Rekindling Constitutional Ambition

Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.

And causes for worry on this front are by no means limited to the presidential contenders. They are evident in our institutions, and not only those dominated by the Left. Indeed, the willful weakness of the Congress (which has been largely run by Republicans for two decades) and of the state governments (most of which are run by Republicans) may be the most significant problems our system confronts. Congress routinely delegates its power and abides executive overreach for policy or political ends. And while some state leaders have certainly pushed back against federal overreach at times, on the whole the states have accepted the bargain of “cooperative federalism”: From healthcare to education to transportation and beyond, federal dollars flow to the states in return for power flowing to Washington.

In searching for solutions to a constitutional imbalance, it is natural that we should consult the views of the system’s architects, the Framers of the Constitution. We are accustomed to looking to them for wisdom about the interaction of human nature, power, and politics, and so for a sense of how our system should work. Our usual way of doing so is to compare their descriptions of what the Constitution was designed to do with what our government now does. But it might be worth our while, in this challenging time, to also think a bit more about the assumptions they made regarding the proper attitudes of the people who work in the institutions they created. We might then get a sense of what potential reforms could help imbue policymakers and others with these attitudes.

To do this, we would be wise to consider not just what the Framers got right about how the system would work, but also what they seem to have gotten wrong. Over the past few years, I’ve had the privilege of studying portions of The Federalist with groups of talented undergraduates (and this summer also with a group of smart young congressional staffers), with an eye to how Publius regarded political actors. We have explored in particular what assumptions about human nature underlay the Founders’ expectations—some fulfilled, others not—of how their newly devised system would function.

Two of Publius’ most boldly stated expectations—one expressed by James Madison and the other by Alexander Hamilton—have held up particularly poorly. Each involves an assumption about institutional relationships in the constitutional system that is rooted in an assumption about human nature. The first is Madison’s assertion, in Federalist 51, that “In republican government, the legislative authority necessarily predominates.” And the second is Hamilton’s assertion, in Federalist 17, that “It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”

These are confident and essentially unqualified assertions. And they speak directly to two of the most significant problems with our constitutional system today: the weakness of the U.S. Congress relative to the other two branches of the federal government, and the weakness of the 50 state governments relative to the federal government. Both problems flatly defy the Framers’ expectations. Hamilton and Madison were not expressing hopes or aspirations but assumptions upon which some of their constitutional theories were premised, and yet today we would have to say that those assumptions are not correct. To see why, we should consider their roots.

Hamilton’s view that the states would tend to be more powerful than the federal government rests on an exceptionally interesting and revealing assumption about the souls of politicians—and especially of those who would rise to national politics. Answering those who worried that the federal government created by the new Constitution would tend to invade the prerogatives of the states and take over their work, Hamilton writes of how unlikely it is that national political leaders will want any part of the mundane, everyday kinds of administrative tasks engaged in by the state governments.

As he puts it in Federalist 17:

Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

It is difficult to overstate just how odd this argument sounds to our 21st century ears, and it has surely proven to be wrong. Hamilton is not saying that politicians at the national level should not involve themselves in the governance of mundane matters; he’s saying, more than a little blithely, that there is no danger they’ll even want to.

That is a serious failure of imagination, surely rooted at least in part in Hamilton’s own Napoleonic ambitions. But it suggests that the federal government sometimes intrudes into the kinds of governing questions that the Framers thought would remain with the states not (as one might have thought) out of excessive political ambition or willfulness, but out of something like the opposite: a kind of failure of ambition, a narrowness of vision that keeps them from seeing what the national government should be about.

A similar dynamic is at work in Madison’s prophecy that the legislative branch would necessarily be the prevailing one in our system of government. The father of the Constitution was guided by that assumption as he thought about what ought to be the relative strengths of the federal branches, and it led him to look for ways to weaken Congress while reinforcing the executive.

As Madison writes in Federalist 51:

In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

This, too, has to strike the modern ear as quite bizarre, an alternate universe from the one we inhabit.

