“Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs ( https://www.aei.org/profile/yuval-levin/ ). Dr. Levin served as a member of the White House domestic policy staff under President George W. Bush and was executive director of the President’s Council on Bioethics.
He is the author, most recently, of “A Time to Build: From Family and Community to Congress and the Campus, How Recommitting to Our Institutions Can Revive the American Dream” (Basic Books, 2020) that Kirkus reviews as a “provocative, inspiring look at the underlying cause of our polarization and dysfunction’ ( https://www.kirkusreviews.com/book-reviews/yuval-levin/a-time-to-build/ ). In this essay, ‘Constituting Unity’, at Law & Liberty ( https://lawliberty.org/forum/constituting-unity/ , August 2023) a reader may grasp the essentials of Levin’s recent, important analyses.
Here is a precis of key ideas from the essay:
1 – We live in “an age of animosity … bitterly divided” as all Braver Angels know. This leads many to question how/if the US Constitution has failed; and, therefore, how to change it (as we hear frequently these days, for example, regarding the number of justices on the Supreme Court, or regulation of SCOTUS; regarding the operation of the Electoral College and Electors; regarding adding amendments to the Constitution: etc).
Levin suggests that it is not the Constitution that is failing but that we Americans are failing to understand and apply what the Constitution provides.
2. The Constitution’s stated aim – ‘to form a more perfect union’ – involves “modes of governance created by the Constitution [that] compel a fractious people to build coalitions and seek mutual accommodation.’ Levin calls this a Madisonian Unity: “Madison insisted that disagreement about fundamental questions is inherent and unavoidable in a free society”, including about “the moral boundaries of American political life …the nature of the human person… the proper organization of society … political and policy choices.”
3. Therefore Constitutional society
“works by setting competing interests and powers against each other, which critics sometimes caricature as substituting an almost mechanical proceduralism for morally substantive civic formation. But that is precisely wrong. This approach actually begins from the insight that, in order to be properly formative, our politics must always be in motion—that moral formation is a matter of establishing habits, and that civic habits are built up by civic action more than by a proper arrangement of rules. The different interests, priorities, and power centers set against each other in our system do not rest against each other, like interlocking beams holding up a roof. Rather, they push, pull, and tug at each other and unceasingly compete for position. … This leaves our political system always feeling unsettled—like no cause is ever truly won or lost. But it is also why that system is so often able to create more winners than losers in divisive struggles. Because almost no victory is ever complete, almost no defeat is ever total either.”
4. Levin introduces that Constitutional society, in this dynamic struggle, is not just about the struggle (that can be marked by rancor and anger, anxiety and fear, disruption and disorientation) but is also about “facilitating national feeling and unity.”
5. Levin smartly and concisely identifies how the Constitutional federalism – through its key institutions – can work well to facilitate ‘a more perfect union’. This section of the essay – ‘Unity in Practice’ – serves as a sort of tutorial that you must read even it you don’t read the rest of the essay. Similarly, the first two (long) paragraphs of Jefferson’s First Inaugural ( https://avalon.law.yale.edu/19th_century/jefinau1.asp ) are a tutorial – given by a Founder, near the Founding – that may be worth reading along with this section from Levin’s essay.
6. Levin argues that early 20th century ‘Progressivism’ severely challenged the Founders’ Constitutional federalism, believing that it was no longer possible in the modern era, and that society required an “integrated national vision”. We should acknowledge the threats of that time including a world war that used early examples of vastly destructive technological warfare that appeared capable of fast-moving anthropogenic genocide (different from the natural or divine threats known to the Founders). So, Levin says
“ progressive program is not senseless, and its critique of the Madisonian vision of political life is not crazy. But it is mistaken, and profoundly unhealthy for our fractured polity, because it ignores the imperative to build cohesion in a free society. The progressives insisted that the American system was not up to the challenges of modern life. But their critique ignored what may well be the preeminent challenge of modern life: the challenge of multiplicity and diversity, and therefore of division, which Madison saw far more clearly than they did. Progressivism implicitly rejects the legitimacy of that diversity. It assumes that divisions in the American body politic are not inherent to a free society but are functions of some people choosing to pursue their private advantage at the expense of the public good. It intimates that unity is the natural state of our society but various “special interests” insist on pulling the country apart, so that what we require from politics is a consolidated voice of the public that will speak up for the whole.”
While we should acknowledge the new threats early 20th century society experienced we should also acknowledge some of the worst mistakes of that ‘Progressivism’, including the American (and global) eugenics movement, legitimated and propagated through SCOTUS’ decision in Buck v. Bell ( 274 U.S. 200 (1927): https://supreme.justia.com/cases/federal/us/274/200/. Historical research reveals that the elite medical and legal supporters of ‘Progressive Era’ eugenics contrived to bring a case to the US Supreme Court in order to get the result that they got: legal authority to coercively control populations they considered inferior and/or dangerous. Buck v. Bell was used by the early National Socialist (NAZI) regime in Germany to justify the early phases of is eugenics programs.)
7. Levin reveals that the anti-federalist ‘Progressive’ impulse is not to identified solely with the Democratic Party leader, since “The most Wilsonian [‘progressivist’] congressional leader of the modern era has been Newt Gingrich, a Republican Speaker of the House. And its transformation in this direction has left Congress more divided, more partisan, and less productive.”
8. Levin’s discussion concludes with some ideas about reform:
“The progressive deformation of our constitutional system is not the reason we are divided. But it does explain why we think our Constitution can’t help us address our divisions… The unifying potential of federalism is rooted in its capacity to reduce the quantity of divisive questions that need to be resolved at the national level and to provide some space for a diversity of answers to such questions in the forms of different individual choices and communal practices. … reformers should look to distinguish state from federal domains, even at the cost of nationalizing some issues (like health care) if that makes it possible to localize others (like education)”.
In the legislative branch: “Reformers should want to make cross-partisan bargaining in Congress more likely, rather than (as too many of them now incline to think) making such bargaining less necessary.” [about which we may ask: what are the most effective bipartisan-working Congressional committees?]
In the executive branch: “A lot of executive overreach is a function of congressional underreach. There are some actions a president could take to rein in the worst administrative excesses—like subjecting the “independent” agencies to formal oversight. But ultimately, the sorts of changes most needed are not technical structural reforms like those that could be helpful in Congress, but rather forms of restraint and self-conscious circumspection by our presidents, rooted in an understanding of what the chief executive has to offer the cause of greater unity” [ about which we may ask: which candidates for public service in the White House are seeking ‘greater unity’?]
In the judicial branch: “they must resist the urge to inflate their own role and displace other key constitutional actors. And to gain more ground, they must rediscover their responsibility to police the boundaries of our constitutional structure, not just to curb the creation of new personal rights, and so to make the renewal of the rest of the constitutional system more plausible” [ about which we may ask: what are the boundaries – for ‘a more perfect union’ – of second amendment rights? of public health police powers? of political speech?]
Yuval Levin’s body of work helps consider questions about our society, as Braver Angels believe, without rancor, and toward ‘a more perfect union’.