all G give us Your sense of what the evolution of the The president and Congress post Wilson Were how it undermined the Constitution

As an agent of deliberation and and why You think Congress could with proper Reforms resurrect its purpose at a a Deliberate body and engine of national Union yeah let me let me maybe stress a Couple of points of agreement with what AA said in and a couple of points of Disagreement and and describe the the And answer your question in that way I I Don't think that I would describe the Tendency of our system to impose veto Points uh and restraints on majority Action exactly as minority rule I think Minority rule gives the impression that Minorities are able to act in ways that Majorities are not when the the Frustration with our system is often That no one can act when we have only Narrow majorities the system has Exceedingly High uh thresholds for Action it requires broad durable Majorities across a set of Institutions And that does make it difficult to act Assertively um and what it allows Minorities to do very often is Block Action by particularly by narrow Majorities although majorities don't Like to think of themselves as narrow And so we might say there are Constraints on majority rule um that Empower minorities to prevent action I Very much agree with the that the the Flow of power toward both the court and The

Presidency um has thrown the system out Of balance in some important ways that Certainly do begin to border on minority Rule especially when it comes to the Court I think the Supreme Court is much Too powerful in our system that it has Been much too powerful for a long time Um and that in our time a lot of the Reason for that and also for the Excessive power of the presidency is the Weakness of Congress I would argue that The core problem we now face in our System rather than the structure of the System empowering minorities is that We've created for ourselves a set of Incentives that have disempowered Congress which is the core democratic uh Institution in our system and which is Meant ultimately to set the direction of The system and to represent the the the Public's will um the Constitution puts Congress first not by coincidence and Not in a subtle way the Constitution Defines the power the powers of the Federal government as powers of congress Um it could easily have been written in A way that defined the powers of the National government and then describes The three branches but that's not how it Works all of the powers are actually Articulated within the systems Definition of the Congress the Legislature is clearly meant to be the Foremost branch of our government and

The place where ultimately policy Direction is set um that's valuable to The cause of building some national Cohesion because the way the Congress Works is through negotiation Accommodation uh bargaining deal making It is a plural institution which is what It takes to represent a diverse Society Um I think the chief problem that we Confront now is the weakness and in many Ways the willful weak weakness of the Congress and that what's required is a Kind of rebalancing of the system that Would call for changing incentives uh The incentives that confront members now Drive them to willfully give up power They could assert much more power than They do a lot of the power that is now Redirected to both the courts and the Executive uh could be reasserted by Congress if the members chose to do that And they don't and I think that there's Not enough of an awareness by Americans Who care about politics and worry about The health of our system there's not Enough of an awareness of how much of The problem is rooted in the peculiar Weakness of the Congress and I certainly Agree that that is a problem that the Framers were not prepared to deal with The the the ways in which you find the Framers of the Constitution writing About power and writing about the Institutions all assume that everyone in

The system will want as much power as They can possibly have Congress today Doesn't want the power it has um what it Wants is a different kind of role Members describe it as an oversight role I think you might even describe it as a Performative role as as a as a a a Prominent place in the theater of our Politics rather than as legislative work That drives the direction of public Policy at the national level in America And I think in thinking about how to Strengthen the system we we do have to Think about how to strengthen Congress The weakness of Congress is a function Of a long historical Trajectory um and I I certainly agree With the E that it begins but as a Transfer of power to the presidency out Of a sense that presidents were just Much more able to act than Congress was Um the emergence of the various Administrative Agencies uh came out of a of a kind of Power struggle between the branches There was sometimes a way to empower the President there was sometimes a way to Weaken the president but I do think that We now confront a system out of balance And the question for us is what's the Balance we seek is it something like the Original uh conception of the system in Which Congress is Central and bargaining And accommodation is what happens at the

Core of our government or is it a a System more modeled on on the forms of Some other democracies around the world Where there is more direct democracy There is more direct action but there is Also a greater danger uh of abuses of Power by majority I think it's a Perfectly legitimate question but Putting the question that way is an Essential first step and I think the way That Aziz raises his concerns is a very Constructive way to get there because it Does I think quite rightly reject the Wilsonian view that ultimately what's Missing is simply efficiency um Wilson Wasn't that simple but that what's Missing is efficiency um I think is the Wrong way to think about what's wrong With our government we need to think About our government in terms of how it Can fa facilitate the life of a of of a Democratic Republic how it can advance Those causes that are listed in the Preamble how it can advance Union Yes But also Justice uh and also the welfare Of the public these are the kinds of Balances our system has to strike it's Not a simple matter but I think to see These as the goal is the beginning of Thinking about constitutional change and Political Reform aiz do you see uh the goals that Youva identifies and ascribes to the Frame