Notice how closely this prophecy, and its failure to materialize in our time, resembles Hamilton’s: Both of them rest on an assumption of intense ambition among federal officeholders. Our constitutional system is designed to contain and channel that ambition—to force it into a constructive conflict with the ambitions of other constitutional actors so as to restrain them all and enable them to reach collective judgments indirectly.

In the absence of such ambition, the system breaks down.

And the two prophecies have more than that in common: It is in part because the federal government today involves itself in the minutia of administration (including “the administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature,” and much more besides) that the administrative state has grown, and in turn has weakened Congress not only by empowering the executive but also by diminishing the role and therefore also the ambitions of legislators.

Meanwhile, as the federal government has usurped for itself some of the key prerogatives of the states, political leaders at the state level have themselves lost some of the motive for ambition for their own institutions and stations. They have willingly yielded power to the federal government in some key arenas (nowadays education and health above all) just as members of Congress have yielded power to the executive.

The imbalance of our constitutional system is therefore in some meaningful part a function of the miniaturization of the ambitions of all involved. This is not how we are used to thinking about our problems, but it is a way of thinking about them that might help us consider some mitigating reforms. Ambition is not, it turns out, simply a natural fact—it is also a response to institutional circumstances. As Madison himself put it (also in Federalist 51): “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others” (emphasis added).

Ambition itself, a motive to protect one’s prerogatives, must in some part be given to the people involved, not just expected of them.

What might that mean now? First, recovering Congress’s self-respect and ambition is essential, and could be pursued in a number of ways.

Reform of the budget process to make it more of a legislative process (one divided into small, discrete, concrete steps) rather than an executive process (one consolidated into a single, large decision) would help give Congress more ownership of it, and therefore some pride and ambition about it. It would also bring the functioning of the administrative state more under congressional control. So would a recovery of the dignity of the proper work of the national government—the exercise of the powers enumerated in Article I of the Constitution. Hamilton’s insight suggests that a lack of respect for that work may have much to do with Congress’ inclination to pursue other work.

At the same time, a recovery of the ambition and self-respect of the states could be advanced by curtailing Washington’s meddling. A recovery of a more robust federalism, in which state and federal roles are more strictly distinguished, would not only improve the outcomes of public policy but also help rebalance our system of government. And it would help do both by giving state policymakers more ownership of (and therefore more pride in) the mundane work of everyday governance, even as it redirected the attention and the self-regard of national political leaders toward national questions.

These are, of course, only the most general lineaments of reform. And there has been no shortage of work done on what a reassertion of the Congress and a decentralization of public policy could look like at the level of policy particulars. What seeing these questions through the lens of the Framers’ false prophecies makes clearer, however, is that a shortage of constitutional ambition is an important element of the dysfunction. Rekindling it will be crucial to fixing that dysfunction.

Such a rekindling is a long-term project, one that does not seem likely to be greatly advanced in the near term given our electoral options this year. But elements of it could certainly be advanced by congressional and state actions. Nor is having a long-term objective a bad thing. One advantage of seeing our challenges in terms of the delicate balance of our constitutional system is that it helps us grasp the system’s potential for flexibility and endurance—and that should give us grounds for hope. It should give us a way to resist the misguided sense of despair and the apocalyptic hysteria that seem to arrive like clockwork during every election cycle—and in this one more than most. That, too, is a gift the Framers gave us.

Yuval Levin

Yuval Levin is the editor of National Affairs and a fellow at the Ethics and Public Policy Center. He is the author of The Fractured Republic: Renewing America’s Social Contract in the Age of Individualism.

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  1. R Richard Schweitzer says

    First Installment:

    From the 1941 Ed. of Walter Lippmann’s “The Good Society” (quotations omitted):

    “For the enactment of a new law is a judgment rendered for
    certain interests and against certain others. If the new statute
    changes, let us say, the law of contracts or of real property or of
    the employer’s liability, it is a judgment rendered by the legis-
    lature among contending private interests. If the statute
    authorizes public officials to levy taxes and raise armies, it is a
    judgment rendered by the legislature as between the govern-
    ment and private interests. If the statute establishes a priv-
    ilege, bestows a franchise or charters a corporation, or gives a
    patent of monopoly, it represents a judgment placing the state
    in partnership with certain private interests as against other
    private interests. But in modern times men have come to think
    that because there are practical reasons for separating and
    specializing the legislative and judicial functions, they are
    morally and psychologically distinct.

