Constitutional Tensions

The Law & Liberty Podcast

In a time of partisanship and dissention, can the Constitution provide the kind of unity we seek? Yes and no, argues AEI Senior Fellow and author Yuval Levin in his new book, American Covenant. The Constitution offers a kind of unity, but a limited one, that falls short of what many hope for. He joins host James Patterson to discuss constitutional history, our present social tensions, and what’s wrong with our institutions.

Show Notes:

• American Covenant: How the Constitution Unified Our Nation―and Could Again
• Law & Liberty symposium on Levin’s book
• “Constituting Unity,“ a Law & Liberty forum led by Levin

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Full Transcript:

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. It is Wednesday, July 10, 2024. My guest today is Dr. Yuval Levin. Dr. Levin is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute where he holds the Beth and Ravenel Curry Chair in Public Policy. The founder and editor of National Affairs, he is also a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at the New York Times. At AEI, Dr. Levin and scholars in the Social, Cultural, and Constitutional Studies research division study the foundations of self-government and the future of law regulation and constitutionalism.

Dr. Levin served as a member of the White House domestic policy staff under George H. W. Bush. He was also executive director of the President’s Council on Bioethics and a congressional staffer at member committee and leadership levels. He is the author of several books on political theory and public policy most recently American Covenant: How The Constitution Unified Our Nation and Could Again on Basic Books that recently came out. This book will be the subject of our podcast today, Dr. Levin, thank you so much for being on the Law & Liberty Podcast.

Yuval Levin:

Thank you very much for having me.

James Patterson:

So I have to admit that reading this book gave me an overwhelming amount of nostalgia. I have right here, I believe on page 157, Daniel DiSalvo and Robert Saldin on a page. Those were people I went to graduate school with.

Yuval Levin:

Oh wow. Okay.

James Patterson:

So I was reading … Jim Ceaser is in there. So it was like being back in Charlottesville back in the 2000s. So the thing about the book I want to start with though is that we see a lot of academics treat the Constitution mainly as a source of positive law or even like a raw material in order to devise their own policy outcomes. What have we really lost in that sense of treating the Constitution and what is it that you recommend we bring back?

Yuval Levin:

Yeah, thank you. In a way, these two points are connected because the book really does try to bring to bear a different kind of academic engagement with the Constitution than we now normally find. Those two relatively younger political scientists that you mentioned are very rare now. They’re students of Jim Ceaser who was also very rare, a real political scientist who nonetheless rejects the basic approach that most political scientists and legal scholars now have to the Constitution, which is, as you say, that view of the Constitution as just a means to preferred policy outcomes. This book draws on a different range of scholars. Certainly, Saldin and DiSalvo are among them, but I would say the leading lights intellectually for it are scholars like Walter Berns and Martin Diamond, Herbert Storing, Harry Jaffa in some ways, who certainly disagreed among themselves on a variety of questions, but had a view of the Constitution that was rooted in a classical sense of what constitution means, a classical sense of what a regime is and how it relates to the life of a society.

And I think what we lose when we see the Constitution purely as positive law is the sense that ultimately we as citizens and as human beings are shaped by the kind of political society we live in, and that the Constitution shapes us in a particular way in the direction of being Republican citizens, people who take ownership and responsibility for the society they live in and for their common fate as a people. And the Constitution has much more to offer us than just a legal framework. It is important as a legal framework and I do think we should see it first and foremost in that way, but it’s also a framework for political life that I think can teach us a lot about what has gone wrong in contemporary American political life, why it is that our politics seem so dysfunctional, what it would mean to reach toward a more functional way of living politically. I think the Constitution is an incredible resource for thinking politically in the broadest and deepest sense, and the book really does try to recover that sense of what it would mean to think of it that way.

James Patterson:

Yeah, in the first chapter, there’s … It concludes with a discussion of three elements of American life. Competition, negotiation, and productive tension. These run contrary to a kind of contemporary instinct. I see this a lot among my students. If they’re writing something, and they don’t quite know what the significance is, like if they need to write about The Federalist Papers or they need to write about something by Lincoln, they reach for the term unity. This seems to be something that they want to say is a good thing, and this actually leads them sometimes to overlook or maybe even discount these three things that you’ve mentioned are actually central, competition, negotiation and tension, in a way that unity actually isn’t. So this being a controversial position, defend it. Why should they not accept unity?