As the right ones you've all argued that Congress should function as an arena of Contention Coalition building and Integration he proposes specific reforms For reinvigorating the frame Congress Including strengthening committees we Weakening leadership removing TV cameras And encouraging cross partisan Negotiating Um are these persuasive to you or do you Prefer looking to other uh non-american Systems as ways of uh protecting Minority rights and uh empowering Democracy yeah so you Know my own view is that I I certainly Think there's a value in Reading The Federalist Papers just like I think There's a value in reading montue and Reading L rouso and you know various Sources of deep engagement with Constitutional questions at the same Time I think that there's a real value In reading some of the people that I Discuss in in my book like de Bo's color And democracy from 45 or black Reconstruction on how to think of Addressing issues of white Authoritarianism and moving toward a Very different kind of constitutional Democracy or figures like Harry Haywood On how to reconceive um the black the Black belt or alen Benson Socialist Party on how to think about the Constitution his book is called uh the

Dishonest Constitution at a level of generality The value of the framers to me is the Fact that they're working through basic Principles of constitutionalism and I'm Also a Constitutionalist the problem that I Have is that there's a culture that's Been built around the framers that in my View this is the argument that I make in The book is really a 20th century Product of how the US came to explain Itself to the world against the backdrop Of global decolonization Rising American Global power and then over time how it Came to understand its own internal Reform projects then that is you know It's like very different actually than The world of the framers and has this Effect of collapsing constitutionalism Little CA Constitutionalism with the specifics and Details of this big sea Federal Constitution now the Federal Constitution is not the source of all American Problems but I do think that it's played A substantial role in producing Precisely the kind of disunity that You've is concerned with and I'd even Say that you know for example when when Talking about the fragmentation of the Vote one of the things that that Fragmentation does is that it allows

Other resources money connections Influence you know established and Entrenched hierarchies to then play an Outsized role in decision-making because It's not like no decisions end up coming Out of our governing system there are Actual outputs these outputs though Oftentimes end up privileging those that Already have power and authority and in A way the problem RIT large of the Constitutional system is again that Actually it requires a huge amount of Background social cohesion to work if You think again about the early 19th Century so like why is it that the System more or less is able to get off The ground it's because if you think of The us as a land mass a massive land Mass that has many diverse and plural Populations that are subject to American Power indigenous peoples enslaved black People women euroamerican settlers it's Only a thin strand of those folks that Are actually participating in political Decision-making and the thing that's Actually cohering the society is that They have a shared project of Territorial settlement of the Expropriation of indigenous land so as To be able to ensure internal economic Independence in some parts of the Country through the use of coerced Enslaved black labor that's a very Particular type of society and it's a

Very small stratum that are able to make Decisions and so it's not surprising That despite all of these fractures you Have agreement across Difference similarly in a way in the mid 20th century like why is it that the Constitutional system basically works It's because you've had a massive and Very successful labor movement you know 1945 a quarter of the workforce was Unionized and that that labor movement Ends up giving massive super majorities That are able to overcome all of these Veto points to the New Deal and to FDR So in 1936 80% of those elected to Congress in both h both houses were uh Were supportive of FDR's agenda so They're able to create something like a Limited but still extensive social Welfare state and then the EXP Experience of both World War II and the Cold War create existential enemies that Lead Center left and center right to Kind of rally around a politics of Agreement that extends all the way Through the great legislative victories Of the civil rights movement in 64 and 65 this 30-year period is really unusual In American history and it's a product Of background social conditions that can Overcome the problems of the existing Constitutional order and so today I Think in a way what we're stuck with is A system that looks a lot more like what

