How the Constitution makes us American

A discussion of Yuval Levin’s “American Covenant: How the Constitution Unified our Nation—and How it Could Again”

There’s an interesting passage in Federalist Papers, no. 57 where James Madison assures the critics of the new constitution that national elections will indeed select good candidates and keep them honest while in office. For one, he asserts, elected officials will feel a debt of gratitude towards their constituents that will blossom into a sense of duty: “There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns.” But in case that is too hopelessly idealistic, elections offer a double security: “Those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions.” Where gratitude is not strong enough to keep politicians responsible, the shame of losing re-election will.

Whether or not Madison’s theory is true, it implies two truths about human nature: 1) We are not as good as we should be. 2) But we can get better.

These truths are, in a sense, at the heart of Yuval Levin’s new book, American Covenant: How the Constitution Unified our Nation—and How it Could Again.

On one level, Levin’s book offers a well-trodden defense of the American constitutional system: federalism is good, the Senate is good, the Electoral College is good, and even partisan politics is good. If our system seems deformed today, it is the fault of progressive innovators like Woodrow Wilson who sought to replace checks and balances with an energetic federal government dominated by a powerful president that governs through a strong administrative state.

But at a deeper level, Levin is trying to justify the American constitutional system as suited to the human nature that Madison is describing. Levin, like Madison, is arguing that Americans, driven by narrow-minded self-interest, are riven into factions by competing values and ideologies. But, like Madison, Levin believes that the political processes laid out by the Constitution can prepare us, both as individuals and factions, to participate in government of the people, by the people, and for the people.

Our constitution achieves that end by nurturing the spirit of “republicanism.” Republicanism, Levin explains, is not a “system of government” but “a civic ethic” that “emphasizes our responsibilities to one another and to the common good.” While republicanism is grounded in the principle of self-rule, it is more than just direct representation of that will through state power. Instead, republicanism is the way that the Constitution and civic society transform people into citizens, fitted to govern and be governed.

The Constitution creates this ethic in two complementary ways. For one, recognizing that government is incapable of preparing people for civic life directly, the Constitution protects the associational life that molds our characters. “Our politics requires a kind of person it does not produce by itself, and so it must depend on other institutions of our society to produce that person.” The 1st amendment, for instance, is best understood not as an individual right of personal expression but as a communal right that allows the social bodies that form civic character—churches, families, media, schools—to flourish. The Constitution establishes limits to its authority so that its citizens are better prepared to exercise the governing power that it does authorize.

The other method is to create a series of overlapping and even competing political bodies through which citizens exercise their right to representation. The Constitution organizes us into states and House districts and then empowers us to vote for Senators, Representatives, and Presidential Electors—while also empowering each of those bodies to thwart the “mandate” that we have given the others. This Rube-Goldberg approach to representation is, at some level, undemocratic, for it channels the people’s will through a series of in ways that empowers some groups more than others. But republicanism, Levin argues, presumes that the people’s will is not in and of itself ready to govern the people. Instead, the will of a durable majority must be organized, refined, and tested over time through a series of elections before it is ready to pass laws that bind everyone.

For this reason, republicanism “counterbalances the democratic ethos because it values not just what we each want but what is good for all of us.” Democracy, in its purest form, assumes that people already know what is best, and the ideal government must represent—that is, literally re-represent—that will directly in the legislative chambers. Mediating institutions could only corrupt or thwart that will. In contrast to Madison, democracy assumes that people are already suited to wield power, and that institutions are legitimate only in so far as they respond to the people’s preferences.

Levin’s book is a response to democratic critiques of our constitution that argue against its counter-majoritarian structure. In these critiques, the electoral college, the Senate, federalism, judicial review are all chokeholds on the will of the people, methods by which minority interests tyrannize the majority. For Levin, though, the will of the people is not even possible to discern except through the political process, a process that gives it shape and direction: “Public opinion has to be formed before it can be measured, and it is formed not only on the basis of people’s innate preferences but also in response to the shape of the political system and its work. People don’t just walk around with a strong opinion about who their state’s next governor should be. They form that opinion in response to the question put to them at election time and the choice of answers presented to them.“ The Constitution, by organizing those elections, organizes the people into a public, individuals into citizens, in a series of overlapping constituent bodies defined by both geography and time.

And different forms of organization would create different sorts of publics. This is the root of Levin’s defense of the electoral college: it forms the national polity into a series of distinct bodies, which not only encourages citizens to see themselves as participating within a geographically bound state but also discourages us from seeing the president as a representative of “the people” (which it would impossible for one person to do, even in a popular vote system). This dynamic works the other direction as well: the electoral college encourages candidates to look for voters not in the safest seats but at the margins of the most competitive states, incentivizing them to moderate, broaden their appeal more generally, and strengthening their legitimacy.

In insisting that the public must be molded before it can be represented, Levin distinguishes himself from advocates for more pure forms of democracy, but he also distinguishes himself from other advocates of political virtue who see the solution to America’s ills in greater civic education. Books like The Seven Democratic Virtues and The Bill of Obligations also want to improve our political culture, but by prescribing intellectual humility alongside a healthy diet of Lincoln speeches and Federalist Papers, they read like appeals for citizens to eat their vegetables. In lieu of education of the mind, Levin calls for something more like an education of the heart, a moral formation. This type of formation is not possible through public education alone (while most of these books pin their hopes on the K-12 public school system) but can only flourish as our extra-political institutions flourish. “Our politics requires a kind of person it does not produce by itself, and so it must depend on other institutions of our society to produce that person. It has to make room for, and to offer essential protections to, a set of preliberal and prerepublican institutions of formation—familial, communal, religious, civic, and educational.” While shoring up all these features of our society is daunting, it is a far more manageable undertaking than the type of bookish education of the citizenry that those other works fantasize of.