Yuval Levin:

There is certainly an idea of unity at the core of what I’m working to draw out of the Constitution, but it’s a very distinct idea of unity. I think of it as a Madisonian idea of unity. And it says that unity means not thinking alike but acting together. Ultimately, no political community can consist of unanimity, of people actually just having the same opinions about crucial questions. Politics is always about what divides us. It is a way of dealing with division. A society that genuinely was not divided would not need politics. And what it means to see the political as a way of dealing with disagreement is to see that unity ultimately is a way of facilitating common action. Politics is about action. It is an answer to the question what shall we do? And in pursuing an answer to that question about collective action, we necessarily have to have ways of dealing with difference.

And in a sense to say that unity means not thinking alike but acting together, you invite the question, how can it be possible to act together when we don’t think alike? I think the American constitution is in many respects an answer to that question. How can we act together when we don’t think alike? Its various institutions are meant to facilitate that. Its modes of action are meant to facilitate that. And crucial among those modes of action are these three that you described, competition, negotiation, and a kind of constructive tension. The Constitution deals with competing factions by letting them compete over and over. First and foremost maybe just through the fact of elections. The Constitution is fundamentally democratic and we do have a lot of elections in the American system. An unusual number at various levels of government. And offices are set so that they expire at different times. And somebody is always running for something, and that means that our politics is always competitive.

There’s also competition between the states and the national government. There’s competition between the houses of Congress and between the branches of the government. That kind of competition is a way to force everybody to be as appealing and as coalition-minded as they possibly can. And then of course, negotiation is how you actually build coalitions and sustain them, and negotiation is at the center of how the Constitution wants us to solve problems. That’s why Congress is the first and foremost branch of the national government. It is the venue where the representatives of different factions of American life deal with each other, negotiate bargain, and reach agreements that they can all tolerate. I think the notion of constructive tension may be the least familiar of these, but it is a characteristic way in which the Constitution resolves some of the deepest differences that were evident at the time of its creation. It takes what seems like contrasting options and says yes to both at the same time.

So should representation in Congress ultimately empower states by population or empower them equally? This was maybe the most controversial question at the Convention, and the answer the convention arrived at was, yes, we’re just going to do both. One house of Congress will be by population and the other will represent the states equally, and the tension is always going to be alive in our system as a result. Or think about the presidency, as the president’s supposed to be an elevated head of state, like a regal king, or is the president supposed to be a clerk, someone who just carries out what Congress decides? The answer is yes, the president is supposed to be both of these things even though there’s an obvious contradiction between them. That means that the office of the president contains a kind of tension that allows it to shift its weight without losing its balance in times of change.

And a lot of the stability of our system is made possible by the fact that it doesn’t seek to resolve every question. It turns the political life of our society into a project of dealing with these permanent questions all the time, and in that way keeps us from falling apart when we’re divided. It gives us ways to be divided that can be constructive of collective action.

James Patterson:

So I growing up belonged to a lot of different organizations that had formal meetings that also use things like Robert’s Rules of Order, and these kinds of techniques for administrative meetings were something that I just took for granted as experiences, but I think that’s actually a weird thing that I was doing. And so I suspect that a problem that people have with competition, negotiation, and tension is that they have very little formation in what those things are like and in the process of meeting out compromises, but also sometimes just losing. And this comes up a lot in the book where one of the causes for unity is the desire to get everything you want when you finally win.

Yuval Levin:

Yeah, absolutely. I think that what you describe is a kind of characteristic American experience, and it’s actually an example of how the Constitution shapes our national character. Tocqueville jokes in a letter to his father that if you get three Americans together, they’ll elect a treasurer. And I think there’s a lot of truth to that historically, that Americans have thought in terms of committee work. Whenever there’s something to be done, we create a committee and we follow rules of decision-making and bargaining, and we act as though we are following the rules of the Constitution even though we’re not bound by them. And I think that gives us a kind of experience in problem-solving in groups that is enormously valuable in a divided society, in a diverse society. Because working in groups is difficult. Other people are hard to deal with, other people are disagreeable, and oftentimes we need a structure, a way of dealing with differences.

I think that part of what has happened to our political culture in the last few decades is that we are engaged in much less civil society activity like that as Americans just in our own lives, and that means we have much less of the habits that are necessary for this kind of constitutional logic to make sense to us. We haven’t seen it at work quite as much. And so we tend to think that the point of political engagement is to get my way and I get my way by winning the election. If I won the election, then I’d be in charge. The American constitution actually doesn’t work that way. What you win when you win an election in our politics is you win a seat at the table and what happens at the table is committee work and negotiation and bargaining. And this isn’t how every democracy works.