    They are not. When the legislator ceases to think of him-
    self as an impartial judge among contending interests, he soon
    adopts an imperial view of his function. He ceases to judge
    causes among the people: he issues commands to the people, and
    regards himself no longer as the representative of their true
    will but as the providential contriver of their destiny. Against
    this imperial view of the state, which comes down from the
    Byzantine emperors and was revived in Europe by the study
    of Roman law during the Renaissance, the liberal movement
    has always fought. The imperial view is that the official de-
    crees the law according to his will rather than that the official
    finds the law by judging causes. This is the legal theory of
    absolutism. To that theory the modern collectivists and all the believers in legislative or executive supremacy have re-turned.
    The growing complaint of legislators that judges are legis-
    lating is the obverse of the fact that lawmakers have ceased to
    be judges. Legislators have come to think of themselves as
    the lineal descendants of the Ceasars, and the heirs of their
    sovereignty. Against this revival of the absolute state, the
    courts have sought to provide a refuge. They have given
    refuge to many interests that probably ought not to have it.
    They have also given protection to many vital human interests
    against the tyranny and arbitrariness of legislative majorities.
    But their “judicial usurpation” would not have received so
    much popular assent had men not realized that its complement
    was the growing dictatorship of lawmakers. Yet two wrongs
    do not make a right. Both are perversions of the liberal
    state, arising from the failure to recognize that the legis-
    lative function is only a more generalized form of the judi-
    cial..

    The separation of the two functions is a question of expediency rather than of principle.
    p. 289

    In broad
    terms we may then say that liberalism seeks to govern primarily
    by applying and perfecting reciprocal obligations, whereas
    authoritarianism governs primarily by the handing down of
    decrees. The liberal system seeks to define what one man
    may expect from all other men, including the officials of the
    state, and to guarantee that expectation. The authoritarian
    system permits the official to declare what he wishes other men
    to do and to enforce his will.
    299
    The prejudice which liberals entertain against the multiplica-
    tion of government enterprises has come not from their basic
    principles but from practical experience of how difficult it is to
    keep a powerful bureaucracy under the law, how great is its
    tendency to take to itself the attributes of a Byzantine emperor.
    300
    It would be mere confusion of mind to argue that these
    are not functions of the liberal state. They are inherent in
    its primary function, which is to adjust the social order to the economy. ”

    ***Here is a definitive misconception which arises from failure to observe that the economic system evolves as “part and parcel” with and of the social order; that it does not spring into existence and take its forms from factors other than those which determine the development of the social order. RRS 5/15/2012***

    [Lippmann here states that the primary function of the Liberal (classical sense) State is to adjust the social order to the economy, which presumes that the economy has derived from forces separate and distinct from those which have operated on the formation of the social order.]

    More on “ambitions” as motives to follow.

  2. Paul Binotto says

    Everything this essay asserts makes a great deal of sense; I would never have thought it possible, and in fact its counter-intuitive (as truth often is), that “ambition” would be the element lacking, or that more of it is needed (however noble), to repair today’s Congress – to the casual observer, there is little else but raw ambition to be found within the precincts of D.C.

    I would have guessed the need to constantly fund-raise and campaign was at least partially to blame for the dysfunction and distraction from getting the Peoples business done. Or, that the over-supply of (mostly bad and over-reaching), laws is directly proportionate to the over-supply of (bad and over-reaching – I read somewhere that Hillary failed the D.C. bar exam), lawyers.

    Or that Pennsylvania’s archaic Liquor Control Laws forces me to drive five hours to the Finger Lakes Region of New York to purchase my domestic Riesling of choice, because no one has yet taken up the defense of my constitutional right under the Commerce Clause (I presume), to have it legally shipped to my home, and it is out of thirst for it that leaves my tongue, here, clinging to my cheek. But this has little to zero relevance to repairing Congress, of course, and I only raise it to see if Gabe is listening.

