The Future of Conservative Constitutionalism

By Yuval Levin

Friday, September 17, 2021

 

The ambitious project of constitutional restoration that has occupied a portion of the American Right for generations now finds itself at a peculiar crossroads.

 

On the one hand, the effort to transform the courts, which has been at the center of this project for half a century, has reached an impressive high-water mark. Launched in response to the pernicious overreach of the Warren and Burger courts, this effort sought nothing less than to recover an understanding of the proper role of the judge, which had been utterly lost, and to put it into practice.

 

In a sense, that project was one of several efforts on the right to respond to the calamities the Left had unleashed on the country by the end of the Great Society era. The other monsters tamed for a time by conservative political and policy work in the 1970s and ’80s — crime, stagflation, welfare dependence, a kind of semi-socialist regulatory economics — were all beaten back more quickly than progressive judicial activism. Indeed, they were beaten back long enough ago that they now threaten to resurge, and some younger conservatives (young enough perhaps to still expect permanent victories in this vale of tears) can be found genuinely wondering what conservatism has ever conserved.

 

Yet the work of the conservative legal movement has not only taken longer but also taken a different and more ambitious form than those struggles did. It wasn’t just a political and policy fight but truly a march through a set of institutions. It created an alternative elite legal culture teeming with professional and educational networks, communities, norms, and structures of reward and career development, all built upon a coherent if still diverse and dynamic intellectual framework that offered a set of constitutional theories to act on. Those ideas, because of those institutions and the people they formed, now dominate the federal judicial landscape. Two thirds of the members of the Supreme Court are creatures of the culture this extraordinary project created from scratch. And next year they may well finally overturn the most prominent and ruinous instance of the sort of judicial usurpation that gave rise to the effort: Roe v. Wade.

 

On the other hand, this project appears to be increasingly contested within the Right, and confronts a variety of internal critics who consider it at best too constrained and narrow. Some libertarian-minded critics have long argued for a more assertive role for the judiciary in defending individual rights. Now a growing cadre of traditionalist critics argue for a similar assertiveness but in defense of the common good. Although they argue from seemingly opposite corners, their critiques add up to a sweeping challenge: If originalism doesn’t adequately champion individual rights or the common good, then what does it champion?

 

Originalism is plainly built upon an answer to that question, but one that understands the project of the conservative legal movement as but one facet of a broader constitutionalism, and therefore surely not a self-contained solution to what ails the American system of government. In isolation, its conception of the judge’s role is indeed not adequate to the kinds of goals its libertarian and traditionalist critics rightly bring to politics. But that’s because it views the judge’s role as fundamentally protective and not assertive, and so as guarding the space in which a properly assertive republican citizenry can pursue those goals by engaging in politics. The judge does sometimes need to limit the republican citizenry and its representatives when they threaten to trample foundational principles or violate the structure of the system and its institutions. But the judge may not stand in for those citizens or their representatives as an active agent of political change.

 

Originalism thus champions an ideal of self-government rooted in the premise that legitimate public power is generally a function of popular sovereignty, and therefore that the legislative branch should be the moving force in our system of government. The executive exists largely (albeit not exclusively) to implement Congress’s statutory frameworks. And the judiciary exists to interpret and apply the Constitution and the laws in particular cases, restraining or enabling public or private action as required. As the late Chief Justice William Rehnquist put it in the early days of originalism, if judicial action were not fundamentally interpretive in this way, then judges would have to be understood as “a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country,” and that is surely not what they ought to be.

 

This view of the role of the judge is inherently reactive and restrained. It suggests that judges should begin from a presumptive deference to the will of legislative majorities and that if the laws don’t adequately advance the common good then that should be taken up with the people who make the laws — who are also much more accountable to the public than are judges. This isn’t because the common good is just some kind of aggregate of individual preferences but because our freedom to make laws as a community or nation is essential to our collective capacity to pursue the good.

 

This view therefore also tends to assume that popular sovereignty is communal more than individual, which is what some libertarian critics don’t like about it. And it tends to assume that such sovereignty is best embodied in the messy accommodations of a dealmaking legislature rather than the clean assertions of willful judges or forceful executives, which is what some traditionalist critics don’t like about it. But it suggests that both individual rights and the common good would be better served by such an approach to government than by one in which judges were more proactive and assertive in pursuit of their own goals, or even of their understanding of individual rights or the common good. Our Constitution created a republic, and, as James Madison put it (with mixed feelings), “In republican government, the legislative authority necessarily predominates.”