A lot of the parliamentary systems in Europe, for example, in South America and Asia, work by empowering majorities. So however narrow your majority, if it’s a majority, it has all the power. It controls the government. The American system has always been more wary of majority power than that and has always forced majorities to broaden themselves before they can be empowered, to deal with minorities in order to get anything done. That does slow things down. It does put barriers in the way of efficient government. But it also requires us to build broader coalitions and to build a deeper legitimacy for public action. I think we’ve lost an appreciation for how important that is. We take that legitimacy for granted, even though our institutions are clearly losing their legitimacy in our time, and we don’t see that these mechanisms that slow us down are actually ways of making politics more tolerable in a vast and diverse democracy.

I think a lot of the critics of the Constitution today are pointing to the European systems, pointing to other kinds of democracies, and saying, “Look, they’re much more efficient. Norway and Belgium: They get things done much more easily and quickly. They’re much proportionally representative.” It seems to me that the fact that we can even compare ourselves to Norway and Belgium is an illustration of how well we are governed by the constitutional system. The United States is not like Norway and Belgium. The United States is more like India and Brazil. It is a vast, immense, diverse democracy, but it’s much better governed than India and Brazil. Our system is very well-suited to governing a vast and diverse democracy. We take it for granted. And so we think we could do better, we could be more like Belgium, and I don’t think so. I think we have to respect the ways by which we live with the fact of our immensity and our diversity, and that requires seeing why the Constitution works the way it does and helping it work better.

James Patterson:

Here in the chapter The Constituted Republic, there’s a section that I really enjoyed, especially the way that you put it, and so I just want to quote a little bit from here. If you have the book, it’s on page 74 at the bottom. The framers clearly assumed that a distinct set of virtues in the people was essential to the kind of government they were proposing. These prerequisite virtues were not of the highest kind of human excellence, but they were demanding a set of Republican commitments. So a two-part question here is I thought the founders were skeptical of morality as a backstop to things like tyranny or injustice. The second question is something that I guess is a little bit more complicated, which is what’s republicanism?

Yuval Levin:

Yeah, it’s a very important question and a very challenging question. There’s certainly a lot of truth to the fact that the framers wanted a system that did not require perfect virtue all the time because they recognized that it would be populated by human beings, and they knew, as Madison famously says, that enlightened statesmen would not always be at the helm, and that there had to be a way for the mechanisms of the system to correct for some of the failings of human nature and human character. But those same framers, Madison and Hamilton who make that point, also say, often in the very same places, that we also can’t assume the lowest things about human nature because this kind of society does require some virtue in the citizen. In fact, a republic in particular requires certain kinds of civic responsibility without which it cannot function.

And the use of the term republic in that way is I think very important for us to try to make sense of in our time. The idea of republicanism is almost lost to us now. It’s not part of our everyday political vocabulary. It describes an idea, parts of which have been overtaken by terms like liberalism and democracy, parts of which have just been lost. And it seems to me that oftentimes now in contemporary political debates when people complain about liberalism and about our having too much liberalism, I think what they’re actually saying is that we have too little republicanism. We just don’t have the words to put it that way. Republicanism is, in a sense, the political vision of a self-governing society. It focuses on taking ownership of our society’s common future. And it is all about ownership and responsibility.

That term “responsibility,” which appears a lot, especially in The Federalist Papers written by Madison, was actually not in common usage. Madison brought it into English from French. His use of it is only the second time that the Oxford English Dictionary can find the word “responsibility” in English. The purpose of it is to describe the obligations of a citizen in the American Republic. There’s a way in which responsibility simultaneously describes accountability on the one hand, holding people accountable for what they do, but on the other hand also a sense, of ownership of claiming the future and saying, “This is mine, this is ours.”

I think that sense that this country is ours, that we’re not just standing around waiting for somebody to do something, and it doesn’t just act on us as if we’re passive recipients. It is us. It belongs to us, and ultimately the problems that it has are our problems. The strengths that it has are our strengths. That habit is absolutely vital for American citizenship. The ability to speak about our country in the first person plural in terms of we and us and our is very, very important. And I think it’s more important in the American political tradition than we now tend to see. “We” is actually the first word of the Constitution. It begins by speaking on behalf of We the People. Or think of that second paragraph of the Declaration of Independence, which also begins with we, “We hold these truths to be self-evident.”

