The first task confronting conservatism is defining what precisely it wants to conserve. In America, that project must begin with the Declaration of Independence, the U.S. Constitution, and the type of legal, political, and moral order these documents protect, guarantee, and depend on.
Of course, American conservatives regularly refer to these documents as the essence of what they are trying to defend against various progressive onslaughts. But appeals to the founding vary widely when it comes to the ends they have in mind. Classical liberals tend to defend a small-government tradition and focus on property rights and free commerce as the American constitutional standard. Social conservatives point to the basic divide of federal and state powers in our Constitution that permits local and state governments to regulate in favor of strong moral norms regarding family, sexuality, and religion. Paleoconservatives stress a tradition of local economic independence; strong, tightly knit communities; and isolationism in foreign policy. Neoconservatives define America as a propositional nation rooted in the second paragraph of the Declaration of Independence, and turn to this language as their guiding inspiration. Our newest faction, the national conservatives, seeks to creatively renew the achievements of George Washington, Alexander Hamilton, and the Federalist Party with a contemporary version of a national economic, social, and cultural vision for America.
But these ends typically deal with what policies we want to pursue, more so than what form of government we want to conserve. That latter question should come first. What, precisely, is the form of the American constitutional order?
The question points us toward the virtue and rationality that brought our governing institutions into existence. To describe those, conservatives need to articulate the constitutional form that preserves the institutional design and workings of the founders' creation. At the heart of this form is the act of deliberation as the primary mode of republican government in America.
OUR FORM OF GOVERNMENT
Joseph Bessette's Mild Voice of Reason offers a reflection on the political quality of deliberation worthy of The Federalist. Bessette argues that the Philadelphia Convention of 1787 and its subsequent defense in The Federalist built the constitutional order on the "republican principle" of popular sovereignty as the basis of government. Upholding this principle requires holding together and striking a balance among three elements: deliberation, energy, and majority rule.
When held together, these elements entail "deliberative democracy," which fosters rule by the informed and reasonable judgment of deliberative majorities that check and soften the unreflective sentiments of uninformed, immoderate, passionate majorities. That is, the citizenry reasons through its representatives, and "the cool and deliberate sense of the community" emerges through their debating the questions, problems, data, and logic needed to answer the policy challenges of the day.
This is not to argue that the citizenry should be governed by an elite Congress whose members can ignore the judgments of the people. Such was the charge made against the proposed Constitution by the Anti-Federalists, who argued that Congress would be a distant body that would stand over the people and rule them with abusive authority. The authors of The Federalist dismissed this concern, pointing out that the Constitution did not grant power to a congressional elite disconnected from the people; instead, it granted power to lawmakers who were accountable to the public, either directly through elections or indirectly (at the time) through state-legislative appointments. Thus, their deliberations had to be firmly grounded in the interests and desires of the American citizenry.
Madison recognized that deliberation is naturally endangered by factional interests. He admonishes readers in Federalist No. 42: "[T]he 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."
Madison and other proponents of the new Constitution had become keenly aware of the dangers to deliberation thanks to the new state constitutions. Although these constitutions had implemented robust forms of republican government following America's declaration of independence, and state legislatures contained plenty of representatives with divergent opinions, the passion with which those opinions were discussed threatened the republican experiment as a whole. In state after state, deliberation had broken down in favor of the rough justice of democracy, with concerted efforts by majorities to override the rights of minorities. In those legislatures, Madison saw faction and all its works, devoted to denying justice to a host of lawful claimants who merely stood on the wrong side of legislative mobs.
The crux of the problem, Bessette asserts, was the tension between deliberation and majority rule. Deliberation places a premium on reason, order, information, and commonality; in order for deliberation to take place, members must be willing to study, reflect, discuss, learn, and admit when they are wrong. Such qualities are not evident in many individuals, much less in mass assemblies governed by pure democracy, representative or otherwise.