The Constitutional order consisted in With the rise of slavery is Central Political disagreement for the mid 18th Century all the way through to the New Deal which is a a framework that is not Effective actually at producing Agreement across difference and that Requires really extensive and Democratic Improvements to function effectively and It's like one last point about the Administrative state My own view about strengthening Congress Does not mean jettisoning the Administrative State these two things Have to work together so I'm a strong Believer in the administrative State's Ability to work handin glove with Popular majorities and effective Legislative power to address social Problems in many ways I do think that There are problems of the administrative State tied to its turn to kind of uh Technocratic Authority it's disconnect From publics but there have been a Variety of different kinds of Experimental ideas about how to infuse The administrative state with with Greater deliberative and popular Authority including tripartite Arrangements that incorporate business And labor and sort of establishing Various kinds of policies and that Strengthening Congress returning to Something that's a more coherent

Democratic system is not going to be Achieved by gutting the essentially like The statecraft and the apparatus that we Have for making good on the types of Policy solutions that have historically Been the basis of cohering the public Jee can I say a few things I I I think First of all I I certainly would not Make an argument rooted in the framers Out of authority in any way I think we Should only listen to the framers if They persuade us um if if what they Argue about the problems we Face Mak Some sense as a way to think about those Problems there are areas where that's The case and areas where it is not and Looking to the framers uh is not Something we ought to do because they're Old or because they're they're James Madison but because they have something To say to us we should only do that as Long as that's the case I also think That it it's it's too easy for us to Look at past eras and think of them as Simpler than our own I think Americans In the early 19th century did not Understand themselves as a unified People and there were some extremely Intense disputes regionalism was much More intense uh as a source of division Than it is now there was talk of Secession in in the early 1800s uh and of course they were at the Beginnings of an intense dispute that

Ultimately led to Civil War I think also That in the uh in the 1930s to the 1960s That era did not feel to people who Lived through it as a quiet time there Was much more political violence in America then than there is now there Were extremely intense divisions over Questions that demanded the attention of The entire nation questions of Fundamental Justice uh questions of uh Involving economic change and economic Crisis and so those were difficult times In their own ways and I think it's worth Our seeing that uh it is possible for Our system to facilitate ways through Times of difficulty it's not simply the Case that it only works when there Aren't big problems to worry about it Can also work when there are provided we Understand something of what it is we're Trying to achieve and how and there you Know I I I I certainly agree that we Need Administration in the modern world Um we we couldn't have an 18th Century Government governing a 21st century Nation but that's not what we do have And I I I think an administrative state That was more accountable to a Congress That was actually more interested in Legislating would certainly be a far Better way to govern our society than The one we confront now to me it's not About more or less bigger and smaller It's about the character of the

Governance we have a a Congress that Really did its job would still require Administrative agency gencies to carry Them out I mean there's just no way for A modern government to do without them And I don't think that we should imagine Otherwise but what we expect of the Administrative agencies now is Impossible we expect them to do the work Of legislating and the work of Administering and we expect them to do It in a way that satisfies this very Diverse country with very intense Divisions and I don't think that's Achievable and the reason that we ask The impossible of them is it seems to me That Congress will not do its job so That to me the the the the focus of Political reform really does have to be On Congress and that is the place where Changes in the rules changes in the Structure of the institution an Expansion of the house which uh has been Which we've failed to do now for a Hundred years and which I think of as a Kind of constitutional maintenance that Is absolutely necessary for our Democracy to work these kinds of changes Would stand a chance of really allowing Us to recover some balance in the system And seeing if it can work for us today As it stands now I I I don't think the System we have at the moment is what the American constitutional system is meant

To be and therefore I don't really see It as a test of whether that system can Work for us or not we have to begin by Helping it work and I think reforms of Congress are also actually achievable They only require a majority of Congress Um that's where a lot of my work over The last 10 years has been focused for That reason there has to be some Intersection between what would be Useful and what could be done Um and those are both challenges to Define thank you so much for that aiz in Your last chapter you were critical of The Court focused rise of Originalism uh as well as institutional Reforms of the kind that you've all Suggest and instead call for a Transformative constitutional politics That would shift discourse away from Legal Elites and from the courts and Back The political Arena tell us more about The vision of that you have in mind so The argument that I make is that it's Really telling that originalism as a Cultural Force gets off the ground in The 1970s because in some way like it'd be Much harder to be an originalist in Earlier periods in American life so like The Socialists for instance in the late 19th early 20th century are kind of Originalist they're very interested in