Americans speak as when we talk about our republic. And it requires a kind of republicanism to do that. And ultimately the emphasis of republicanism is on obligations, it is on citizen duties. And we don’t talk about that very much. Now, we talk about rights, which is important too in the American tradition, and rights have more to do with liberalism than republicanism, but I think a recovery of the idea of republicanism could help us to balance some of what is now missing in our political culture without throwing away anything. The need we have is not to eliminate liberalism, but to recover republicanism.

James Patterson:

That’s right. I cannot stress how much I really loved that section. That last part you just said, the answer, reminds me that we have. … There’s a few years … Actually, I guess now almost like two decades ago, the book Rights Talk by Mary Ann Glendon talks about this.

Yuval Levin:

Wonderful book.

James Patterson:

Yeah. Just incredible. Rights as trumps rather than as rights as liberty to meet communal obligations. It really does present a problem for the way people understand what the Constitution and constituted bodies are for.

Yuval Levin:

Yeah. And it gives us the wrong impression about the nature of our society because when we think about rights as purely individual protections, we are prone to think that our society encourages a kind of radical individualism. But if you actually look at our rights, look at the rights that are enshrined in the First Amendment, we think of those rights as individual rights, and they do in a sense [inaudible 00:20:55] in individuals, but none of them is actually an individual. The right to free speech is not a right to talk to yourself. It’s a right to participate through speech in the life of a community. Nobody practices religion on their own. The right to assembly is obviously not an individual right. These are all ways of participating in the life of a formative community. And the First Amendment protects those communities in a way that I don’t think we give it enough credit for.

James Patterson:

I teach at a Catholic university and some of the students are a little wobbly on the idea of a church disestablishment at the federal level. So I posed to my students if the state can get baptized for you or go to a bar mitzvah for you. And the answer’s no, that’s what makes a riot inalienable, it’s one that you can’t delegate. And so those are the kinds of rights that are not subject to disagreement. That’s one of the problems that we run into in the Constitution. So there is a reference to Belgium and Norway now in here, so the United States is now dealing with this issue in the framing of the Constitution over the nature of small versus large republicanism. Normally the way kids are taught this is big states versus small states, but there’s more to it than that. There are rival conceptions of republicanism at the framing of the Constitution, and the one that Madison, Hamilton, and the like introduced is novel and maybe not as commonly understood, right?

Yuval Levin:

That’s right. We have this kind of cliched picture of the convention as divided between the big states and the small states, Virginia, Pennsylvania, and New York, the big states, and then New Jersey and Maryland and Connecticut, and the debate is who should have the power? And so the small states want equal representation in Congress, and the big states want representation by population. There’s some truth to that when it comes to the design of the structure of the Congress, but the divisions at the convention were actually not big state versus small state. The most significant divisions actually happened within the delegations from the larger states and especially within the Virginia delegation where there were real ultimately people who became anti-federalists and who didn’t support the Constitution, like George Mason. And there was James Madison and voices that argued for a kind of centralization of power and for a large republic.

The dispute they had in a sense was about the nature of republicanism. The anti-Federalists argued that republics have to be small, that because they require civic engagement and a certain kind of citizen, and because they need to form their people in a particular way, they have to be an interpersonal community. And if they get too big, they won’t be capable of forming Republican citizens and they won’t be capable of gaining those citizens’ allegiance. This is an argument that has very deep roots in the Republican tradition all the way back to the republicanism of Rome you find these kinds of arguments, and certainly in the early Enlightenment republicanism and in Rousseau and elsewhere.

And James Madison rose to offer a different view about the problems created by the challenge of factions in a republic. Madison says there are factions in any republic of any scale, and to mitigate those factions, you can’t get rid of them, but to mitigate their effects some, it actually helps to enlarge the scale of Republican life, to make it larger so that there are more factions and therefore none are a clear majority or a permanent, durable majority. That means that all the factions have to think like minorities and have to try to be persuasive and attractive and ultimately work in a way that facilitates a kind of politics that’s rooted in negotiation and competition. A.

