The American Dream Lecture Series: The Constitution and National Unity

good evening and welcome to the American Enterprise Institute my name is Christopher Scalia and it is my great pleasure to present to you the first installment of an exciting new project from AEI, the American Dream Lecture Series, as part of the American Dream Initiative Aei's American Dream Lecture Series seeks to revitalize our nation's core institutions by inviting leading writers, scholars, and thinkers to address some of the most important cultural and social challenges facing the United States as we approach our 250th anniversary. of the founding of the United States. These conferences are an opport

unity

to ask what the health of our nation is. fundamental institutions and principles what threats they face and what prospects for reform are available in the wide variety and high quality of its featured speakers the

american

dream

lecture

series

will also continue the tradition of aei's bradley

lecture

series

that for decades enriched the policy conversations with high-profile lectures on the state of American politics and culture.

If you look at the tables in front of you, we have flyers listing some of the esteemed guests and the topics we have planned for the coming months. It's hard to think of a Better Speaker to kick off this new series that you all experience on one of America's most important political thinkers. He is the Beth and Ravenel Curry Chair of Public Policy, as well as director of social, cultural, and

constitution

al studies here at AEI and editor. -head of

national

affairs, he is also the author of several books and his next publication will be in the spring of 2024 in a basic book titled Letter of Unity.

It is the basis of his comments tonight. One of the reasons Yuval's work is so valuable is that it provides thoughtful and dispassionate solutions to the problems that beset our

national

institutions. His comments this afternoon are no exception, as they will help us understand how even in these exceptionally polarized days, when our

constitution

al order seems broken, the United States Constitution can still help us form a more perfect society. togetherness fostering cohesion and finding common ground after your comments Yuval will join me for a follow-up conversation and those comfortable chairs right there we will open the floor to the audience uh q a so please ladies and gentlemen, join me for welcome to Yuval's event for his comments on the Constitution and National Unity, thank you very much to all of you for being here and thank you Chris, I appreciate it and I very much appreciate that you are taking the initiative and launching this series, focused as they say in Various facets of the American

dream

.

AI, as Chris mentions, has a tradition of this type of lecture series. For many years, as you mentioned, Bradley's lectures were a wonderful source of inspiration and provocation here in Washington. I was able to attend many of the latter. uh, lectures in that series, I even gave one of the final Bradley lectures myself, so maybe the quality of the speakers was declining at the end, Chris, but they were a wonderful way to ask great questions and that's our hope here also. Our hope for these conferences is to start a much-needed conversation about the state of the American dream and to do so in a way that's countercultural, which at this point really means a way that doesn't start with the premise that the sky is falling and the future is purely bleak and that's all America has left is nightmares, that's not how we think here, we know that our country faces very serious challenges, but we also know that it brings some very substantial resources for renewal and strength and So, we have a lot of cause for hope, even though there's a lot of cause for concern, a lot of our work here is really about making that hope a reality, and in some ways, that's what the United States does in its best moment: turning hopes into reality. why the metaphor of the American dream is the correct way to think about how our country approaches the future and that is why it is a particular honor for me to give the first lecture in this series on the topic that I have decided to address for me is very connected with the American dream, even I would say that with my American dream I am an immigrant in the United States.

I was born in Israel. I came here when I was eight years old, so I grew up here actually, but as a naturalized citizen, I became an American at the age of 19. And I took the oath of citizenship in the federal courthouse in Newark, New Jersey, by the way, it's not the most beautiful place in the United States, in 1996 it was a big naturalization ceremony in which many people from many places participated and the judge retired federal officer who officiated after swearing us in, gave a very short speech. Yes, I clearly remember being disappointed at how short it was, but here I am, about 25 years later, telling you everything.

By then I was kind of a history buff and patriotic and I expected him to quote the founders and talk about Lincoln, but he didn't do any of that, he gave a very, very short talk, basically saying that from today on you have to think . about the United States in the first person plural that was the phrase he used you have to say we and us when you talk about the United States not they and them and that was all that was all he said um it made an impression on me that I would say for years after That's what I kept with me a little piece of paper that I had since that day, it was the receipt for my green card, so you hand in your green card to obtain your naturalization certificate and they give you back a small photocopy of your green card and on it they had written a sign first person plural question mark, um and then I wrote We and I underlined it twice and I kept this with me for years.