  3. Scott Amorian says

    The Federalist Papers are, of course, marketing materials, not documentation of what the Framers in general believed. I find them most interesting with respect to what a few guys thought the public wanted to hear in order to get enough public support to ratify the Constitution.

    There are much better sources for extracting the thoughts of the Framers.

    Let me prophesy in place of Hamilton and Madison: The idea that the checks and balances needs firming is correct. But that can only happen if the power of party and wealth over office holders is broken. The senate needs the secret ballot to reduce partisan influence. The president needs to be elected by secret ballot exercised within the electoral college itself. Without those reforms the party leadership, inspired by the most wealthy, will continue to dominate government.

    What we have now is a semi-single party system, similar to what places like China has. Except the party dominance shifts in segments between the two parties depending on which party dominates which branch and chamber. At present, the check on ambitions occurs between the parties, not between the branches and chambers. That is the problem in a nutshell.

  4. gabe says

    At the level of dissection presented in Levin’s essay, it is a somewhat simple task to find fault with the Framers and their conception(s) of institutional / constitutional ambitions.

    Yet, let us recall that what the Framers relied on was some solid empirical evidence that a) the Legislative would indeed be the most dangerous, the most hostile to the liberty of the People, b) that there would indeed be little to fear from a “centralizing” government and c) that the States were far more likely to infringe upon the prerogatives of the National government and that of other States.

    1) Examine the behavior of State Legislatures during colonial / up-to-ratification times. The level of abuse of liberty, the amount of corrupt deal-making (voiding of contracts, monopolies, restrictions on liberty of the citizens), etc would shame even the most corrupt of current day democrats.

    2) How well did the National Government fare under the Articles? Was it not starved, semi-castrated by the maneuverings of State Legislatures. Indeed, it may be argued that the very rhetoric by Madison and Hamilton on the issue of the weakness of the National Legislature was deployed as a “campaign slogan” to assuage the fear of the several State Legislatures that the Congress would intrude upon the ability of State Legislatures to abuse the people.

    3) The effort, as you may recall, was aimed at primarily “strengthening” the core of the Central government, which was weak and defenseless under the Articles, and although obvious to all contemporaries, was still viewed with suspicion by many (anti-Feds, etc). How is this so? States feared not the concept of a Congress; rather they feared that their own little feifdoms would be placed under review and restriction.

    It would seem to me that Madison was correct – the Legislative was to be feared – and it still is.

    No, what would appear to be absent from the above analysis is this:

    The underlying view regarding human nature held by Madison did not stop with “ambition” – ambition had as its predicate – virtue. The assumption that men / Statesmen would be of the highest virtue is made by Madison on any number of occasions. (I’ll skip the quotes). It would be virtue that would guide, or as some prefer today, “cabin” ambition.

    It should not be too difficult to recognize that without virtue, “constitutional” ambition is IMPOSSIBLE.
    Levin is correct to point out that ambition has been “miniaturized” – clearly, it has. One need only look upon the miscreants of both parties that comprise our Legislative Branch where all ambitious energies appear to be directed at retention of power, personal and professional.

    As I’ve argued before, “institutional”, (or *constitutional*) ambition has been supplanted in the Legislative (and Judicial / Executive) by a personal ambition of the most venal, selfish order. We are ruled by a legion of “pygmies” whose reach is even shorter than their grasping outstretched hands.

    Below, R. Richard alludes to the fact the the Legislative is, at root, a judicial function. He is correct. What these pygmies, with their miniaturized and highly personalized ambitions have done is to dispense with the quasi-judicial function along with their Legislative function – “and for what…”, as Thomas More asked of Richard Rich, for a cheap but favorable headline.”

    But we have no more Mores, do we?

  5. R Richard Schweitzer says

    There is so often folded into the words that express the penetrating thinking of Yuval Levin the “indicators” of something, perhaps even more essential, than the subject of his disquisition.

