What the Constitution Can Give Us

COMMENTARY Conservatism

What the Constitution Can Give Us

Sep 19, 2022 9 min read
COMMENTARY BY
Richard Reinsch

Director, B. Kenneth Simon Center for American Studies

Richard is director of the B. Kenneth Simon Center for American Studies and AWC Family Foundation Fellow at The Heritage Foundation.
The sun rises directly east over the U.S. Capitol dome as seen from the Washington Monument Monday morning, September 19, 2022. Bill Clark / CQ-Roll Call, Inc / Getty Images

Key Takeaways

Conservatives need to articulate the constitutional form that defends and preserves the institutional design and workings of the Founders’ Constitution.

To have government in the name of the people, for the people, and by the people requires some degree of separation of the people from the government itself.

The central task that Congress must again serve is to unite a disparate country through legislation.

American conservatism faces an array of difficult if not intractable challenges and problems. Progressives dictate revolutionary claims about gender, race, economics, and policing while dismissing American history as just racism, sexism, and homophobia. Moreover, they control the commanding heights of culture, education, social media, influential corporations, and the federal bureaucracy. Conservatives still win elections about half the time, but confront incredible obstacles in governing because of this political, cultural, and educational imbalance of power.

To meet these challenges, American conservatism must first define what precisely it wants to conserve. That project must, ultimately, begin with the Declaration of Independence and the American Constitution and the legal, political, and moral order these documents protect, guarantee, and depend on. Of course, conservatives regularly refer to these documents substantively and rhetorically as the essence of what they are trying to defend against various progressive onslaughts. Those conservative appeals to the American founding vary widely in how and what they draw upon for contemporary meaning and articulation of what it means to be conservative. Some of these appeals overlap with one another and indicate different areas of focus. Others presage clear disagreements.

The Form of American Constitutionalism

We should ask, though, what precisely is the form of the American founding? The answer matters, because we must recover the virtue and rationality that brought our governing institutions into existence. For this, conservatives need to articulate the constitutional form that defends and preserves the institutional design and workings of the Founders’ Constitution. This form sets and fosters deliberation as the primary mode of republican government in America.

Conservatives are right to spend significant time and resources in ideological and policy battles with progressives, even as our federal governing institutions sag under the deformation progressives imposed. Indeed, how will conservative achievements even be possible if representative institutions are spent down to nothing, incapable of supporting the necessary renewal of America’s constitutional order?

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This is a serious concern. The progressive mode of scholarship and political action has denied the excellence of American’s constitutional inheritance and sought to replace it with a largely presidential–administrative-driven state, which later included the federal judiciary. The goal—which for progressives became a kind of public orthodoxy in the last of the 20th century—was to build a moral and social order of secularist and autonomy-focused individualism.

A constant growth of entitlements, spending, and regulatory power is an essential attribute of this project. It tends to reduce us below the level of citizenship as we become inured to direct federal management of much of our lives. That is, power is not only vastly centralized but removed from self-government and now stands over us as a superintendent.

By contrast, the American framers fashioned a deliberative republic that would inform and guide the constitutional order through the rocks and shoals of public life. Our better ordering as a constituted people over time would come through a public discussion process, shaped by representative institutions. These institutions would both receive opinion and also moderate it and refine it, slowing roused opinions and passions. The goal of the constitutional framework is to lead elected representatives to deliberate well and turn opinion into policy that can stand above mere majoritarianism.

However, even to argue for a return to deliberation seems naïve at this point. The progressive framework has been overlaid atop the Framers’ original design. All that deliberation in our deeply divided country can produce is a divided Congress and gridlock, as is the case today, while the administrative state runs on a kind of autopilot. Meanwhile, in the divided Congress, party leadership has gradually accumulated power at the expense of legislative committees. The accretion of power from legislative committees to party leaders means that Congress no longer operates in and through a full deliberative framework but receives and acts from centralized partisan commands.

Lawmaking is always informed by party considerations, but it has now become incredibly ideological and short-sighted. And this has culminated in the failure for nearly two decades to have actual budget debates for each major federal department. Instead, Congress funds the federal government through omnibus packages in the form of continuing resolutions.

Major legislation frequently comes from leadership without much input or debate in committees and is voted on by Congress in an increasingly short amount of time. This is surely not deliberation, but almost oligarchic rule as party leaders within Congress dominate its work. Congress itself seems unreformable.

Return to Deliberation

So, what to do? Turn to Joseph Bessette. His The Mild Voice of Reason (1994) offers a reflection on the political quality of deliberation worthy of Publius, replete with case studies on how members of Congress who engaged fully in the deliberative process emerged as the respective leaders of their parties and of the institution. The opportunity for deliberation must be cultivated and protected. Bessette recalls Publius’s admonition in Federalist No. 42 that “the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.” How then to defend deliberation as the topmost principle guiding the works of American constitutionalism?

On deliberation, Bessette argues that the Philadelphia Convention and its subsequent defense in The Federalist Papers built the constitutional order on the “republican principle” of the sovereign people as the basis of the government. But the balance was among deliberation, energy, and majority rule, according to Bessette. These three elements had to be thought and held together.

If held together, they entailed “deliberative democracy” that fosters rule by the informed and reasonable judgment of deliberative majorities who would check and moderate the unreflective popular sentiments and opinions of uninformed, immoderate, and/or passionate majorities. That is, the citizenry reasons through representatives and “the cool and deliberate sense of the community” emerges through dry argument over the questions, problems, data, and logic needed to answer the policy challenges of the period.

