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A Roadmap—If We Want It

Estimated Reading Time: 6 minutes

In the course of my work examining the original meaning of the Second Amendment, I have often had cause to sift through some of the great legal textbooks of the past. Among these, I count such efforts as A View of the Constitution of the United States of America by William Rawle, Commentaries on the Constitution of the United States by Joseph Story, and General Principles of Constitutional Law by Thomas Cooley. I have always enjoyed perusing these works, not only for their considerable explanatory value, but because, while reading them, I have gotten the unmistakable sense that their authors liked and revered their subject of choice. In our age, detailed descriptions of the Constitution are more often penned by its most aggressive critics. “Here is the system,” they say; “and here is why it shouldn’t be.” Or, even, worse: “Here is the law, and here is how my friends and I think it can be cleverly undermined.” I am happy to report that, at long last, we have an entry into the canon that fits the older, more celebratory model. That book is Yuval Levin’s American Covenant.

That Levin likes the Constitution—indeed, that he considers it to be a work of great and timeless genius—is not merely incidental to the argument he proffers. It is central to it. And yet this is no saccharine love letter. Levin believes that James Madison hit upon an extraordinarily appropriate and prescient set of rules—rules that, unlike those that would replace them, accurately account for the nature of the United States and the permanence of human nature—but he at no point allows this judgment to push him toward sentiment, boosterism, or myopia. On the contrary: Levin is worried about America, and about its Constitution. In his telling, we are unduly angry with one another, and, in almost every area of public life, we have forgotten how to use the system we were bequeathed. As a result, we are filling the presidency with men who lack the characteristics that make that office work, we are filling Congress with lawmakers who do not wish to make law, and we are fetishizing the finality of the judiciary at the expense of more democratic forms of debate. Or, to put it another way: We are not being failed by the Constitution; we are failing the Constitution.

Both practically and intellectually, this is a fraught argument to advance. Practically, it is awkward for any democratic society to accept that the people themselves are at fault. Intellectually, the charge that the people are not living up to the Constitution yields the obvious question, “Then shouldn’t we consider that Constitution to be unfit for purpose?” Levin acknowledges these problems, considers their ramifications, and then answers them in depth.

In Levin’s view, our present discontent is the product not of our constitutional order’s being intrinsically broken or hopelessly outdated, but of our having succumbed to a neither-here-nor-there arrangement that is simply incapable of making us virtuous or happy. Specifically, Levin charges that, over time, we have constructed a peculiar hybrid model of government, in which our expectations and the parties that channel them are Wilsonian in nature, but our institutions remain Madisonian. This amalgam, he suggests, does not work—and never will.

Nor, Levin argues persuasively, would giving up on our Constitution completely be likely to improve anything. Why? Well, because politics is division, and because the Madisonian system that he champions incorporates that fact into its design in a way that no other scheme can rival. It is here, in his assessment of human nature, that Levin is at his most conservative. He pushes back hard against the supposition that the political divisions that have animated Americans since the founding of the republic are shallow or fake, and that it is private corruption and architectural inertia, rather than earnest disagreement, that makes our politics fractious. Likewise, he rejects the claim that there is “a preexisting unity” in the country that is “waiting to be represented at last,” rather than “durable differences that need to be negotiated and assuaged” at all times. “An implicit premise of the Constitution,” he writes, is that “the diversity of interests and views in American society is a permanent reality” that cannot be stamped out by force or by expertise. Insofar as the Constitution is used in a manner that acknowledges that, it will work nicely.

The public is routinely presented with a peculiar bastard-child version of the Constitution that leads voters to precisely the opposite set of conclusions than the ones Levin submits.