And that becomes an argument for a large-scale republic. A very novel argument. I wouldn’t say it’s entirely new, there are actually elements of it in Aristotle’s Politics, in Book IV of the Politics. But Madison certainly deepens and extends it and applies it to the American situation in a very novel way. That becomes quite persuasive even in the convention and allows some of the people who take republicanism most seriously at the Convention to wrap their heads around the possibility of a larger republic that will allow for some communal self-government through federalism, but will also allow for some real centralized national government on some issues. And to see that not as a betrayal of republicanism, but as a way to make it possible in a modern society.

James Patterson:

One of the major innovations Madison wants to contribute to our understanding of republicanism and The Federalist Papers is the idea of representation. Representation plays a big role in your discussion of the Constitution as well. This is a big subject, so I understand if you can’t cover everything here, but how does representation in the Constitution play such a role?

Yuval Levin:

Yeah. For Madison actually, representation is crucial to republicanism, to modern republicanism. There are places, in fact, in Federalist No. 10 for example, where he says that what distinguishes a republic from a pure democracy is that republics employ the principle of representation, which means the public does not directly make decisions. It’s not through a plebiscite that we make public policy, but rather the public elects representatives and those representatives then engage in deliberation, negotiation, and bargaining. There are things that become possible in a republic only thanks to representation. The representatives of competing factions are able to negotiate with each other in a way that the factions themselves would not be able to.

Madison is always worried about democracy becoming mobocracy, to use Lincoln’s phrase from half a century later. The idea that in a democracy you ultimately fall into mob rule. And he says famously that even if all the Athenians were like Socrates, the Athenian assembly would still have been a mob because the nature of the institution of plebiscite democracy is such that it’s just not possible to have serious conversations and deliberations and negotiations. And so you’ve got to have a smaller number of people who represent the different factions of society, but whose job it is to deal with each other. And representation makes that possible so that, ultimately for Madison, the Congress becomes the central institution of the American Republic. He says, “In any republic, the legislature is bound to have the most power.” And so the design, the structure of the legislature is enormously important for him so that it can facilitate negotiation and bargaining and allow the entire system to operate in that way.

And representation is really a way to try to turn the mass public into some kind of organized political body. That doesn’t happen on its own, it’s made possible by representative democracy.

James Patterson:

So the subject of federalism occupies a pretty central place in the book, both physically and in terms of your thinking. And honestly, it occurred to me while I was reading is that federalism has waned as an issue people talk about even among our own like milieu, but it should be probably given a bit more attention because there’s a lot more familiarity with its role in people’s everyday lives, especially after the states responded very differently to the COVID-19 regime. And as I like to point out to my students, we actually are engaging in a kind of modern nullification right now with states legalizing marijuana and the federal government essentially letting them. So what is it about federalism in the Constitution that’s so important and why has federalism always really struggled to maintain its place?

Yuval Levin:

Yeah, it’s interesting. Federalism is one of the ways that the Constitution allows for some movement in the joints of American public life. You can have some diversity of decisions, some diversity of action, different places doing different things at the same time and have some tolerance for that. And I think it’s very important to think about the structure of federalism to see why that is. We have a tendency, I do this myself sometimes, and certainly, a lot of people who think in communitarian terms about politics have a tendency to think about federalism as layered government, something like subsidiarity in Catholic social teaching.

But federalism is actually very different from that. It does not operate by layering government by saying, “First things happen at the local level. Then above that there’s a kind of oversight from the national government as it’s necessary.” Federalism actually creates parallel governing tracks. The idea is… The question they face at the convention is should the states or the national government govern the people directly? If the states do it, then the national government is something like a federation and doesn’t really govern, it just resolves common needs. If the national government does it, then the states are something like administrative districts and it’s really the national government that governs.

And ultimately the convention came to a kind of constructive tension answer here, and they said, “Yes, we’re going to let the states and the national government both govern the people directly, but with regard to different subjects.” And so when it comes to national security, as we would now call it, and foreign affairs, and when it comes to economic policy, the national government would govern directly. And in every other way, all of the police powers of government, the states would govern directly. And they don’t interfere with each other.

Now, we’ve lost a lot of this character of federalism over time because as the work of governance has become more complex in our modern society and modern economy, we’ve actually integrated state and federal governance in a lot of ways, and especially in healthcare, in welfare, in education. The states and the federal government now work together. They spend each other’s money, they implement each other’s decisions. We’ve lost a lot of the strength of federalism as a result of that. I think the original federalist compromise was extraordinarily impressive. It allowed for a huge amount of flexibility, even as it allowed the United States to benefit from the advantages of centralized government.

