“Oh Say Can You C?” Compromise, Consensus, Consent, and the Constitution
The perpetual republic has long been a holy grail—or, for those less optimistically inclined, a favorite utopia—of Western political philosophy. No regime in human history has successfully escaped the Polybian cycle of degeneration and regeneration, destruction and rebirth, constant evolution from better to worse and (hopefully) back again. Machiavelli outlined one method for contending with this seemingly inevitable outcome of “Fortune,” involving the willful, violent stamping of artificial order on a naturally formless human experience. In his Discourses on Livy, Machiavelli argued for the necessity of periodic return to a political society’s origins—always violent ones in his examples—in order to maintain this order and keep chaotic fortune at bay.
The American democratic republic is the latest and perhaps greatest effort to arrest the tragic clockwork of political history. One need look no further than the first state constitutions to see that early Americans were consciously engaged in this effort. The 1780 Massachusetts Constitution, for example, states that “A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government.” The Articles of Confederation were explicitly intended to be a charter of “perpetual Union,” a Union that was made “more perfect” by the Constitution. The American founding generation was not only attempting to form a new government; they were trying to inaugurate a “novus ordo seclorum” that would actually free “mankind” from the vicious, and invariably violent, Polybian cycle of regimes. They didn’t fool themselves into thinking they were at a Fukuyaman “end of history,” but they were, in a very real sense, trying to bring about the end of history through their own Herculean efforts.
Three recent books—Jay Cost’s Democracy or Republic? The People and Constitution, Yuval Levin’s American Covenant: How The Constitution Unified Our Nation—And Could Again, and Dennis Hale and Marc Landy’s Keeping the Republic: A Defense of American Constitutionalism—provide vigorous attempts to inspire a “recurrence to the fundamental principles of the constitution” that the authors view as particularly needed in our time. All of these authors see a purely democratic regime surfacing on the horizon that threatens to displace the republican regime created by the Founders, and all see themselves as engaged in the common task of “keeping the republic,” as Dennis Hale and Marc Landy put it explicitly in their title. The American republic is essentially connected in each account to the Constitution.
Jay Cost’s book is a concise primer directed to a broad, non-academic audience. Yuval Levin’s is, in some ways, an expanded and elevated version of Cost’s book, still highly readable but pitched to a more educated audience and argued with additional layers of nuance and complexity. Hale and Landy’s book is the academic edition in the series, including an extensive political theoretical apparatus and the kinds of detailed discussions of primary interest to scholars of American political thought and history. There are substantial variations among these three books, but they are all variations on a few central themes.
The American Constitution and the American constitution
The most pervasive of these themes is the ambiguity of the central term that dominates all three. Some version of the word “Constitution” is in the subtitle of each book: The People and the Constitution (Cost), How the Constitution Unified Our Nation—And Could Again (Levin), and A Defense of American Constitutionalism (Hale and Landy). Each author means by this term the document produced by the Philadelphia Convention of 1787 and subsequently ratified by the people of the states in their respective conventions—the “capital C” Constitution.
Each of them, however, also reaches far beyond the Constitution to discussions of what we might call the “small c” American constitution: the “regime” in a comprehensive sense, including popular opinions, culture, habits, educational formation, moral character, and other dimensions of Tocquevillian “mores.” Levin, for example, explicitly claims that “the Constitution is more than a document . . . It is the essence of the American regime.” Apart from its existence as words on a page, the Constitution “decisively shapes the political ethos of our society and the character and dispositions of the American people.” Cost’s book contains a chapter called “Constitutional Virtue” in which he asks whether “we as a people possess the correct virtues necessary for the democratic republic built by the framers?” Hale and Landy affirm that “the Constitution as it emerged from the convention created a particular kind of political regime” which requires “a particular way of thinking about politics.” The “bedrock” of this regime is civic virtue, despite the fact that “The terms ‘education,’ ‘morality,’ and ‘civic virtue’ do not appear in the Constitution itself.”
It is uncontroversial and incontrovertible to claim that the proper functioning of the American political system as envisioned by the Framers relies on certain cultural prerequisites. What is controvertible, and what I would in fact venture to controvert, is that these prerequisites are primarily derivative from or dependent upon the Constitution itself. Levin provides the most extreme and self-conscious example of this claim, as in the quotation provided above in which the Constitution is identified with “the essence of the American regime.” In the book’s conclusion, Levin provides additional explanation for this identification by rightly pointing out that “institutional structure shapes political culture.” There is a strategic element to his presentation as well:
Institutions and culture shape each other, but institutions are much more readily changeable, and so it makes sense to begin to approach deep cultural problems by considering what institutional reforms might be of use and work from there.