Madison and Hamilton but they see these Figures as socioeconomic Elites that saw The primary threat to rights as threats From majorities to property rights and That's what they ended up focusing on And this is like the Charles beard Argument and Charles beard the historian Goes through an analysis of the Particular class position whether or not We agree with the the details of that Analysis today that kind of reads as a Type of Originalism and even you know at various Points in time you have different judges Or commentators that say the best way to Think about the Constitution's meaning Is by looking to what the framers may Have intended or what the original Public meaning of the text might have Been at a specific moment in time this Was an argument made for instance Against Brown versus Board of Education In the 1950s in the National Review so The argument from you know from Kilpatrick who was a close Ally of Buckley and a strong defender of Segregation was that you know Brown Versus Board of Education was not Originalist it's only after the Successes effectively of the civil Rights movement and a cultural Transformation in the status of the Framers in other words somebody like Madison goes from being an enslaver so

He's a person that is an enslaver that Is committed to a system of government That's organized around the interests of A very small number of euroamerican male Settlers so he goes from that kind of a Person in the late 18th early 19th Century with all the you know the pluses As well about like the thinking of of Federalism and checks and balances to a Figure by the 70s who is most closely Associated with an anti-totalitarian Bill of Rights a rights Charter that's Really a product of the mid 20th century Not of the late 18th early 19th and Because of the argument that the Constitution is understood essentially Through the successes of the Civil Rights Movement as as a you know as an Embodiment of the Declaration of Independence that it's a fedal document That he gets the kind of reflected Glory Of folks like Frederick Douglas and uh Martin Luther King people who in a deep Sense he was profoundly politically Opposed to if I were to do that in Acronis game and it's at that moment When you have a broader cultural Recovery of the framers and you have a Desire for a type of restoration with The growing conservatism of American Life that arguments about originalism Can really get off the ground because You have a broader swath of the public That's willing to say oh you know

Everybody across the Spectrum seems to Like these framers so conservative legal Interlocutors can be like well if you Like the framers let's go back to what They may have intended or what their Their words may have meant at the Specific moment now as an actual Methodology originalism is really deeply Over and under determined like there's a Huge amount of intellectual critique Based on the thought that it's very hard If you're focusing on intentions to Figure out the intentions of a Group um if you're focused on public Meaning and you have small bits of text That text can be incredibly vague and so It's really hard to pin down what the Text would imply for 20th and 21st Century Problems but it's no doubt the case that A cultural context that thinks the best Way to solve problems is by making Analysis on the basis of what somebody In 1788 or 1868 might have thought is an Approach that is more consistent with a Kind of traditionalist conservatism and Is more inconsistent effectively with a Forward-looking brand of politics that Seeks to shift things in the future and This is one of the reasons among many Others that I think a huge problem in American Life Is that constitutionalism has become

Essentially the domain of legal experts And courts and what judges think should Be the relevant reform conversation is Effectively the terms by which we end up Having conversations about the big Questions race economy National Security Foreign policy what this means is that We've effectively as a public turned Over the great debates about National Values National meaning constitutional Identity constitutional structure to a Small range of State Elites whose Interests and commitments might be Wildly distinct from the rest of ours And it's why I actually think that Figuring out ways to expand where Constitutional politics takes place Including by revitalizing the amendment Process including actually by doing Things that we don't even associate with Constitutionalism strengthening Intermediate institutions like parties And and unions and churches as sites for Organizing public sentiment and for Building the kind of coalitional Commitments that you've all is is Connected to this is the way to go in The future so that our constitutional Memory and our constitutional Discussions aren't dictated by really in My view at this point desiccated debates About whether or not the Constitution Should be living or Originalist thank you so much for that

You've all you discuss the birth of Originalism in the 70s as an Intellectual agenda a set of arguments Developed by legal Scholars like Robert Bin and Scalia Lauren Silverman and Others tell us about your views about Why originalism arose the current debate Among conservatives about uh what form Of originalism to adopt and whether or Not it's consistent with your vision of The Constitution as a document of National Union yeah thank you it's very Interesting I mean I I I would say well First of all I I very much agree that The revitalization of our kind of middle Institution is actually an essential uh Element of of constitutional renewal and Including the parties including unions Including uh religious institutions and Others I I I I think the ironic thing is The the emergence of originalism has to Do with a kind of concern that is Connected to the one that aiz Articulates um originalism emerges out Of a sense that judges are too strong And that their strength is rooted in in Their being Unbound by written law um And that judges in a sense had begun to Make uh to make policy uh at at at their Own discretion by interpreting the Constitution and the laws in accordance With their own uh subjective views and Originalism is a search for some kind of Of NE of reasonably objective criteria