The big problem with the federalist compromise though was the problem of slavery. And obviously, slavery is a subject you can’t ignore when you think about American history. When you look for how did the Constitution originally deal with slavery, there are all kinds of views about this and there are people who say the framers were advocates of slavery, and of course many of them were slaveholders. There are people who say the framers were secretly anti-slavery. Abraham Lincoln makes this case. I think that what they actually did is assign slavery to the states.

The decision they made essentially was not to deal with it in the Constitution, to avoid it as much as they possibly could, and the Constitution has very little to do with slavery. But where they had to deal with it, they assigned it to the states. And they went to great lengths to do this so that even when the Constitution permits the Congress to prohibit the international slave trade 20 years after ratification, it actually does that in terms that describe it as a state issue. And ultimately the idea that slavery would be a state issue turned out to be untenable. And rightly so.

Slavery is a very fundamental question of justice, and the nation just could not live with some states allowing it and some states not. Lincoln, of course, made this case more powerfully than anybody, and ultimately it turned out to be just untenable. And it led to the Civil War. And the Civil War transformed the character of the federalist compromise. The post-Civil War amendments, the 13th, 14th, and 15th Amendments are all constraints on state power. They all restrain what the states can do by basically adding the equal protection of citizen rights to the list of things that are assigned to the national government. And so after those, federalism inevitably looked rather different than it did before.

But I think that we’ve allowed federalism to get away from the original logic of it to a much greater degree now than was required by the post-Civil War amendments. And federalism today is very confused and confounded. I think an agenda of federalism reform would have to largely be an agenda of pulling apart state and federal action and allowing them to work separately deciding what issues need to belong to the national government. Maybe there are additional ones now that have to be assigned to Washington. But if so, they should only be assigned to Washington. When the federal government and the states work together, we lose the advantages, the benefits of federalism. And those are great advantages, especially in a divided time.

James Patterson:

Once again, nostalgia for graduate school because now I feel like I’m reading Martha Derthick. So you anticipated my next question, which was, didn’t federalism reveal to be a problem given what we know from slavery and Jim Crow? So I’ll just move on to the questions about Congress now. I have been assigning your essay from Commentary on Congress since it came out, and I think there’s been a lot of other work out there that’s really proven you right, about what you’ve said. Another book that I really like is Morris Fiorina’s Unstable Majorities. And what we see with Congress for those who haven’t read your work on it, is that essentially Congress is weak because its members want it to be weak and that there’s a kind of defect in the Constitution in that the framers never suspected members of Congress wouldn’t want to do their job. So what is it that has demotivated, if that’s a word, or demobilized members of Congress that way?

Yuval Levin:

Yeah, the problem of Congress is a strange problem because the assumption that underlies the Constitution is that everybody in the would be very ambitious. And so the balance of the system would be sustained by everybody’s ambition counteracting everybody else’s ambition. And so essentially the institutions would restrain each other each in pursuit of its own power. And what we now see in the modern Congress is that a lot of members don’t want to use their power as legislators. They want to use the institution in a different way than it was intended to be used. They want to use it as a platform for building their own brand as individuals, and they want to act as observers and commentators, especially on the president. And in essence, to say that their role as legislators is oversight, and you might even say commentary and punditry.

So what you find in the contemporary Congress is that members are still ambitious. James Madison wasn’t wrong about human psychology, but they understand their ambition in a way that is less connected to legislative activity and more connected to a kind of political performance. And so that means that the incentives they confront now don’t push them in a direction of being assertive legislators. To me, that suggests that we have to think about how to change those incentives. Some of the incentives are electoral. Members respond to primary voters, which is not how the system was originally conceived. Primary voters are the 10% or so of the American electorate who least want to see compromise and bargaining happen. And so when members understand those voters as their core constituency, they don’t want to be seen compromising and bargaining, and since that’s their job, they don’t want to be seen doing their job, they develop a different understanding of what their role is.

They also face some institutional incentives. The centralization of power in both houses of Congress has meant that it’s the leaders who make most deals when deals happen, and most members don’t really have a lot of legislative work to do, and so they do other work because they’re ambitious people and they see an opportunity to channel that ambition in directions that are not fundamentally legislative. To me, that argues for thinking about congressional reforms that make legislation more attractive to ambitious people and that make Congress more attractive to people whose ambition is more legislative. Congress should be much too boring to appeal to Alexandria Ocasio-Cortez or Matt Gaetz. People with that kind of sense of what their purpose is in life should look at Congress and think that is dull. The fact that they find Congress interesting is a very bad sign, and it means that Congress has become a kind of circus, a place to perform and be seen performing.