Hale and Landy similarly connect Constitutional text and structure with constitutional culture, stating that “the Framers had a theory about American citizenship, one that was consistent with the nature of the constitutional order about to come into being.” Carrying further this rather strange way of putting the Constitutional cart before the (small c) constitutional horse—as if the Framers developed a theory about citizenship in anticipation of its coherence with a future constitutional order that they had yet to create—Hale and Landy also claim that “citizenship must begin in the towns, cities, and states, where, by constitutional design, most of the governing would take place.” The Constitution, of course, says nothing about “towns” or “cities,” and although it does profoundly affect the status of “states,” the Constitution found state government already in place when it was drafted and ratified.
Levin, Hale, and Landy recognize—quite rightly, in my view—the importance of local government in the American political system. Local government in the US does not, however, owe its existence to the Constitution. It preceded the Constitution in the British North American colonies by a century and a half. Local government is emphatically a part of the small c American constitution and conspicuously not a part of the capital C American Constitution.
This is only the most egregious example of a sleight of hand that is common to both Levin’s and Hale and Landy’s books. Both books take frequent liberties with the ambiguity and permeability between elements of political culture that exist independently of any written constitution, and that written constitution itself. This is not to deny the truth of Levin’s statement of the reciprocal influence of institutions and culture; it is only to insist upon the difference between the two. The conflation of Constitutionalism and constitutionalism magnifies the importance of the Constitution itself, transforming a single law—however fundamental—into the very “spirit of the laws,” to borrow a phrase from Montesquieu. Hale and Landy say as much, claiming that “the Constitution is more than the sum of its parts. It embodies a certain spirit.” Most of Levin’s book, and much of Hale and Landy’s, has to do not with the American Constitution but with the multitude of psychological, cultural, habitual, moral, and intellectual prerequisites that make up the American constitution in the sense of a “regime.” Both books provide illuminating discussions of these prerequisites, but both would have better served their readers by clarifying the subject of these discussions and their relationship to the written Constitution itself.
Consensus, Compromise, and Consent
The principle of consent is the core connective tissue between the Declaration of Independence and the Constitution. Consent does not appear explicitly in the Constitution, but it is clearly present in the Preamble. Consent is how a government derives its legitimate powers from natural rights–possessing individuals. Consent is, surprisingly, nearly absent from Cost’s and Levin’s books, not even meriting an index entry in either book. Levin does provide a brief discussion of the idea of “certain basic rights” in connection with the fact that “consent is the root of the government’s legitimacy,” but this is only in passing because, in his view, these ideas are taken for granted by almost all Americans.
The conceptual hero of Cost’s book is not consent but “consensus.” Consensus is also closely connected in Cost’s account to another “c” word: “compromise.” Levin similarly emphasizes compromise alongside “consensus government.” Both Cost and Levin portray the Constitution’s purpose as fostering compromise for the purpose of empowering large, stable majorities (“consensus government”) and protecting minorities.
This may indeed be a desirable political goal, and Levin elaborates this goal in particularly clear and eloquent ways. There is little evidence, however, that the Constitution’s authors were thinking about consensus or compromise in their writing and subsequent defense of the Constitution. Neither word appears in the Constitution itself, and neither plays a prominent role in any of the Federalist Papers. “Compromise” does make an appearance in Federalist 37, but there it is cast in a rather negative light as compelling convention delegates to “sacrifice theoretical propriety to the force of extraneous considerations.” “Compromise” also appears in Federalist 62, where it is used with a similarly negative connotation: “The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion.” Far from believing compromise to be the goal of the Constitutional system, Madison uses the term only to bemoan its presence in the Convention. By interpreting the Constitution as fundamentally concerned with either consensus or compromise, both Cost and Levin appear to be engaged in anachronistic reinterpretation of the Founding.
There may, of course, be good practical reasons for this reinterpretation. As in the case of the ambiguity over small c and capital C constitutionalism, however, neither Cost nor Levin makes it clear to their readers that that is what they are doing. Levin gives the impression that compromise (or the closely related “accommodation”) was a political principle of the founders on par with liberty or equality. Cost gives this impression with respect to consensus. Both concepts are different from but related to consent—a principle the founders did, in fact, explicitly embrace.