    He Writes:

    “But it suggests that the [legislators of the] federal government sometimes intrude[s] into the kinds of governing questions that the Framers thought would remain with the states not (as one might have thought) out of excessive political ambition or willfulness, but out of something like the opposite: a kind of failure of ambition, a narrowness of vision that keeps **them** from seeing WHAT THE NATIONAL GOVERNMENT SHOULD BE ABOUT.”

    Those final seven words are the point of departure for all else that is said.

    More on ambitions as motives to follow.

    • gabe says

      Richard:

      You are quite right. Levin is absotively spot-on (as usual) with the last clause of that comment.
      It is the transformation, or in his words, the absence, of a politically *proper* ambition that has caused us to lose sight of (discard) the proper functions of government.

      “L’état c’est moi’ may not, nowadays, be uttered but by their actions it is clear that they have managed to convince themselves that what is in their interest IS in the interest of the Republic. (and that is being kind to them).

  6. R Richard Schweitzer says

    Legislators

    Ambitions, motives and “incentives:”

    Since it is still “on screen” let’s include the context of Michael Greve’s 10/21/2016 post in these considerations.

    He wrote:

    ” Either you figure out a way to re-connect **legislators’ incentives** to the interests of the –institution– . Or else, you adjust the institutional arrangements, especially including the arrangements to check the executive, to the realities of party government.” [**& — added

    Which led to the query:

    “After all, what ARE “legislators’ incentives?” ”

    Perhaps one way to understand incentives, generally, is that they modulate motives.
    Ambitions are particular motivations, generally understood as quests for attainment of personal objectives, such as status, accomplishment, creation, etc.

    Both Greve and Levin observe those motives in the context of the “institution” that the Federal Legislature has become (to which comments at the Greve piece are addressed). It is an institution of thousands of the “unelected,” who conduct its major functions. Given what the institution has become, the “ambitions” of many (most?) who become legislators end at membership and participation. From the course of human nature, other motivations continue their roles – yea! even in the lives of legislators.

    Shall we devote our energies to changing human nature and thereby attempt to change the “institution” and its functions?

    If (not a warning) history is a guide, we should note that institutions (evolved from social instrumentalities and facilities) have not been transformed or restored to their origins by conversions of the motivations of their members (or efforts to those effects); but, rather by transcendence of countervailing facilities responsive to social needs.

    The Constitutional framework, which was established as a facility countervailing absolute parliamentary sovereignty, with authorities distributed regionally, and thus under direct local delegation of those affected, has now become a centralized authority with an institutional structure. That structure shapes the motivations of the members of, and participants in, its legislature – just as it has the members (and formations of factions) of Parliaments that possess absolute sovereignty.

    The requirements are not changes in the motivations of the members of, and participants in, the legislative institution as it exists; but rather the establishment of countervailing facilities through which those other “desired” motivations can take effect to meet social needs. We have seen the early rumblings of the recognition of social need (still inchoate) and adhesion to certain principles for the original concepts of the Constitution.

    We are not going to get there by trying to change human nature. But we can create other countervailing facilities which will affect how that human nature is expressed and shared.

    • gabe says

      Richard:

      See Greve’s comments (reflecting your own, BTW) on a “Super” Administrative Court in his piece today. This would be a “countervailing” facility that, one hopes, may alter current motivations.

      Yet: We should discuss this one day – the picture presented on the course of change over time, i.e.., a somewhat (generally speaking) gradual and *un*-directed transformation into a “centralized” facility or institution is, for my mind, a bit too passive. Purposive action was employed / deployed to effect the changes we observe today AND that *purpose* did include a change in the motivations of the various legions of factotems inhabiting the FAS (also the People).
      Can not purposive action of a countervailing nature be deployed to change those institutions with the concomitant result of changing the motivations of some of the players.

      The Admin court may be an example. Take the Judicial function out of the Executive Agencies; place it in a separate Court and would not the Admin court engender some rather different motivations in the minds of its actors. would it not also, deprive the current Admin Agencies of certain powers / prerogatives such that their motivation for legislating may be somewhat tempered? – even if the desire initially remained?

      As for the Legislative, it would appear hopeless at this time. Short of imposing a limit of one term, nothing would seem likely to instill in them a proper set of ambitions.

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