 

Because it arose in response to the excesses of progressive jurisprudence, this kind of originalism can seem to have more to say about what judges should not do than about what they should do. And some of the conservative unease with originalism in our time has to do with a sense that this renders originalism too cramped and narrowly focused, and excessively skeptical not only of natural-law reasoning but even of the common law, which after all is foundational in our political tradition.

 

There is surely merit to such criticism. But as it has developed, originalism has reached beyond a doctrine of judicial restraint, and even judicial interpretation, and has increasingly focused on the nature of law as the foundation of its view of the responsibilities of judges. As (now) Justice Amy Coney Barrett put it in 2017 “Originalism has shifted from being a theory about how judges should decide cases to a theory about what counts as valid, enforceable law. The Constitution’s original public meaning is important not because adhering to it limits judicial discretion, but because it is the law. And because it is the law, judges must be faithful to it.”

 

It is easy to see how even this expanded understanding of originalism would still strike its traditionalist critics as blinkered, but Barrett’s characteristic clarity also sheds light on an unspoken source of that frustration. Originalism is inherently limited as a constitutional doctrine not only because it prescribes a restrained role for the judge but also because it is almost exclusively about the role of the judge. A fuller constitutionalism would have to take up the proper roles of everyone else in our system, and so would be far less constrained.

 

Broadening the aperture in that way could also help bridge some of the differences among constitutionalists on the contemporary right. Judges must be faithful to the laws, and the executive must take care that those laws be faithfully executed, but legislators ultimately frame the laws on behalf of the public and so have much more latitude to take in deeper and broader conceptions of the common good and to enable our political order to take shape accordingly. The legislature is where the desire to transform the government’s role in American life within the bounds of the Constitution should be directed.

 

That this desire is now misdirected (to both courts and the administrative state) is an enormous problem, which almost by definition calls for more than a theory of judicial action. The original originalists, to quote Justice Barrett once more, “insisted that the Court needed to be reined in so that the democratic process could function.” Implicit in their project was the assumption that if the courts ceased to intrude upon the space reserved for the people and their representatives, then the people and their representatives would act energetically to fill that space. In just this way, the Constitution’s own emphasis on limitations on power seems rooted in the assumption that power and ambition will never be lacking in government, so that constructing limits on improper means of action is also a way to construct proper means of action.

 

The very success of the conservative legal movement has revealed that this is not really the case just now, however, and that something has gone wrong closer to the core of our system. Congress now frequently declines to use its power, or at least to use it in the ways prescribed by the Constitution. More aggressive judges — however well-intentioned they might be — are not in a position to address that problem themselves.

 

Some contemporary criticism of originalism is therefore at least in part a kind of chafing at the constraints of a judge-centered constitutionalism. It points to a genuine problem, but not one that can be legitimately or effectively addressed by the means it proposes. It gestures toward conservative judicial supremacy, as if replacing one unaccountable elite with another will restore our republic. But that expectation is itself a corruption of the republican form of government, and we have come to lack the vocabulary to properly describe and resist that corruption because we have put so much of our hope in a transformation of the judiciary for so long.

 

Ironically, in arguing for a modest role for judges over the past half century, conservative constitutional thought has become too focused on judges. The felt need for a conservative theory of government action alongside our theories of government restraint should move conservatives to look beyond the judiciary, and especially to Congress.

 

Beyond the Courts

 

To counteract our inclination to leave American self-government to judges and lawyers, we might begin by seeking after the purpose of the Constitution. To what question, and to what sort of question, is the Constitution supposed to offer an answer? It isn’t simply an answer to the question “What should the law be?” Rather, it is more like an answer to the question “How shall we govern ourselves, given our divisions and diversity, our commitment to some core self-evident truths, and our desire to be a free and just society?”

 

This is not a question to be answered by judges alone, or even primarily. It is a question for the people and their representatives, and the Constitution can help us see how to put that question to them, how to properly strengthen and properly constrain their capacity to answer it, and how to act on their answers. The distinct institutions it creates, the dynamic balance it establishes among them, the powers of the government and the rights of the people that it enumerates, and its characteristic ways of solving problems all offer ways to take up that core question.

 

And its primary institution for doing all that is, without question, the U.S. Congress. The Right’s court-centered constitutionalism was born to free Congress to act, but in practice it has too often under-emphasized the importance of Congress. In fact, conservatives have tended to put the legislative branch third in our constitutional hierarchy, not only behind the judiciary but also behind the executive. When we’re not looking for judges to save us, we assume only the right president could do it.