The founders believed in the principle of consent because they believed in the concept of natural (or “unalienable”) rights. It is because individuals possess natural rights to life, liberty, and the pursuit of happiness that government can only derive its just powers from the consent of the governed. This is the idea of “limited government.” None of the three books treats the notion of natural rights lying at the conceptual foundation of consent as particularly important. In Hale and Landy’s book, the most academic of the three, the natural rights mentioned in the Declaration are conflated with the civil rights in the Bill of Rights. Hale and Landy describe Constitutional rights such as “free speech,” “freedom of the press,” and “the right to ‘keep and bear arms’” as “unalienable” rights. This is a simple misunderstanding of the meaning of the term “unalienable.” This term does not mean “that we cannot be deprived of them without suffering an act of theft,” as Hale and Landy put it; it means, rather, that we cannot be deprived of them without ceasing to be human (and therefore that we simply cannot be deprived of them, full stop). The primary meaning of “unalienable” is not that the object in question cannot be taken away, but that it cannot be given up.
This mistaken understanding highlights the impropriety of Levin’s explicit decision (and presumably Cost’s implicit decision) to take natural rights philosophy for granted. It is true that most people don’t deny the truth of the Declaration and its principles, but that is not because they understand and affirm those principles; it is because they don’t understand them.
Slavery, Race, and the Civil War
By far the most surprising aspect of this triad of defenses of the Constitution is their near complete silence regarding the Civil War, as well as its causes in the institution of race-based slavery. This seems to be due to the overtly patriotic goals of each book. Hale and Landy’s book generally steers clear of overt patriotism, though its aims are clear from its subtitle (A Defense of American Constitutionalism). Their book does include a dedicated discussion, however brief, of the anti-slavery critique of the Constitution. Cost’s book ends by proclaiming the American system of government “a true marvel, a historic achievement, and a continued blessing for generations of citizens of the United States, a nation on the verge of its 250th year as a democratic republic.” Levin’s final sentence avoids this mathematical error (the Declaration of Independence was adopted more than a decade before the Constitution, which established the US as a “democratic republic”), but asserts in similarly ringing patriotic tones that “we should be profoundly grateful for the glorious fact that we all get to be Americans together.”
Of course, it goes without saying that many millions of Americans throughout our history—black Americans who were enslaved, as well as many of their descendants who have been profoundly affected by the long-term consequences of race-based slavery—have had very good reason not to be grateful for this fact. But even if the authors of these books and their readers would chide someone for expressing this view today, the historical impact of racial differences and the disparate views of the Constitution relating to these differences should have led these authors to more forthrightly and thoroughly address the issue in their books.
Cost’s book comes closest to adequately addressing the issue of race in American history by stating that “The Constitution undoubtedly was, in its origins, a racist document. It legitimized the continued enslavement of African Americans.” Though one might argue with Cost’s endorsement of the idea that the Constitution “legitimized” enslavement or that it was a “racist document,” Cost goes on to provide a fair and nuanced statement of this counternarrative. He concludes this discussion with what sounds like his reason why slavery and race don’t warrant a more pervasive presence throughout a book on the Constitution: “That the framers were originally racist does not alter how we should evaluate the Constitution today.” Because African Americans have since been legally included within the political life of the Constitution, in other words, slavery and race have become a historical footnote of little relevance to the ongoing life of the republic.
Whether Cost is right about this is a topic of debate. If Cost is right, that would explain why Levin, and even Hale and Landy, devote so little attention to this issue in their accounts—though perhaps not excuse them from doing so. What is less a topic of debate is the importance of the Civil War in the life of the American Constitution. The Civil War is mentioned only a few times in each book. For Hale and Landy, the Civil War merits only a two-paragraph discussion. This is for two reasons: 1) the Civil War was allegedly only about slavery, not federalism; and 2) “the victory of the North was very clearly a victory for the Constitution.” On this account, the Civil War was a successful defense of the Constitution rather than a crisis of it.
Levin devotes even less space to the topic in his book, though one of the few mentions of the Civil War does suggest that he recognizes its profound impact on American Constitutionalism. In his chapter on federalism, Levin says:
The partial resolution of that question [whether the fundamental truth that all human beings are equal could be embraced by only some states and scorned by others] in the Civil War led to a recalibration of the relations between the states and the national government, which was the most significant of all the changes our Constitution has undergone in its history.