I think that can be changed especially by empowering the committees in both houses to play more of a central role in driving the agenda. Committees are inherently dull, but they’re also inherently arenas for negotiation and bargaining. They’ve become much less that. And I think there are ways to change the rules of both houses to allow them to be more so. But we also have to think about the electoral incentives that members face and the disaster that has been the move toward primaries in both parties. That has really deformed our politics in a lot of ways. We’re living in a moment when that’s really evident. Our politics is populated by people who are just not well-equipped to play the parts assigned to them in the system. And I think the parties have to think about what they’re doing wrong too.

James Patterson:

The subject of political parties comes up toward the end of the book, and I really feel as though it’s important to talk about parties, especially in terms of how they’ve changed since they’ve gone through a campaign finance reform regimes. And a subject that I teach on at my university is that what’s happened over time is the parties have lost more and more leverage over candidates. And I think we’re now at a point where the parties have been completely replaced by donors who can essentially invest in a campaign and the only vestiges of the party that’s left are the letters after the names. This seems to be very closely tied to this sort of performance act you get in Congress. So is there maybe a way of thinking about reforming parties and a way to make Congress more responsible?

Yuval Levin:

Yeah, absolutely. I talk about parties toward the end of the book because parties are not formally part of the constitutional system. In fact, I think of parties as a kind of missing piece in the constitutional puzzle. The framers thought it might be possible to avoid having formal durable parties. But as soon as the system got going, they immediately realized that they need political parties to organize political action. And the very people who thought we could avoid parties, especially James Madison, but ultimately also Hamilton and others, began to organize political parties. And that’s because democracy requires parties. Parties play an essential facilitation role in making it possible for democracy to function. They sort and select candidates for office and they facilitate coalition building. And I think that kind of coalition building is absolutely essential in the American system. It’s essential in some ways in every democracy, but in ours in particular, there’s a kind of need for two parties. The nature of the presidential selection process in particular means that if there are too many candidates, the process will not work.

And so our politics has almost always consisted of two broad, messy, sloppy parties, and those parties allow the system to draw into itself people who are well-equipped to engage in politics of negotiation and coalition building and bargaining. And coalition building is really the skill that has been lost in twenty-firstst-century American politics. And I think a lot of the reason for that is the wearing down of the parties. I would describe it very similarly to how you put it. I think maybe I would put money less centrally now. Maybe 10 or 15 years ago, I would’ve put it in just the same way you did, and you may be right, but I’ve come to think that money plays less of a role than I used to think and that is what’s replaced parties are actually a kind of independent contractor politicians who approach politics in a personalist way.

They have their own brand and they approach voters directly. They don’t really owe anybody anything. They’re selected by primary voters. And so their only constituency are those voters and they don’t feel like they owe their colleagues and the party anything. They don’t think that the party does all that much for them. It’s just a brand. And they’re not exactly wrong. The parties have actually contracted out to primary electorates their most important function, which is candidate selection. And so what remains really is a kind of brand, a platform. The parties are just a letter after your name and they tell voters something about you, but not all that much. And they barely exist as institutions.

We say now, “Shouldn’t the Democrats think about changing their presidential candidate?” You say, “Who are the Democrats? Who’s supposed to do this?” And that’s become a very hard question to answer. And there’s a primary electorate, but in my state, anybody can vote in the Democratic primary. You don’t even have to be a member of the party to do that. And so it’s very strange for the Democratic Party and the Republican Party to contract out their core function of candidate selection to anybody who shows up to vote in the primary. And the work of serving as a repository of political professionalism, which is what the parties do, has been lost almost entirely.

The United States is a democracy and so our politics is mostly an amateur politics, a civic and citizen politics. But there are these repositories of professionalism of people whose full-time job is electoral politics. And those people are very important because they can make certain judgments about how the system should work that ultimately allow the rest of the amateur politics system to function. I think we’ve mostly lost those people. They don’t know what their job is anymore. Is their job just to represent the will of the primary electorate? Is their job somehow to form the options people confront? Is their job just to strategize about how to win elections? Their role has become very murky. They don’t know exactly what to do. And they’re inclined to function as observers rather than as actors in the system.