The chaos of the 1780s taught Madison and other framers that their constitutional design must include institutional features to foster and protect deliberation from the vicious arts of faction. In Federalist No. 10, Madison's famous solution to the intractable problem of factions is not to squelch them, which would require oppression, but to extend the sphere of representation, and then "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 their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." There would, in fact, be a clashing of interests in this arrangement, and the majority opinion would eventually win out. But the deliberative process, Madison believed, would mean the difference between unrestrained factional impulses and a tutored, seasoned, deliberative opinion holding sway.
The framers thus infused their constitutional design—particularly Article I—with features intended to compel officials to deliberate. They began by delegating all federal lawmaking authority to the Congress, ensuring that only the people's representatives would be authorized to draft and adopt new federal laws restricting liberty. They then went to great lengths to make lawmaking difficult. The Congress would have the authority to pass laws, even statutes that abridged some liberties, but only if members successfully convinced majorities in each house to vote in favor of, and the president to sign (or decline to veto), those laws. Garnering the number of votes necessary to pass a bill would require members to debate, persuade, negotiate, and compromise with one another—put simply, it would require them to deliberate.
The American framers thus fashioned a deliberative republic—one that would inform and guide the constitutional order through the rocks and shoals of public life. Our better ordering as a people over time would come not via dictates from on high, but through a public discussion process shaped by representative institutions that, even as they received opinion, would also moderate and refine it, thereby cooling passions and calming tensions. The goal of this framework was to encourage elected representatives to deliberate well, and to turn opinion into policy that amounted to more than simple majoritarianism.
OUR TRADITION DERAILED
As anyone who follows politics today might observe, we have strayed from this model since the founding. Progressive scholarship and political action have contributed significantly to this development.
Since the early 20th century, progressives have denied the excellence of America's deliberative constitutional inheritance. They have sought instead to empower the president and administrative agencies to run the state, sometimes backed by a supportive judiciary, and to advance a moral and social order of egalitarianism and secularist, autonomous individualism. Their project proceeds through the constant growth of regulatory and judicial power, which tends to demean our citizenship as we become inured to direct federal management of our lives. Political power is not only vastly centralized, but removed from the people; it now stands over us rather than among us. Much of this program was not produced by Congress, but occurred through administrative rules and court decisions that unlocked or extended the power and reach of federal law in unreasonable ways.
The bureaucratic and judicial decisions accompanying the Civil Rights Act of 1964, as well as the Environmental Protection Agency's (EPA) recent effort to use the Clean Air Act to remake America's energy industry, are prominent examples of Americans being governed by rules that evaded our deliberative lawmaking process. Though many others exist, these two instances can shed light on the decline of Congress as an institution, the resulting decline of deliberative politics, and the shadow this casts on republican government.
In terms of the Civil Rights Act, Shep Melnick's voluminous scholarship on the administrative rules derived from the act documents how both the courts and the federal bureaucracy ensured that this landmark legislation became a source of nearly plenary judicial and executive power that remade our regime. Melnick does not dispute the need for the Civil Rights Act, or the need to enforce it to ensure that minorities and women are not subject to discrimination. What he contests is our extra-congressional institutions' creative application of its provisions, which has changed how Americans work, think, and speak in ways that reach far beyond the original intentions behind or plausible meaning of the statute.
According to Melnick, Congress deliberated over the Civil Rights Act to produce a set of outcomes that were more consistent with a color-blind enforcement regime. Later on, unelected bureaucrats and judges produced rules and decisions ostensibly grounded in the law that led to a different, race-conscious set of outcomes. For instance, Title IV of the act contains color-blind provisions protecting students from discrimination based on their race. And yet these provisions were subsumed by the impulse to achieve racial integration when the Supreme Court unanimously approved the busing of black students to white-dominated schools and vice versa in the 1971 case Swann v. Charlotte-Mecklenburg Board of Education. This led to nearly three decades of nationwide busing for racial balance without the consent of a majority of the people's representatives.
Education was merely one of several arenas into which the judicially driven civil-rights state spread. Drawing on Melnick's work, Christopher Caldwell in The Age of Entitlement discusses the "disparate impact" theory announced in the 1971 case Griggs v. Duke Power Company.