We face serious challenges today in living up to this today. But our predecessors did in their time as well. The problem faced by Madison and those arguing on behalf of the new Constitution was that the republican principle had been quite strong in the new state constitutions of the 1776 period and forward. There was an abundance of opinion and sentiment inside the legislatures, but such energy and passion threatened the overall republican experiment. Deliberation had broken down in favor of the rough justice of democracy that saw concerted efforts of majorities override the rights of minorities.

Was republican government still possible in America? The chaos of the 1780s taught Madison and other Framers to defuse the problem of majority faction, restrict the legislative authority to properly legislative matters, and promote the election of more-responsible political leaders. But to pare down the vicious arts of faction required institutional features to foster deliberation so that the people’s voices in majority faction did not directly determine the content of the laws.

The crux, Bessette observes, was the tension between deliberation and democracy. Deliberation places a premium on reason, order, information, and commonality. Such qualities are not evident in democratic forms or mass assemblies. Thus, the institutional features become paramount in leading representatives to deliberate well about the national interest.

The surface level anti-democratic truth is that to have government in the name of the people, for the people, and by the people requires some degree of separation of the people from the government itself while also retaining accountability to the peopleTo this end, Federalist No. 10 illuminates Publius’s belief in deliberation. This can serve as a guide to our own problems.

James Q. Wilson once compared Federalist No. 10 to its famous counterpart, Federalist No. 51. Wilson helps us understand how deliberation is more important than even separation of powers. Federalist No. 10 begins with worry over the tendency for factions to form in republican government. But unlike in Federalist No. 51, the remedy is not separation of powers. This does not diminish separation of powers, which also serves deliberation. But it does indicate the complexity of Publius’s thought regarding deliberation. Federalist No. 10 finds faction even more dangerous than does Federalist No. 51. While “the various and unequal distribution of property” is “the most common and durable source of faction,” there are also “passions,” “religion,” and “opinions.” There is also the “fallible” nature of man’s reasoning capacity.

Publius’s well-known solution to this intractable problem is not to squelch faction, which would require oppression and the extinguishing of liberty, but to extend the sphere of representation. This is more than a system of checks and balances (though it is surely that as well). Publius seeks “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of the country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

If factions and interests are blocking one another because the extended sphere has put so many jostling interests against one another, then an appeal to the common good, to justice, and to the national interest becomes the way to unlock those interests and create new governing majorities. Federalist No. 10 can be read to signal that deliberation even rises above separation of powers.

Rational-choice political scientists rightly point to the more sober views of power, faction, and human nature contained in Publius’s defense of the Constitution. The “defect of better motives” is the predicate to Publius’s call for “auxiliary precautions” found within the separation of powers to slow down immoderate enthusiasm and ambition within the government. But we can also take a measure of confidence in Publius’s appreciation for the virtue and rationality in human nature. On this score of deliberation leading to political wisdom, consider the distinctions Publius draws between opinions and passion. The former is open to reason and judgment; the latter is beyond reason, and thus can only be brought under control by well-formed opinion overruling it through deliberative majorities.

We should also look to the confidence Publius shows in human nature. In Federalist No. 55, he observes that it possesses “sufficient virtue” and those “other qualities in human nature, which justify a certain portion of esteem and confidence.” Publius is under no illusions about the human person, but also believes that mankind knows the difference between prudence and rapacity and can choose the former. But is this plausible for a country riven with factious politics?

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Prospects for Recovery

Perhaps the ultimate legacy of an originalist majority on the Supreme Court will be the return of crucial political and regulatory questions to Congress for statutory settlement rather than representatives endlessly creating Post-it Note legislation whose real determination comes in agency rule-making and adjudication. But a Court imploring Congress to legislate matters little if Congress has no desire to engage in a deliberative procedure that produces legislation in national defense, health, welfare, commerce, entitlements, etc.

The central task that Congress must again serve is to unite a disparate country through legislation. This is the superior alternative to one-man rule by executive authority, which is unlikely to unify. And whatever political wins the latter mode accrues will quickly prove as ephemeral as they are inciting to the opposition party’s ire.

Publius is continuously pointing us to virtue as the missing premise of our deliberative regime, a premise that is crucial to its maintenance and rigor. Our difficulty remains the standard that Publius set forth in Federalist No. 57: “The aim of every political Constitution is or ought to be first to obtain for rulers, men who possess most wisdom to discern, and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust.” The means to achieve this virtue are “numerous and varied,” including “limitation on term of appointments.” But how to keep men virtuous is never specified in the detail we might expect for republican government.

The difficulty of maintaining a virtuous citizenry has led, today, to our weak institutions. They need a repairman, but no one seems interested in that responsibility. New congressional members boast of investing their resources in “comms,” with little focus on contributing seriously. But we should become interested in being repairmen. To keep our legislators virtuous will start with the faith, good work, and honest dealings that we exercise in our own lives, and that we in turn demand of our representatives. In our conduct and in our expectations, we must answer in the affirmative two questions: Do we still have the capacity to choose well those who represent us? And do those who represent us possess the integrity to reclaim the constitutional authority and prestige of the U.S. Congress?

This piece originally appeared in The National Review