That would guide judges in making in in Interpreting the meaning of the Constittution tion and the laws um it is Explicitly to begin with uh rooted in an Acknowledgment that this is an imperfect Criteria that it is better than Subjective decision-making by judges but That it can never be uh in in any sense Absolutely objective or the ideal way to Resolve problems it's a kind of Substitute for a traditional Understanding of the role of the judge Rooted in the nature of the common law Rooted in the place of the judge in the The anglo-american tradition uh a Substitute made necessary by judicial Excess in the first half of the 20th Century judicial excess by the way that Pulled in both directions that at first Resisted Progressive economic policy and Then advanced in some respects Progressive social policy um but in both Cases involved a kind of judicial Invention of the of the meaning of the Law and what you find in the early Originalist thinkers is that they are Focused on judges and they're focused on Restraining judges originalism is not a Comprehensive constitutional Vision at Least to begin with it is really about The role of the judge and it looks to Restrain the role of the judge and some Of the early originalists Uh the uh later chief justice ranquist

When he is writing as a legal scholar Before he becomes a judge uh makes Explicit the argument that the purpose Of originalism is actually to open the Space for the American system to enable Congress and the president to do their Jobs uh and not have that space be Filled by judges um to begin with Originalism is a a theory of judicial Restraint and I would say that over time Originalism has come to be more of a Comprehensive constitutional Vision Rooted in a sense that the constitution Has a certain character the judges have A role in advancing that char character Um and of course we've seen in recent Years as originalist judges have come to Be a majority in the Supreme Court that In the hands of some originalists Originalism is even a philosophy of Judicial activism um and I think that That is ultimately inconsistent and Incoherent in relation to the original Aims of of originalism I think that one More thing it's important also to see That originalists look to the original Meaning of the law or the Constitution When they were written so it's not just About James Madison it's the original Meaning of the 14th Amendment too which In a lot of ways corrected James Madison In essential and necessary ways it's About the original meaning of the laws Uh and not just of the

Constitution obviously there is a Problem that arises when the meaning of The law is not clear is not obvious Those are the cases that matter most the Hardest cases ultimately are the most Consequential and the most controversial And the question of what an originalist Judge should do when the meaning of the Law whether it is the intention of its Authors or the public meaning at the Time it was written is not clear is a Question that's divided originalist for A long time and that's created I think Several waves of a kind of uh resistance To originalism on the right among legal Scholars resistance to the sense that Originalism can simply be purely Objective in hard cases there are those On the right that say judges have to Make decisions based on a a on the one Hand a philosophy of individual rights Rooted in the opening of The Declaration Of Independence you hear that from People like Randy Barnett and others or On the other hand from a kind of Classical legal tradition um rooted Really in in the tradition of uh of Christian natural law that you hear now From people like Adrien verule and Others um I think both of those are Rooted in in frustration with Originalism that is understandable but That ultimately they point in directions That are not themselves rooted in our

Legal and constitutional tradition and I Think that in the cases where Originalist minded judges find Themselves confronted with a an incity In the text itself they should look to The logic of the Constitutional system In which they play a role and to my mind That especially means that they lean in The direction of empowering the Legislature they lean in the direction Of republicanism and therefore in the Direction of judicial restraint which is What originalism was at its root um These are these are complicated debates Within the right and there's certainly a Lot of tension now on the right even Though you might say originalism as Triumphed there's an a kind of Originalist majority on the Supreme Court there is also at the same time Intense debate on the right about the Role of the judge and about the nature Of judicial interpretation I think what We require and what I argue in the book Is that we require a broader Constitutional Vision than just a Question of the role of the judge we Focus too much on judges we give too Much interpretive power to lawyers when We think about the Constitution the Constitution is not just a lawyers tool It's also for Citizens it's for Legislators uh it's for administrators To think about and interpret and put