 

Conservative presidentialism was born around the same time as originalism, and for some related reasons. By the 1970s, it seemed that the courts were home to lawless progressive radicalism and Congress would forever belong to the Democratic Party while the presidency would regularly fall into Republican hands. This encouraged many Republican lawyers and constitutional scholars to see themselves as defenders of presidential prerogatives against congressional usurpation. The executive is also more susceptible to being described legalistically than is Congress, so that the Right’s increasingly legalistic constitutionalism was naturally more comfortable with the lawyerly terms of executive and administrative power than with the much more open-ended republicanism of the legislative branch.

 

Whatever its roots and intentions, however, this right-wing presidentialism (like so much of Nixon-era Republicanism) ultimately ratified a progressive mistake. The progressive view that the president, as the only nationally elected official, embodies the will of the public and so could serve as a focal point for populism or for democratic action is a profound conceptual error that distorts our understanding of the Constitution and the country. In a diverse and divided society, representation requires bargaining and accommodation, which means that only a plural assembly can be meaningfully representative. The presidency is a unitary office not because it is meant to represent the entire society but because energetic executive action requires unity. Congress is plural because effective representation in a modern, mass-democratic republic requires plurality.

 

But the conservative emphasis on the presidency and the courts has done more than de-emphasize Congress. As my American Enterprise Institute colleague Philip Wallach has noted, it has led the Right over the past half century to utterly detest Congress — to implicitly identify it not only with the Democrats but with corruption, waste, and incompetence. And while conservatives ultimately responded to their hatred of the judiciary by transforming the courts from within, we have responded to our hatred of Congress by just hating Congress.

 

Even when Republicans have run the institution, as they have about half the time over the past quarter century, they have operated out of a kind of disgust with it. We now remember the Contract with America, which helped them take control of Congress in 1995 after four decades out of power, as something like a policy agenda, and it was that in part. But it actually began as an indictment of the Congress, and a commitment to clean house there. Since then, Republicans have taken every opportunity to cut Congress down and keep it under-resourced and have taken very little interest in reforms that might modernize the institution and strengthen it in relation to the other branches.

 

Conservatives who are frustrated with the substantive passivity of the Right and its reluctance to use political power should particularly want to overcome this distaste for the legislature. Congress is the natural constructive outlet for populist energies. Our hatred of Congress ultimately only weakens our position in debates about what government should and should not do.

 

A System Out of Balance

 

But the problem runs deeper than a distaste for Congress translating into a conservative inability to use public power. Because the Congress sits at the center of our system of government, its willful weakness (which is a decidedly bipartisan vice, even if the Left and Right encourage it for somewhat different reasons) makes it impossible for that system to function properly, and also deforms our political culture.

 

This is evident, in one sense, as a simple matter of constitutional hydraulics: The three branches of our government keep one another in balance through a competitive dynamic. When one of them fails to exert its proper power and energy, the others will become excessively powerful and energetic. What we think of as judicial activism and administrative overreach are to a very great extent both functions of congressional underreach and cannot be addressed without a revitalization of the legislature.

 

But while this competition is essential, especially to preventing excessive concentrations of power within government, it is ultimately the process of negotiation between the different priorities of different factions in our society that enables self-government to happen. And that negotiation can only occur legitimately within the Congress.

 

This is in fact the primary purpose of the Congress. Our national legislature is not a European parliament, where a governing coalition does what it wants until the public throws it out. It is designed instead as an arena of contention, where ever-shifting coalitions between and within our two parties bargain with and accommodate each other to advance legislation that takes up public priorities. The achievement of such accommodations across lines of difference is generally an even more important goal of the Congress than the solution of various policy problems. What happens in Congress is not the trampling of minorities by majorities (which is always the greatest danger confronting a republic) but the working out of differences through dealmaking. This is why the institution is shaped and divided as it is, why majority power is frequently sliced and diced to drive cross-cutting coalitions to form, and why some modest supermajority mechanisms tacked on to its original constitutional frame over time (like the filibuster, and some elements of the committee system) can be so crucial to Congress’s success in an exceedingly polarized era like ours. They try to promote dealmaking and bargaining, and so to make it harder for Congress to run away from a legislative politics of negotiated accommodation toward a judicial and administrative politics of forced compliance.

