In this episode, AEI’s Yuval Levin, author of American Covenant: How the Constitution Unified Our Nation—and Could Again, and Aziz Rana, professor at Boston College Law and author of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, join Jeffrey Rosen for a discussion about whether the Constitution has failed us or can serve as a document of national unity.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by David Stotz and Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Yuval Levin is a senior fellow and the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute, where he also holds the Beth and Ravenel Curry Chair in Public Policy. He is the founder and editor-in-chief of National Affairs, a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at The New York Times. His most recent book is American Covenant: How the Constitution Unified Our Nation—and Could Again (2024).
Aziz Rana is professor and Provost’s Distinguished Fellow at Boston College Law School and the incoming J. Donald Monan, S.J., University Professor of Law and Government. He is an editorial board member of Dissent, The Law and Political Economy Blog, and Just Security. He is also a Life Member of the Council of Foreign Relations and a non-resident fellow at the Quincy Institute for Responsible Statecraft. His latest book is The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (2024).
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Yuval Levin, American Covenant: How the Constitution Unified Our Nation—and Could Again (2024)
- Aziz Rana, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (2024)
- "The Modern History of Originalism," NCC’s We the People podcast, (Aug 2023)
- Article V, Interactive Constitution
Excerpt from Interview: Yuval Levin argues that we should look to the framers for guidance only if their ideas are relevant and that past eras were just as complex and divided as today. He believes political reform should focus on making Congress more effective and accountable.
Yuval Levin: Jeff, can I say a few things? I think first of all, I certainly would not make an argument rooted in the framers out of authority in any way. I think we should only listen to the framers if they persuade us, if what they argue about the problems we face makes some sense as a way to think about those problems. There are areas where that's the case and areas where it is not, and looking to the framers is not something we ought to do because they're older or because they're James Madison, but because they have something to say to us. We should only do that as long as that's the case. I also think that it's too easy for us to look at past eras and think of them as simpler than our own. I think Americans in the early 19th century did not understand themselves as a unified people, and there were some extremely intense disputes.
Regionalism was much more intense as a source of division than it is now. There was talk of secession in the early 1800s and of course, they were at the beginnings of an intense dispute that ultimately led to civil war. I also think that in the 1930s to the 1960s, that era did not feel to people who lived through it as a quiet time. There was much more political violence in America then than there is now. There were extremely intense divisions over questions that demanded the attention of the entire nation. Questions of fundamental justice, questions involving economic change and economic crisis. And so those were difficult times in their own ways. And I think it's worth seeing that it is possible for our system to facilitate ways through times of difficulty.
It's not simply the case that it only works when there aren't big problems to worry about. It can also work when there are, provided we understand something of what it is we're trying to achieve and how, and there, I certainly agree that we need administration in the modern world. We couldn't have an 18th century government governing a 21st century nation, but that's not what we do have. And I think an administrative state that was more accountable to a Congress that was actually more interested in legislating would certainly be a far better way to govern our society than the one we confront now. To me, it's not about more or less bigger and smaller. It's about the character of the governance we have.
A congress that really did its job, would still require administrative agencies to carry them out. I mean, there's just no way for a modern government to do without them. And I don't think that we should imagine otherwise. But what we expect of the administrative agencies now is impossible. We expect them to do the work of legislating and the work of administering, and we expect them to do it in a way that satisfies this very diverse country with very intense divisions.
And I don't think that's achievable. And the reason that we ask the impossible of them is it seems to me that Congress will not do its job. So to me, the focus of political reform really does have to be on Congress. And that is the place where changes in the rules, changes in the structure of the institution and expansion of the house, which we've failed to do now for a hundred years, and which I think of as a kind of constitutional maintenance that is absolutely necessary for our democracy to work. These kinds of changes would stand a chance of really allowing us to recover some balance in the system and seeing if it can work for us today. As it stands now, I don't think the system we have at the moment is what the American constitutional system is meant to be, and therefore, I don't really see it as a test of whether that system can work for us or not. We have to begin by helping it work.
And I think reforms of Congress are also actually achievable. They only require a majority of Congress. That's where a lot of my work over the last 10 years has been focused for that reason. There has to be some intersection between what would be useful and what could be done. And those are both challenges to define.
Excerpt from Interview: Aziz Rana argues that extreme checks in the U.S. hinder majority influence and empower minorities, and the difficulty of amending the Constitution and the Supreme Court's power undermine democracy.
Aziz Rana: The problem in the US is that the types of checks or constraints, the counter majoritarian checks and constraints are incredibly extreme. They're far more extreme than comparable constitutional democracies elsewhere in a way that really inhibits that underlying value of one person, one vote. And what it does is it makes it very hard for organized majorities to influence policy, but it's not like that it just sort of limits or delays policy. At the same time, it also mobilizes and facilitates rule by particular empowered minorities.
And over time, this is the third element, the kind of classic adaptation that Americans have developed. A system of presidentialism is subject to all of the problems associated with presidentialism elsewhere, where you might have presidentialism combined with winner take all systems where you can't call new elections and this generates paralysis if you don't actually find compromise. And that can lead to more aggressive forms of presidential authority that in fact end up strengthening the kind of authoritarian strains within presidential systems, but not addressing deep-seated underlying problems. And as just one example of how majorities authored very particular minorities are strengthened in ways that end up inhibiting a kind of richer democratic life. We can think of the role of the Supreme Court.