In that case, the Duke Power Company required employees to achieve minimum scores on two aptitude tests in order to advance within the firm. A disproportionate number of black employees relative to white employees failed to meet the threshold score. Even though the company administered the tests with no racist intent, the Court ruled that they violated the Civil Rights Act, reasoning that the "absence of discriminatory intent does not redeem employment procedures...that operate as 'built-in headwinds' for minority groups." "[T]he Griggs decision," Caldwell observes, "made clear that the government was now authorized to act against racism even if there was no evidence of any racist intent. This was an opening to arbitrary power. And once arbitrary power is conferred, it matters little what it was conferred for."
The federal courts' decisions, coupled with various executive orders, revised the Civil Rights Act to demand something that Americans, says Caldwell, "would never have approved: an explicit system of racial preference." In fact, according to survey data, even most black Americans do not support the use of racial preferences in various contexts, including higher education.
"The civil rights model of executive orders, litigation, and court-ordered redress," Caldwell argues, initiated a new era of government power and public thinking about how to engage in political questions that involve "fairness." Civil-rights talk became the language of power to challenge traditional roles of men and women, the morality of homosexuality, the standing of immigrants, and the rights of the disabled. He concludes: "The civil rights movement was a template. The new system for overthrowing the traditions that hindered black people became the model for overthrowing every tradition in American life."
More recently, the Obama administration attempted to sidestep an uncooperative Congress not through the federal courts, but through the executive bureaucracy. When Congress declined to implement a cap-and-trade regimen to combat climate change, the president directed the EPA to put together a rule to limit coal and natural-gas emissions in favor of renewable energy sources.
The result—the Clean Power Plan—encountered swift legal pushback and was eventually revoked by the Trump administration, only to be revived once again by the Biden administration. Finally, in the 2022 case West Virginia v. EPA, the Supreme Court rebuked the agency's attempt to leverage a rarely used provision in the Clean Air Act to enact a cap-and-trade program—one that Congress had repeatedly debated and rejected.
The plan mandated that the nation's energy productivity would shift from coal to natural gas, then from natural gas to renewables. To meet the rule's requirements, regulated plant operators "could reduce the regulated plant's own production of electricity, build or invest in a new or existing natural gas plant, wind farm, or solar installation, or purchase emission allowances or credits." Many coal plants would have closed under the rule. The government's own projections concluded that the rule would impose billions in costs, raise retail electricity prices, and eliminate tens of thousands of jobs.
The EPA was, in effect, unilaterally creating a regulatory authority that Congress had explicitly declined to grant it. Its move fundamentally altered the meaning of the Clean Air Act—the statute that the people's representatives had deliberated over and consented to—which had always been interpreted to require incremental reductions in pollution from existing energy sources, not to force wholesale changes in the nation's energy sector.
The Court found little evidence in the statute for the EPA's assertion of regulatory authority and repeatedly observed that Congress's debate and rejection of the plan meant that the EPA could not implement it on its own. Invoking the major-questions doctrine, the majority held that, absent specific congressional authorization, an executive agency cannot adopt a program that inflicts dramatic consequences on the national economy.
If the EPA's actions had been allowed to stand, we would have been right to ask why Congress exists at all. Can statutes, rarely used and without specific textual language that authorizes a given regulatory program, be drawn upon to comprehensively reshape something as vast as America's energy economy?
According to the dissenting opinion, the answer is yes, because the EPA's remit involves ensuring that the air is continually cleansed of pollutants. Yet under such an interpretation, vaguely written legislation could offer the necessary springboard for an increasingly rigorous set of environmental controls. Should this become the norm, Congress could simply issue open-ended legislation that administrative agencies would then shape according to the politics of the times. Inviting unlimited means to achieve generally worded objectives would eviscerate any notion of meaningful legislative authority, fail the basic premise of our constitutional order, and undermine the mechanisms by which the American people, through their representatives, deliberate and come to a consensus over the laws that govern them.