Into practice too and ironically Originalism arose as a way of Restraining judges but for a lot of of People on the right as I am originalism Became a way of thinking only about Judges when we think about the Constitution and I think that is a Serious Mistake you all so well sums up the Debates among conservatives about Originalism and the shift from to a kind Of focus exclusively on the courts Aziz You too in your final chapter say that You you agree with you V's point that we Need a broader constitutional Vision Than focusing on judges and legal Elites But of course you reach very different Conclusions about what a uh mobilized Constitutional politics might look like Last word to you asiz in this great Conversation share uh if you would your Vision of what revived constitutional Politics outside the courts might look Like yeah thanks so much and and thank You you all for the discussion this has Been really fun so you know as a jumping Off point I I'm deeply skeptical of the Argument that originalism as a mode of Restraint and even sort of looking to Embedded structural features within the Constitutional system can be Pro-democracy and the reason why is that If we agree effectively that Congress The legislative branch is deeply

Dysfunctional I'd say what it does is it Ends up promoting various kinds of Minority Rule and at the same time you Have a an amendment process that is that You cannot use there's a reason why Debates about fundamental values for Instance Reproductive Rights and Abortion have gone into the courts Because other systems around the world When you have super majorities that back A particular right they can just add Language to the text we have a Constitutional system in which you Cannot do that right now for instance There is a super majority that supports Reproductive Rights in a functional Democracy this would already actually be Amended to be part of the Constitution If you require passing through a Legislative branch and then some kind of National referenda as many countries do Or there would be a federal law but Because of the particularities of all of The overweening extreme forms of counter Majoritarianism none of that persists And so as a result the courts end up Playing this oversized role when it Comes to questions of basic rights and Imagining that oh you can solve this Problem through just a story about Restraint or what the framers may have Intended or what the original public Meaning was including through the the The structure of the system I think is

Like deeply inadequate to the broad Problems and what it ends up doing is it Prioritizes a minority view in this case Let's say Reproductive Rights the Anti-abortion position is an incredibly Minority view within the US and yet it Ends up winning so what does that mean For the future going forward I think What the US really requires is mass Popular Mobilization around the question of how To reconceive our Democratic Institutions and how to tie them to the Basic problems that we as a a society Face and you can imagine that through a Whole host of reforms to the rules of The game so that the system itself is More compatible or consistent with what A broad public might want that it Facilitates the kind of pluralism and Agreement that you've all support and at The same time I think this would go hand Inand with changes to the legislative Structure so reforms to the Senate Electoral College again the courts the House of Representatives but then Thinking more generally about well what Kind of a society do we want what sets Of Rights broadly speaking do we want to Be emblazoned in a governing document What should be the principles that Undergird the exercise of foreign policy Should it be organized through Presidentialism or other kinds of um of

Frameworks um what what what should be The the underlying structures of state And economy and I think that none of These changes which broadly speaking Would combine the question of Constitutionalism With the the types of issues that affect The society at large can be addressed Without building essentially movements And constituencies that understand these As vital to their own social projects And pushing for essentially like these Vital shifts that would make something Like equal and effective Freedom Operative for Everybody thank you so much youve all Le And aiz R for just a great discussion It's such a it's so meaningful to con You both your your books uh make such Powerful arguments um and reach Different conclusions uh but this is a Model for thoughtful engaged dialogue About the core meaning of the Constitution uh as a document of National Unity congrats to both of you On your books and you all 11 and aiz ROV Thank you so much for joining thank you Thanks so much to both of You today's episode was produced by Lana Ol Samson Master Shar and Bill Pollock Was engineered by Dave STS and Bill Pollock research was provided by Samson Mesar Cooper Smith and Yara de please Recommend the show to friends colleagues

Or anyone anywhere who's eager for a Weekly dose of constitutional Illumination conversation and debate Sign up for the newsletter at Constitutioncenter.org Connect and always remember that the National Constitution Center is a Private nonprofit despite that grand and Inspiring Congressional Charter we Receive little federal funds and we rely The generosity of people from across the Country who are inspired by our Nonpartisan mission of constitutional Education and debate if you like recent Podcast show your support by giving any Amount $5 $10 or more become a member at Constitutioncenter.org Membership or give a donation at Constitutioncenter.org Donate on behalf of the national Constitution Center I'm Jeffrey Rosen

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