So in the US, it's incredibly hard to amend the constitution. We have a constitutional system that is perhaps the hardest in the world to amend. And at the same time, you have a small Supreme Court, nine folks serving for life in an appointments process that's organized around a specific unit. In fact, all of representation in the US is organized around the unit of the state. So geography rather than a principle of representation based on one person, one vote again. And what this has done is, it's created a setting in which you could have a president that loses the popular vote. So seven of the last eight presidential elections, the popular vote's been won by Democrats. But then you have Republicans that end up serving as the president and then through control of the Senate that is deeply mal-portioned. So 70% of the population is now increasingly in just 15 of the states then be able to control the court.
So you have a super majority of conservatives on the court, six to three. And in fact, Trump alone was able to nominate and confirm despite losing the popular vote, three justices to the Supreme Court where all republican, all, excuse me, Democrats since 1968 have only been able to nominate and confirm five total. There hasn't been a Democrat that's been the chief justice of the Supreme Court since 1946. And because you can't amend the Constitution, it drives political and constitutional decision making into a court that has extensive power that can operate generationally in ways that are deeply inconsistent with where the public sort of would want constitutional politics to proceed.
Now, I see all of this as tied to certain tendencies within the Constitution that actually run counter to the goal of social cohesion. And maybe this is something we can get into, which is, the classic story is that the constitutional system, because of the ways in which it divides and negotiates power, allows us to economize on virtue.
It's a system not made for angels, as Madison would've said. But I actually think an assessment of American history highlights the extent to which for our constitutional system to operate effectively, it, in fact, needs a huge amount of background social cohesion. And indeed the historical periods in which something like the compromise and unity that Yuval is discussing, were actually operative in American life were very particular periods, the early 19th century, the mid 20th century were for distinct reasons the society writ large was able to marshal the type of background social cohesion and agreement that allowed a system that doesn't really work to foster cohesion to operate effectively.
My theory instead is that really what the constitutional system does is it incentivizes various kinds of turns towards minority rule and tit-for-tat defection that we're in fact dealing with at the present. And so it's really vital for us to think about, well, how is it that the Constitution operates in practice rather than to idealize a kind of framing vision from the 18th century? And imagine that that's going to be instructive for how to address things today.
Excerpt from Interview: Yuval Levin argues that we should look to the framers for guidance only if their ideas are relevant and that past eras were just as complex and divided as today. He believes political reform should focus on making Congress more effective and accountable.
Yuval Levin: Jeff, can I say a few things? I think first of all, I certainly would not make an argument rooted in the framers out of authority in any way. I think we should only listen to the framers if they persuade us, if what they argue about the problems we face makes some sense as a way to think about those problems. There are areas where that's the case and areas where it is not, and looking to the framers is not something we ought to do because they're older or because they're James Madison, but because they have something to say to us. We should only do that as long as that's the case. I also think that it's too easy for us to look at past eras and think of them as simpler than our own. I think Americans in the early 19th century did not understand themselves as a unified people, and there were some extremely intense disputes.
Regionalism was much more intense as a source of division than it is now. There was talk of secession in the early 1800s and of course, they were at the beginnings of an intense dispute that ultimately led to civil war. I also think that in the 1930s to the 1960s, that era did not feel to people who lived through it as a quiet time. There was much more political violence in America then than there is now. There were extremely intense divisions over questions that demanded the attention of the entire nation. Questions of fundamental justice, questions involving economic change and economic crisis. And so those were difficult times in their own ways. And I think it's worth seeing that it is possible for our system to facilitate ways through times of difficulty.
It's not simply the case that it only works when there aren't big problems to worry about. It can also work when there are, provided we understand something of what it is we're trying to achieve and how, and there, I certainly agree that we need administration in the modern world. We couldn't have an 18th century government governing a 21st century nation, but that's not what we do have. And I think an administrative state that was more accountable to a Congress that was actually more interested in legislating would certainly be a far better way to govern our society than the one we confront now. To me, it's not about more or less bigger and smaller. It's about the character of the governance we have.
A congress that really did its job, would still require administrative agencies to carry them out. I mean, there's just no way for a modern government to do without them. And I don't think that we should imagine otherwise. But what we expect of the administrative agencies now is impossible. We expect them to do the work of legislating and the work of administering, and we expect them to do it in a way that satisfies this very diverse country with very intense divisions.
And I don't think that's achievable. And the reason that we ask the impossible of them is it seems to me that Congress will not do its job. So to me, the focus of political reform really does have to be on Congress. And that is the place where changes in the rules, changes in the structure of the institution and expansion of the house, which we've failed to do now for a hundred years, and which I think of as a kind of constitutional maintenance that is absolutely necessary for our democracy to work. These kinds of changes would stand a chance of really allowing us to recover some balance in the system and seeing if it can work for us today. As it stands now, I don't think the system we have at the moment is what the American constitutional system is meant to be, and therefore, I don't really see it as a test of whether that system can work for us or not. We have to begin by helping it work.
And I think reforms of Congress are also actually achievable. They only require a majority of Congress. That's where a lot of my work over the last 10 years has been focused for that reason. There has to be some intersection between what would be useful and what could be done. And those are both challenges to define.
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