Progressives assume that the president and his administrative state, backed by a loyal Supreme Court, can efficiently identify and reflect the national will. But as these two examples illustrate, neither the executive nor the judiciary is equipped to live up to those expectations. A single executive can hardly embody the countless competing values and interests found within our extraordinarily diverse republic. And while the federal judiciary may consist of numerous judges, these officials are appointees; they are not representative of, or directly accountable to, the people. Governance by these extra-congressional branches results in rules that reflect not the product of a deliberative democratic process, but the very kinds of immoderate factional impulses that the framers sought to soften by channeling them through the lawmaking process. This tends to lead to the worst forms of partisan animosity, as recent administrations have proven on countless occasions.
OUR COMPLICIT CONGRESS
As outlined above, the framers designed our legislative system to compel members to deliberate over proposed laws. This route may be inefficient, but that was the point: The various hurdles a bill has to surmount before becoming law compel members to engage in the sorts of discussion, persuasion, and negotiation that check factional passions and produce only those laws that can garner the support of a governing majority.
Unfortunately, in an effort to make lawmaking more efficient, lawmakers themselves have found ways to sidestep or undermine these hurdles. One method they've used is to transfer power from rank-and-file members and committees to congressional leadership. But James Curry argues in Legislating in the Dark that "this method of leadership comes with a cost." "In shutting most lawmakers out of the legislative process, stifling their voices, and keeping them in the dark," Curry writes, "leaders undermine the quality of legislative deliberations...in the House of Representatives." Building on Curry's remarks, the R Street Institute's James Wallner observes that "[r]easoned deliberation has nearly disappeared in the modern Senate as decision-making has gradually migrated from committee hearings and the Senate floor to informal and ad-hoc meetings of interested members typically held under the auspices of the party leadership."
Excluding most lawmakers from the legislative process may make it more efficient. It also allows most members to avoid negotiating with the other party or being involved in difficult trade-offs that risk angering their constituents. But by doing so, it undermines the mechanisms the founders put in place to incentivize deliberation. A representative who has no say in the legislative drafting or amendment process cannot give input on a bill on his constituents' behalf. And voters can hardly hold their representative accountable through elections when he had no chance to participate in crafting the laws.
The weakened state of our political parties in Congress has also contributed to the breakdown of the legislature's deliberative capacity. The parties once served as instruments through which various factions could negotiate with one another and form alliances to secure majority support for legislation. Yet today, neither party seems willing or able to engage the more prudential and restrained task of expanding its lawmaking coalition: That would require something more than a politics of thumos, aggression, hostility, and endless accusations of bad faith. And since both Republicans and Democrats have discovered they can bring their most loyal voters to the polls more effectively by demonizing the other party than by convincing more people to vote for their candidates, neither has an incentive to put together a realistic policy platform amplified by prudential and persuasive rhetoric that appeals to actual governing majorities.
Today, our nation's premier deliberative body has become more of a platform for politicians to audition for cable news than a forum for spirited debate and negotiation. As a result, it now exhibits paralyzed impotence on crucial issues. While our legislature languishes in stalemate, our capacity to deliberate as a people has broken down, and factional tensions have escalated dramatically as a result.
RELEARNING TO DELIBERATE
Today, even arguing for a return to deliberative government seems naïve. This is not only because we so rarely think about forms in our political life, but because our politics feels so intensely divided. We have come to assume that a deeply divided country produces a divided Congress, and that this division explains what has become of our national legislature. The gradual accumulation of strength in party leadership and the diminution of prestige in legislative committees, not to mention individual members, looks like a natural outgrowth of intensifying partisan rancor. Lawmaking is always informed by party considerations, but it has now become utterly ideological, and therefore also shortsighted.
This development has culminated in derelictions such as Congress's failure in the last several years to hold budget debates regarding each major federal department. Instead, it funds the federal government through omnibus packages. Other major legislation frequently comes from leadership without much input or debate in committees and is voted on in an increasingly short amount of time. This is not government by deliberation; it more closely resembles oligarchic rule.
Congress itself often seems unreformable. New members of Congress now boast of investing their resources in their communications teams, with little focus on becoming an informed and contributing member of our nation's premier legislative body. Few of our representatives seem to consider restoring Congress's deliberative capacity a priority.