And I think we are living through a failure of the party system, and you can see that in part by the fact that we’ve gone through 30 years now without a majority party in American politics. It’s very unusual, and it’s meant that the two parties when they win, just barely win. When they lose, just barely lose. And when you don’t win or lose decisively, you don’t really learn anything from the election, and our parties have not really learned anything in a long time. They keep doing the same thing over and over. It isn’t really working. They’ll win a really tiny sliver of a majority and say, “This is a new era that we will dominate, and from now on, this is how politics is going to work.” And then two years later, the public just chooses the other party and it seems like everything got overturned. There’s not much of a logic to how the party system now organizes our politics, and I think that has a lot to do with the parties turning into brands and with the primary system.

James Patterson:

Yeah, political scientist Julia Azari calls this the politics a de-alignment. We, like you said, have these cyclical realignments in politics, and because no one knows how to form coalitions anymore, it’s very difficult to sort out how that consensus might be reformed. We have time for one more question, and given that it’s an election year and you talk about it in the book: defend the Electoral College.

Yuval Levin:

Yeah, I think the Electoral College is easier to defend than people imagine. A lot of the times when it’s criticized, it’s criticized comparatively, and you say, “We just don’t have direct elections for the chief executive. We’re not a real democracy.” I think if you actually look at the other democracies, you find that the Electoral College is more democratic than how most democracies choose their chief executive. In most of the parliamentary systems, the chief executive is chosen by the parliamentary party. So the British, they just had an election. Before that election, between this one and the prior one, they had three different prime ministers. How were those people chosen between elections? They were chosen by a majority of the majority in Parliament, about 250 people who have the same political interest, who went to the same two universities, they chose the prime minister.

The Electoral College is much more democratic than that, but it’s intended to address the same problem as that kind of indirect selection, which is that when you choose an executive in a democracy, you always run the risk of demagogues, of people who move the public will in a way that advances an irresponsible person to a position of tremendous power. The Electoral College was one way to try to think about how to avoid that happening or at least reduce the likelihood of it happening. And it works as a system of basically 50 separate popular elections, the results of which are then weighted by population. It’s not that crazy. And I do think it is a way to avoid some of the dangers of a mass election while recognizing the necessity of electoral legitimacy.

It has some important advantages for us. For example, I think that if not for the Electoral College, our presidential elections in this divided time would actually be much more polarized. The Democrats would focus on the parts of the country where there are the most Democrats to bring out. Republicans would focus on those places where their people are concentrated. And they wouldn’t really talk to each other, they would just talk to their own core voters. Now, because of the Electoral College, it doesn’t matter how many Democrats you bring out in California or how many Republicans in Mississippi, if you didn’t win Michigan, you didn’t win the election. Michigan is distinct because it’s a place that could go either way.

And so the parties have to talk to the ideological middle of the country and to make themselves persuasive on the issues that make them most uncomfortable. I think that’s healthy for our democracy. It’s healthy in a divided moment. Obviously, the Electoral College is not perfect. There’s not a perfect solution to the challenge of how you choose a Republican executive, but I think that when you consider the options and when you think about the kinds of problems this system has to address, the Electoral College is a pretty good way to deal with that problem.

And I think ultimately the idea that there’s a legitimacy challenge when someone wins the Electoral College majority, but doesn’t win the popular majority is a misunderstanding of what we’re actually seeing with that popular majority. The elections we have are held on the premise that the president is selected by the Electoral College, and so people campaign that way. They focus their energies that way. They approach the public that way. If we had a popular election for president, everybody would campaign very differently and the result would be very different. I don’t think that the popular vote result in an Electoral College election actually tells us something in particular about public opinion. It’s a kind of side effect of the question the public was actually asked.

And so rather than be all that troubled by the fact that in close elections, the two can sometimes turn out differently, we should ask ourselves, what are we really doing here? The presidency is not a representative office, it’s an administrative office. The president is elected so that he can be accountable. And I do think that the Electoral College is a pretty good way to make sure that the president is accountable in the right way to the right voters. It certainly seems better to me than a direct election in a nation of 300 million people.

James Patterson:

Dr. Levin, thank you so much for being on the Law & Liberty Podcast. This was very enlightening. I hope you sell a lot of books.

Yuval Levin:

Thanks very much. I really appreciate it.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.