I lost it at some point during a move or something and I clearly wanted to think about what he had said um, what does it really mean? What would it take for us to think and talk about America in terms of us and I thought about it? I've been thinking about it for a quarter of a century. He has been at the center of everything. of my work in one form or another for my entire adult life, and that's partly because I've come to think that we is really a terribly important word in the American political tradition, it's the first word of that glorious second paragraph of the Declaration of Independence we consider these truths to be self-evident, it is the first word of the Constitution, we the people of the United States, and that is no coincidence, both documents are expressed in the first person plural because they are both examples of a people take charge of their common destiny as a nation and act politically together;

The Declaration expresses a common commitment to a set of ideals underlying a decision; an act of separation undertaken together; and the Constitution is based on that premise; embraces those principles, but does something that in practical terms might be even more complicated: it establishes a political framework for a society that generally agrees with those fundamental principles but disagrees with much else and doesn't even agree with what those principles really mean as a practical matter, disagree. The Constitution is precisely about how to make that happen as a practical matter in the face of enormous division and that is what I want to talk about today, how the Constitution can function as a framework for

unity

and for cohesion even in a very divided time. , as Chris says, that's the topic of my next book, which will be published next year, so it's a natural reason to address it, but I think it also gets to the core of what's required now to sustain the American economy.

American dream and also why some Americans seem to be losing hope in the American dream. It is now difficult for us to have hope for the future of our society at the moment because we seem to be so terribly divided. Americans have never lost hope in the face of external threats, but internal division strikes at the roots of our strength, leaving us doubtful of our country's ability to renew itself in divided times, we tend to equate the sheer multiplicity of American life only with the fact that our society is full of different people who have different points of view who form different groups who want different things we equate that reality with struggle with rupture with dysfunction we assume that multiplicity has to mean disunity and since we know that our multiplicity and our Diversity is a permanent reality, either we become angry at reality or we become dejected, those seem to be the two options we have now in American Life: go against reality or become discouraged, that is one of the reasons why our policy is So overflowing with all that melodramatic desperation you see everywhere you look, we've come to see other Americans as a problem. to be resolved and that is why we have come to imagine that the obstacle to Unity in our society is the existence of people who do not agree with us and among other things that has made us feel very frustrated with our system of government because that system Constantly forcing us to deal with people who disagree with us, many Americans are therefore persuaded that our Constitution is simply not well suited to our contemporary circumstances, that it assumes a more unified society than the one we have now, that It makes it too difficult to adapt to changing times, so in This divided age it can only make our problems worse.

I want to suggest to you today that that is the opposite of the truth. The Constitution is not the problem we face, it is rather the solution. It was designed exactly to address the problem we have as a challenge. How a divided society can hold together and govern itself was designed with an exceptionally sophisticated understanding of the nature of political division and what we would now call diversity. Its goal is to create common ground in our society to forge common ground where there is none. to begin with, it is there in part to unify us now I say in part that is not all, since the Constitution exists to allow American self-government on the terms required by the Declaration of Independence in light of the imperatives of order and justice and freedom and security, among others, the Preamble summarizes very well the very ambitious objectives that the constitution has, but the list of those OBJECTIVES in the Preamble begins with the imperative to form a more perfect union and the modes of government that the constitution then creates . forcing a rebellious people over and over again to form coalitions to seek accommodations the Constitution clearly values ​​unity and solidarity clearly means strengthening them I want to talk about what it means to do so and why it doesn't seem to be working now and what that would be Chris asked me to be brief and the idea of ​​these conferences is that the talk itself establishes a conversation rather than taking up all the time and I want to respect that so that, rather than some kind of academic session. disposition about this or even a book, talk about a book that is not really prepared for that, let me outline some propositions that arise for me from the exploration of this question of the Constitution's approach to the cohesion of International Unity, recognizing that these do not are exactly a complete argument, but in the hope that they can start a useful conversation, so I am going to present to you five propositions that are now contested or even unknown to contemporary Americans and the first arises from the fact that the constitution is implicitly entrenched In a particular understanding of unity in politics that understanding arises from what seems a contradiction in the thought of James Madison, the figure among the framers who thought most about division and cohesion.