By “used,” Levin is careful to stress that he does not solely mean by judges. Indeed, he records throughout that, while the Constitution is our highest law—and while it ought to be treated as such—its role in American life goes far beyond litigation. In this sense, Levin’s work represents an extended call for originalism in every area of our civic life. In his chapter on the courts, he acknowledges that originalism has prevailed within the judicial sphere—and that this development is salutary—but he worries that this has given those who affected that change a form of tunnel vision that has led them to focus exclusively on Article III. For the Constitution to be restored in toto, Levin insists, Americans need to understand what it is for in every area to which it applies. Accordingly, in addition to a correct understanding of the courts, they need a correct understanding of federalism, a correct understanding of the role of Congress, a correct understanding of the nature of the presidency, a correct understanding of the role of political parties, and, ultimately, a correct understanding of their rights and responsibilities as citizens. He treads lightly in this area, as is his style, but, clearly, he does not believe that enough citizens currently possess that understanding.

While he considers this regrettable, it does not necessarily surprise him. As a matter of fact, he notes that James Madison himself possessed “a kind of middle of view of the virtues of his fellow citizens,” which led him to conclude that there “was no escape from self-interest and ambition” but that “Americans, nonetheless, did take freedom, equality, and personal honor seriously.” On this, he and I agree. But I suspect that we differ a little in our estimation of how likely to come to fruition the restoration he seeks really is. I agree with basically everything Levin says. I agree with his description of where we are. I agree with the premise of his broader case: That the Constitution is the roadmap to renewal. And I agree with him on most of the particulars. With the exception of his briefly offered view that “Congress alone is empowered to decide” “how much of the federalist compromise of the Constitution should be abandoned”—I see no limiting principle there and would like to learn more about what he means—I am, in almost every way, a Levinite. Were he a sorcerer, able to instill his view of the Constitution into the hearts of the American people, I would happily acquiesce to the endeavor. Ultimately, though, I am not as optimistic as he is.

This is not dispositional. Like Levin, I am a flag-waving immigrant who, on balance, tends toward gratitude and buoyancy. Rather, it is because I seem to worry more than he does about two key drivers of constitutional illiteracy that Levin does not meaningfully address: the media, and the schools. Levin begins his book with the observation that people shape constitutions, and, in turn, constitutions return the favor and shape the people. This is correct, and there is no doubt in my mind that this process has kept America freer and better governed than any other democracy over the last 250 years. Nevertheless, that shaping process is only as good as the people doing the shaping, and it seems clear to me that the vast majority of our mediating institutions have decided in recent decades to promulgate a version of the US Constitution that simply does not exist. Were Levin’s vision to be the norm in our newspapers and universities, I’d expect to see a revival in two decades flat. Instead, the public is routinely presented with a peculiar bastard-child version of the document that leads voters to precisely the opposite set of conclusions than the ones Levin submits. That ersatz Constitution has Wilsonian assumptions about the role of each branch—but only when a Democrat is in charge; it is almost entirely driven by outcomes, rather than processes; and it allows no room for the sort of informed nuance that serves as a prerequisite to the proper understanding of our system. That being so, I would add a step to Levin’s plan. First, we must transform our elite culture; then, once the people have been given a fair chance to learn about the structure under which they live, we must prevail upon them to live up to their patrimony.

But that, ultimately, is a nitpick. Levin is an intellectual, not a sorcerer or a politician, and it is his job to describe the world as he sees it, irrespective of the political niceties. At this, he excels, and in a style that is unusual for our cynical, partisan age. Back in the 1780s and 1790s, during the debates over the ratification of the Constitution and the Bill of Rights, James Madison liked to write letters to figures whom he believed had characterized his handiwork particularly well. One such missive, written to Tench Coxe in 1789, thanked him for his “explanatory strictures” on the first ten amendments, and suggested that the prospects for ratification were “indebted to the co-operation of your pen.” That I can imagine Madison sending an updated version of these words to Yuval Levin speaks volumes about the scale of his achievement.

We have a roadmap—if we want it.

*****

This article was published by Law & Liberty and is reproduced with permission.

Image Credit: Wikimedia Commons

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