Especially given this recognition, it is difficult to understand the subtitle of Levin’s book—How the Constitution Unified Our Nation—And Could Again—as well as the minimal role the Civil War and the issues that brought it about in the first half of the nineteenth-century play in Levin’s discussion of the Constitution. How can the Constitution be argued to serve as “a framework for union and for solidarity” if it could only be preserved by the deaths of more than 600,000 Americans in a civil war? Did the Civil War essentially change the Constitution? If the “new birth of freedom” was really new, what was its relationship to the old? There are many plausible ways of trying to answer these and related questions; in the absence of such attempted answers, however, Levin’s reader is left wondering whether they present significant difficulties for his account of the Constitution’s promise.
Congressional Responsibility and Reform
Another common point of emphasis among these three books is the call for Congress to better fulfill its Constitutional purpose. In Hale and Landy’s book, this comes primarily in the chapter titled “Reform in the Constitutional Grain.” This concept of the “constitutional grain” is a very helpful one. As Hale and Landy describe it, “working with the grain of the Constitution is a way to deal with the problems of modern life that comports with our deepest political principles, with the way in which the constitutional regime was meant to operate—and the way citizens expect it to operate.” The concept of the “constitutional grain” allows for flexibility in interpreting and applying the Constitutional text while acknowledging the existence of meaningful Constitutional principles and purposes. It is a more commonsensical and metaphorically rich way of expressing what has also been described in legal theory as “living originalism” (see, for example, Jack Balkin’s Living Originalism).
In this chapter on possibilities for reform, Hale and Landy describe what they refer to as “stealth government”—“the largely invisible government of courts and administrative agencies”—and contrast this with the purpose of Congress to embody deliberative decisionmaking that is transparent and open to public scrutiny . Hale and Landy thoroughly and persuasively argue that many of the policy reforms of the New Deal and Great Society eras worked against rather than with the “constitutional grain,” breaking the “legitimacy barrier” that the Constitution represents. A crucial part of the solution to reinstating this legitimacy barrier and curbing “stealth government” lies, according to Hale and Landy, in a reassertion of Congress’s “duty as statutory guardian.”
Cost’s trenchant critique of judicial review is one of the highlights of his book. He makes a persuasive, if still contestable, case that the application of judicial review in American history has often involved the court “picking sides in broader national disputes that, under the logic of Madisonian constitutionalism, should have been resolved through the political process.” Cost is clear that, in his account of the Constitution as concerned primarily with consensus, “Congress is at the heart of American government” and “Congress is where Lincoln’s immortal definition of republicanism—‘government of the people, by the people, for the people’—actually takes on real meaning.” As this reference to Lincoln suggests, Cost’s description of Congress’s role in the American Constitutional system is well-supported by numerous and weighty authorities in American history. Whether or not one agrees with Cost’s interpretation of the role of consensus, he provides a clear, concise, and persuasive account of Congress’s role and responsibility within American Constitutional government.
Levin focuses similarly on the importance of Congress in realizing the promise of the Constitution. He elaborates with admirable elegance and clarity on “the unifying potential of the institution,” arguing for a distinctly Madisonian approach to understanding Congress’s role. Levin incisively identifies the recent dysfunctions of Congress and persuasively traces these dysfunctions to their causes. He explains how these dysfunctions contribute to the imbalance of the entire Constitutional system: a weaker Congress “invites aggression and hyperactivity by both presidents and courts.” Levin also helpfully elaborates on possible solutions to Congress’s dysfunctions, including the encouragement of intraparty factions, the re-empowerment of congressional committees, and the removal of television cameras from work sessions in order to allow “real bargaining and accommodation” to take place between members. This discussion is one clear example—there are others throughout the book—of where Levin is at his best: insightfully diagnosing current political maladies and offering clear, practicable remedies for them.
Each of these books presents valuable and insightful contributions to ongoing conversations about the role of the Constitution in contemporary American political life. The authors are right to worry about the specter of American disintegration and to enlist their prodigious talents in the service of meeting this threat with the peaceful power of the pen. Students of history and humanity might argue that the American democratic republic will, like all things under the sun, eventually come to an end (if it hasn’t already). If and when it does, though, the efforts of the Constitutional Framers to establish limited government on the principles of the Declaration of Independence will live on as testaments to human striving for the eternal. Each of these books offers worthwhile opportunities to reflect on how American Constitutionalism (in both its lowercase and uppercase versions) can contribute to this deeply human purpose.
Image by Michael Flippo and licensed via Adobe Stock.