At Law & Liberty, a symposium on the Constitution and modern polarization. The lead essay is by Yuval Levin (AEI, National Interest): Constituting Unity. From the introduction:
We live in an age of animosity. Americans are polarized, and often bitterly divided. And the institutions of our public life seem only to exacerbate our discord. Congress, the presidency, and the courts have all become arenas and objects of culture-war enmity, so that frustration with the constitutional system’s assorted dysfunctions is rampant. Too many Americans are therefore persuaded that our Constitution is unsuited to our contemporary circumstances—that it assumes a more unified society than we now have, makes it too difficult to adapt to changing times, and so in this divided era can only make our problems worse.
But what if we are divided less because our constitution is failing us than because we are failing the Constitution? What if the framework of our democratic republic could offer us a guide to the hard work of fostering cohesion and forging common ground?
In fact, just that sort of work is a crucial purpose of the US Constitution. It is not its only purpose, of course. The document is meant to enable American self-government, on the terms demanded by the Declaration of Independence and in light of the imperatives of order, justice, virtue, liberty, and safety, among others. The preamble to the Constitution nicely summarizes its formidable aims. But that list of objectives does begin with the ambition to “form a more perfect union,” and the modes of governance created by the Constitution compel a fractious people to build coalitions and seek mutual accommodation.
The Constitution’s unique approach to that work of cohesion defines a great deal about our system of government. And a critique of that approach to unity has long been at the heart of the progressive repudiation of the Constitution. A clearer grasp of both could point the way toward some governing reforms that could not only help our institutions function a little better but might also help ease our divisions.
Commentary, from James Stoner (LSU – Political Science): Despite Deep Diversity.
Yuval Levin has written a splendid essay in defense of the Constitution of the United States, explaining how it was designed for a political people with serious differences: Far from being the cause of our polarization or an obstacle to overcoming it, the Constitution has within it, not a perfect solution to our conflicts but a proven capacity to guide us in addressing them. “How can we act together when we don’t think alike?” It might sound like a rhetorical question, asked in despair. But actually, he shows us, that’s what the Constitution and the complex of institutions it designs or designates make happen, channeling political impetus by dividing power and responsibility between the federal government and the states and by separating federal power among the branches, legislative, executive, and judicial. It doesn’t create a rigid structure or promote stalemate, much less enshrine the status quo; rather, it ensures that differences are not canceled but allowed to find appropriate expression, promoting coalition if not genuinely common action, though rarely the action any one party considers ideal. “Simply put, in a free and (therefore) diverse society, unity does not mean thinking alike; it means acting together.” It’s a brilliant formulation, if a paradoxical one. …
And from Stephanie Slade (Reason): The Promise of the Bill of Rights.
"As long as the reason of man continues fallible,” James Madison wrote in The Federalist Papers, “and he is at liberty to exercise it, different opinions will be formed.” The fundamental question of politics, then, is how a large number of people who will inevitably disagree with each other on many weighty matters can be made to “live together as members of the same family” and “fellow citizens of one great, respectable, and flourishing empire.”
In his lead essay, Yuval Levin gives a typically insightful and historically informed reflection on this problem. His argument, in short, is that the US Constitution equips us with the tools we need to meet the difficult challenge of wringing unity out of a “fractious people,” and that those tools are just as well-suited to the task in the twenty-first century as they were in the eighteenth. “Simply put,” he writes, “in a free and (therefore) diverse society, unity does not mean thinking alike; unity means acting together.”
Levin identifies four ways our founding charter allows us to accomplish this feat. Through federalism, it creates “space for competing approaches to governance” at the state level. With Congress, it forces various factions to come together and negotiate mutually acceptable compromises. The president’s job is to implement the law “in steady, predictable ways.” And when all else fails, the courts are there to enforce “clear boundaries on the power of majorities and public officials.”
Some 236 years on, it should be obvious that we are struggling with at least the first three of these. The federal government has metastasized, usurping all manner of responsibilities that were supposed to be reserved to the states. Razor-thin congressional majorities take it upon themselves to impose dramatic reforms, vehemently opposed by half the population, rather than working across the aisle to find common ground. And far from ensuring stability and continuity, every president now spends “half his term undoing his predecessor’s administrative actions and the other half taking actions his successor will undo.”
Each of these failures is an opportunity to return to the wisdom of the Constitution. Yet the fourth part of Levin’s equation—putting limits on what we try to do “together”—may be the most important. His essay focuses on the body of our founding charter, the part of the document that establishes and defines the various structures of the federal government. But of course, there is another component, one that exists not to enumerate governmental powers but to restrain them.
The drafters of the Constitution were initially opposed to including a declaration of rights. First of all, they thought that it was unnecessary, since the main text endowed government with only those powers they had specified. Second of all, they worried, not unreasonably, that putting some rights down on paper would lead to a belief that no other rights were protected. Nonetheless, many Americans balked. Having won their freedom from despotism abroad, people wanted a written guarantee against despotism at home. And so the Bill of Rights was born.
The genius of those ten amendments is that they take whole issues off the political table. In effect, the Bill of Rights says that there are some things the government may not do—not even if the duly elected president or a bipartisan majority in Congress thinks it would be for the best. Most regulations on speech fall into this category: Under the First Amendment, it simply doesn’t matter how many Americans think blasphemy, or flag burning, or speaking out against gay marriage should be illegal.
In a sense, the Bill of Rights attempts to remove certain questions from the political sphere. This is a beautiful instantiation of the classically liberal idea that coexistence is possible through mutual forbearance. When we agree upfront to forgo the use of state power to make others live the way we like, we can secure our own right, regardless of who may hold political office at a given moment, not to be forced to live the way they like. …
As to the last essay: this can be true only if the Bill of Rights is treated as having a fixed original meaning, rather than as dependent on the evolving moral and policy judgments of judges. If the latter, then the fractious politics overwhelms the courts as well.
Posted at 6:40 AM