Levin also deploys republicanism as a possible solution to another problem in American civic life: judicial review. Levin largely endorses the Supreme Court’s originalist turn of the last few decades, less for its inherent virtue as for its salutary effect of constraining judges from legislating from the bench. But if originalism is a healthy corrective to judicial excesses of the past, it is also, due to the very nature of language and law, an inherently limited tool. To many questions about constitutional meaning and present analogues, there will be no historically fixed, neutral answer. What then? “Some principle, some substantive moral good that is taken to be inherent in the Constitution, has to guide the judge’s pursuit of the meaning of the text in such a situation.“

Levin argues that when the Founder’s meaning cannot be discerned, what should carry the day is their political philosophy, which “is grounded in an anthropology of human fallenness and human dignity, a sociology of civic responsibility and communal self-rule, and a politics of solidarity and common action. Republicanism is attuned to the needs of moral and civic formation that require us to distinguish the community’s moral priorities.” This would require a judicial outlook that elevates the political branches, principally the legislature, over itself. Originalism has succeeded in so far as it has constrained judges; continuing to look to the courts to solve the nation’s problems would betray that victory. A republican politics depends on citizens negotiating among themselves, finding areas of compromise, and feeling responsible for outcomes—none of which are possible in the courtroom. “We must ask [the courts] to do their proper constitutional work and nothing else so that we all can do ours. And we must ask for that with precisely the imperative of unity in mind. Our Constitution is law, but also more than law. The work of constitutional statesmanship and constitutional citizenship is not fundamentally legal work: it can bring us together because it is political.”

Levin, to his credit, does not presume that unity means agreement. His vision of a healthy political culture does not depend on good feelings. On the contrary, channeling Madison, he argues that “unanimity…[is] a bad sign—an indication that passions had overtaken reason, or that freedom had been stamped out.” For this reason, political parties—often derided by Americans who see partisanship as beneath their enlightened perspective—are actually a positive feature of our constitutional development.

Levin presents the presidential election of 1824 as warning against non-partisanship. There, four Democratic-Republican candidates—Andrew Jackson, John Quincy Adams, Henry Clay, and William Crawford—divided the vote and sent the election to the House, which ultimately elected Adams, who came in second in the electoral and popular vote. From one perspective, this is the electoral college functioning as the Framers intended: a select group separate from the masses choosing the best candidate based on his individual qualifications rather than party ID. But in Levin’s reading, the 1824 election demonstrated how, without parties, presidential elections become contested battles among individuals rather than governing visions, leaving voters unclear about what is at stake or how to direct their vote.

The solution was provided by Martin Van Buren: a two-party system who would compete and adapt against one another to form a majority coalition. The irony of Van Buren’s vision is that a two-party duopoly “restrain[s] partisanship and moderate[s] its ill effects.” How? By incentivizing parties to always look for ways to expand their tent and appeal to voters. Parties with narrow interests or fixed ideologies—think the Green Party or the Libertarian Party—might be more “pure” to voters, but their purity prevents them from responding to voters. Two majors parties, on the other hand, negotiate ideological battles within their ranks while still offering voters a clear set of options.

Once again, early twentieth-century progressivism threatens this system. By prioritizing responsiveness and effectiveness over deliberation and negotiation, progressivism sought to strip away the constitutional checkpoints that delayed action until a durable majority had developed over time, preferring instead the Westminster model, in which a winning party assumes nearly total power, implements their governing vision, and then leaves it to the voters to approve of them or not. Levin admits that this model “is a legitimate and democratic approach to government,” but points out that it sacrifices “deliberation and social peace” to achieve “administration and accountability.” This gets at a point that Levin stresses in different ways throughout the book: the American constitutional system is best suited to America because its people are so diverse in ideology and interests. Presuming, or forcing, agreement will certainly only inflame division. Unity must not mean sameness but coordinated action. Government is how we negotiate our differences, not how we dissolve them.

Levin ends on this note by turning to an unexpected source: Aristotle. Instead of relying solely on, say, Locke or the Scottish Enlightenment, Levin argues that Madison’s arguments for civic unity go back to ancient Greece. Aristotle’s Rhetoric, for instance, implies a core truth: rhetoric is the process of sorting through political options, which implies that while there are many possible roads we might take, we ultimately must choose and live under one of them. “To make such decisions is to rule; to live by them is to be ruled. And politics is the combination of the two.” When we argue over politics, we are both acknowledging our disagreements but also inviting our audience to join us in political negotiation rather than expecting them to submit to our will. It is only when the arguing stops that the battles begin.

The turn to Aristotle in the book’s conclusion suggests one of the strength’s of Levin’s perspective on American constitutionalism, and one of the strengths of his book: we cannot think of government without considering the habits and culture of the humans to be governed. Political philosophy is always, at some level, just philosophy. While humans are so varied that no single universal model can be elevated as the true ideal, Levin makes a strong case that Americans seek both diversity and unity, individual freedom and collective action, and that our constitutional system is as good as any at channeling the American spirit into political action. “By thinking about our system of government as existing in part to form us to better live together and not just to count heads and use power, we can come to see how civic action can facilitate not only greater social peace but also genuine cohesion. And by revitalizing the republicanism of the framers, we can better understand how to pursue the common good in practice, as a way of life lived together despite our variety and multiplicity.”