 

This is also why Congress’s success, in turn, is crucial to the health of America’s political culture, and of its broader culture. By enabling both competition and negotiation, the two characteristic means of sustaining social peace in our constitutional order, a functional Congress can not only help us contain dangerous divisions but also help us construct national cohesion and unity. In its absence, we lack the means both to accommodate each other and to understand ourselves as parts of a larger whole. And the lack of means for both is now painfully evident in America.

 

Arenas of contention, where people with different views and priorities actually engage each other, are growing rare and endangered throughout our society now — in the academy and the intellectual world, in the media, in civic life, and in our national politics. We have grown accustomed instead to arenas of affirmation, where we only hear our own views repeated back to us. This increasingly leaves us confused about what political action involves. In the absence of an arena of contention such as Congress, many people are left with the impression that talking about fighting those we disagree with is realistic and hard-headed while seeking direct engagement that could result in practical bargaining and negotiation with such people is a cop-out. Roughly the opposite is true in a republic, and as long as we fail to see that we can hardly hope to achieve much. The debilitating culture war that now passes for politics in America cannot be eased without a restoration of the Congress.

 

The People Themselves

 

James Madison was not wrong to say that the legislative branch necessarily predominates in our republic. When Congress is dysfunctional, the larger system of which it is the foremost part falls into dysfunction too. Conservatives therefore need to respond to our distaste for Congress like we responded to our distaste for the judiciary — by recovering a proper understanding of the purpose of the institution, and then acting to bring it into line with that understanding.

 

The Congress has the power to reassert itself. What it lacks is the will. And that means that the project of reassertion must begin by changing how Congress understands itself, and how our society understands it.

 

But Congress is not the purview of an elite profession, like the courts. It is the people’s branch of the government, and so the prospects for its recovery depend less upon a determined march through a set of elite institutions and more upon a transformation of public expectations, which itself depends on some recovery of active citizenship and republican virtue among a meaningful swath of the public. This is both good news and bad. A renewed understanding of the role of Congress could take shape more quickly than the new alternative elite legal culture did. But the mechanisms by which it could change the expectations of citizens and the behavior of politicians are less clear and well defined. It will need to be connected to a recovery of a proper attitude toward American citizenship itself.

 

Republican virtue can sound awfully highfalutin, but its essence is the instinct to say “us” and “ours” and not “them” and “theirs” when talking about the challenges of governing this country. Such an attitude points toward actively taking responsibility rather than passively assigning blame, toward claiming ownership of problems rather than feeling oppressed by them, and toward acting in rather than just commenting on American life. It begins with the simple recognition that no one is coming to fix our country unless we do it ourselves.

 

With such a disposition to responsibility comes almost inevitably a sense of restraint as well. Ironically, people who know they need to act rather than just talk tend to be more realistic about the limits of action and more moderate in their expectations. Self-restraint and self-command make self-determination and self-government possible.

 

Our system requires some understanding of these premises, and some practice of these virtues. But even as it demands them, it can also inculcate them. A healthier citizenship is a precondition for a more robust constitutionalism, but it would also be a product of it. This is how virtue works — it is by practicing it that we make ourselves more capable of it. Every athlete understands that concept, and every citizen should too. Complaining is helpful if it leads us to act to improve things, but it is only the acting itself that could actually improve things.

 

Is there any reason to hope that such a restoration of republicanism might be possible? Of course there is, provided that we do not confuse active hope with passive optimism. We have as much cause to hope as the champions of judicial originalism did half a century ago. They held out a prospect that must have seemed utterly outlandish, but they did more than hold it out — they worked to achieve it. That work was intellectual at first, and then it was institutional and professional and political. And it has achieved more than they had any right to imagine.

 

The next phase of conservative constitutionalism will need to blaze a similar path. Its aim is continuous with the transformation of the judiciary, and is enabled by it, since the purpose of that transformation was after all to facilitate a reassertion of republican ideals in practice. That work, too, must begin with intellectual exertions — to render in intelligible contemporary terms the case for Congress and for republican citizenship. It, too, will then need to extend into institutional and political work and to confront forthrightly the progressive deformations of American government. And it, too, must have as its goal a transformation that is ultimately a modernizing restoration.

 

If it stands any chance at all, such an effort will take time and patience, a dedication to the formation of the rising generation, and ultimately the sort of commitment to our country that can make a long and arduous effort into a labor of love. It will, in other words, require conservatism at its best. America deserves no less.