At Liberty Law Blog, Yuval Levin: Rekindling Constitutional Ambition. From the introduction:
Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us.
In searching for solutions to a constitutional imbalance, it is natural that we should consult the views of the system’s architects, the Framers of the Constitution. . . . But it might be worth our while, in this challenging time, to also think a bit more about the assumptions they made regarding the proper attitudes of the people who work in the institutions they created. We might then get a sense of what potential reforms could help imbue policymakers and others with these attitudes.
And on where the framers erred::
Two of Publius’ most boldly stated expectations—one expressed by James Madison and the other by Alexander Hamilton—have held up particularly poorly. Each involves an assumption about institutional relationships in the constitutional system that is rooted in an assumption about human nature. The first is Madison’s assertion, in Federalist 51, that “In republican government, the legislative authority necessarily predominates.” And the second is Hamilton’s assertion, in Federalist 17, that “It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”
These are confident and essentially unqualified assertions. And they speak directly to two of the most significant problems with our constitutional system today: the weakness of the U.S. Congress relative to the other two branches of the federal government, and the weakness of the 50 state governments relative to the federal government. Both problems flatly defy the Framers’ expectations. Hamilton and Madison were not expressing hopes or aspirations but assumptions upon which some of their constitutional theories were premised, and yet today we would have to say that those assumptions are not correct.
Hamilton is not saying that politicians at the national level should not involve themselves in the governance of mundane matters; he’s saying, more than a little blithely, that there is no danger they’ll even want to.
That is a serious failure of imagination, surely rooted at least in part in Hamilton’s own Napoleonic ambitions. But it suggests that the federal government sometimes intrudes into the kinds of governing questions that the Framers thought would remain with the states not (as one might have thought) out of excessive political ambition or willfulness, but out of something like the opposite: a kind of failure of ambition, a narrowness of vision that keeps them from seeing what the national government should be about.
A similar dynamic is at work in Madison’s prophecy that the legislative branch would necessarily be the prevailing one in our system of government. The father of the Constitution was guided by that assumption as he thought about what ought to be the relative strengths of the federal branches, and it led him to look for ways to weaken Congress while reinforcing the executive.
Notice how closely this prophecy, and its failure to materialize in our time, resembles Hamilton’s: Both of them rest on an assumption of intense ambition among federal officeholders. Our constitutional system is designed to contain and channel that ambition—to force it into a constructive conflict with the ambitions of other constitutional actors so as to restrain them all and enable them to reach collective judgments indirectly.
In the absence of such ambition, the system breaks down. …
Posted at 6:23 AM