And yet, a functional legislature is essential to building bridges in such times. The American Enterprise Institute's Philip Wallach wrote in this journal in 2021 that
it is precisely because we no longer have vital deliberation in our representative bodies that our citizens have become so ready to forsake each other, fantasizing about secession or civil war rather than believing Americans who are sharply divided in their beliefs and interests can nevertheless work through the nation's problems together.
Congress, he continued, should be where diverse elements together yield "previously unconsidered compromises" as well as "institutional arrangements" that afford us opportunities to work through disagreements. Absent discussion and deliberation, politics becomes a fixed-pie struggle, replete with "palace intrigue" and people lobbing insults like grenades, to use Wallach's apt terminology.
That partisan times call for more cross-partisan deliberation would have been obvious to Americans of the founding generation. By the time the Philadelphia Convention of 1787 took place, representative assemblies had been an integral aspect of every American colony's history dating back to the Virginia General Assembly in 1619. Consider the Mayflower Compact of 1620, which states that the colonists will "combine ourselves together into a civil body politic" to "enact, constitute, and frame such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony." Republican legislatures as forums for deliberation are thus part of our fabric as a constituted people. We can ignore this history, but we will surely become a different kind of people if we do.
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. But a Court imploring Congress to legislate matters little if lawmakers have no desire to engage in a deliberative procedure that results in legislation addressing the crucial public questions of our time.
Our inability to engage in politics through representative deliberation commits us to a perpetual loop of grievance and war-making. The opportunity for deliberation, therefore, must be re-cultivated.
In Madison's defense of the Constitution, he identifies the "defect of better motives" found in human nature as a predicate to his call for "auxiliary precautions" to slow down immoderate enthusiasm and ambition within the government. But we can also take a measure of confidence in Madison's appreciation for the virtue and rationality in human nature. Indeed, he continuously points to virtue as the missing premise of our deliberative regime—one that is crucial to its maintenance and rigor.
Our difficulty remains the standard Madison sets forth in Federalist No. 57: "The aim of every political constitution," he writes, "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." Madison then states that the means to achieve virtue are "numerous and various," but he does not offer much in terms of particulars.
As Joseph Bessette reminds us, our political institutions are grounded in popular sovereignty—the notion that "We the People" are the source of all political power, and that the state's authority was created and is sustained by our consent. The responsibility to keep those who represent us in government virtuous, therefore, ultimately lies in our hands.
To restore our capacity for deliberation as a people, we might begin by outlining some ideas we as Americans hold in common as ends of government: economic growth; limits on government; a vaunted military; family policies that assist with the costs of raising children without displacing the family; equality, not equity, under law; an affordable and sustainable welfare state; education for students, as opposed to ideological reinforcement; and immigration policies that uphold territorial integrity, insist on American citizenship, and are tailored to the desires of the electorate. This list could be much longer, but its purpose is to show how articulating certain ends, advanced with wisdom and good faith, could secure more than divided government.
Deliberation also requires shared facts, which cannot emerge if we constantly resort to demeaning and damning language when discussing the other party and its members. Both parties have been guilty of this, and politics in America tends to reward them with partisan devotion. However, our inability to appeal to shared facts on a host of policy judgments prevents us from deliberating toward shared ends. Restoring a sense of shared facts will require us to exercise good faith, do good work, and engage in honest dealings with those with whom we disagree—and to demand the same of our representatives.
Finally, those engaging in the political process must cultivate a certain humility, and be willing to listen, study, and evaluate arguments while keeping factional impulses at bay. Crucially, they must also be willing to admit when they're wrong and to forgive and receive forgiveness without waving the bloody shirt.
This is admittedly a tall task. Deliberation in Congress has come under enormous strain in recent decades, leading our politics to grow inhumane and unworthy of a free people. It is easy to dismiss deliberation as a naïve or discarded ideal. But to do so is to embrace the alternatives—and those are not what any American should want.
This piece originally appeared in National Affairs