Madison greatly values ​​unity and sees it as an essential purpose of the Constitution that was. Only in the sense that, as I say, the old perfect union comes first in the Preamble, the first third or so of The Federalist Papers deals with the need for Union and Unity, but Madison also thinks that unanimity is impossible in a free society on any subject. He says it clearly in Federalist 10, as long as man's reason continues to be fallible and he is free to exercise different opinions, a period will be formed so that unity is not only possible but essential and yet a free society will always be will be the stage. of intense disagreements so what does that mean for unity?

What does unity really mean in that situation? This is the first proposition that I want to present to you, the Constitution is based on the premise that in a free and, therefore, diverse society, unity does not mean thinking alike, unity means acting together, the difference between thinking alike and acting together can tell us a lot. about the type of unity provided for by the Constitution. That distinct idea of ​​unity is really essential to understanding our constitution because it is an idea that invites a question to which the Constitution isrepeatedly an answer. I say that unity means acting together, not thinking alike, and that forces us to ask ourselves how that is really possible in practice, how we can act together when we do not think alike, that is the question that the Constitution offers to answer. as a response again and again to all of his modes of action, each of the institutions he creates, each of them has their own purposes, they are not only there to answer that question, but each of them also offers an answer to That question, how can we act together when we don't think the same way.

Much of what is mysterious and frustrating to many Americans about our system today is a function of whether and how it is designed to allow people who do not completely agree with each other to act together. does, it doesn't do it very often, seizing on the fundamental challenge of modern liberal democracy, the challenge of empowering majorities while protecting minorities, as a means of forging common ground in a divided society, the Constitution is a democratic document. Power is supposed to be legitimized through elections, and yet it is also well aware that majority rule can be a principle of both despotism and legitimation, which is why time and time again the Constitution requires that Majorities grow before they can be empowered, it never really gives a narrow, ephemeral majority much power to act on its own as other democratic systems do.

Including many of the European parliamentary democracies in our system, winning an election gives you a seat at the table, not control of everything that happens and what happens at the table is negotiation, accommodation, negotiation, competition and various types of tension constructively, there are many centers of computing power, state, local and federal governments within the federal government, there are two chambers of Congress, three. branches of government, whatever you try to do, there are people in your way and their power is as legitimate as yours and you can't get anywhere without dealing with people you don't agree with, often literally making deals with people you don't agree with, that's the core, I think. of the Constitution's answer to the question of how we can act together when we do not think alike.

It is by building coalitions of people that they come to an agreement on how to act together, even when they do not always agree on why coalition building is a The process of turning multiple minorities into a single majority is essential to some extent in any representative democracy, but the American system really stands out for making it inevitable at every stage of every political process and, more importantly, even majorities, unless they are really unusually large and long-lasting. Negotiating with minorities before they can act, that is often a source of frustration and accusations that our system is not democratic enough but, as I said, the Constitution recognizes that majority rule can sometimes be a principle of oppression, not just legitimacy, rather than a simple majority. government seeks something closer to consensus government through a variety of mechanisms countermajoritarian requirements all sorts of phases and stages that must be passed thwarts narrow majorities on purpose and because narrow majorities are the only type we have had so far For a generation, Everyone has found American politics very frustrating for a generation, but its goal is precisely to frustrate the kind of majorities we have now, and this points to the second proposal I make to you about our system: meaningful politics.

Victory requires broad coalitions, not narrow majorities. You'd think that would be obvious, it sounds kind of obvious, but if you look at our politics for five minutes right now, you'll see that it's not obvious at all; In fact, everyone has forgotten, coalition building through negotiation and competition is now a very common option. It is a betrayal, a betrayal of the party, a betrayal of its most devoted constituents, a kind of lack of courage. Politicians naturally promise to fight for their voters as they should, but I think too many politicians and too many voters have also forgotten what it means to fight in our system is to negotiate effectively and thus gain Advantage by building a broad Coalition that promotes your priorities.

Politicians now behave as if fighting means refusing to negotiate, but in reality that is what they seem to lose. Refusing to negotiate means giving up the only power they have. we have because what you gain when you win an election is a seat at the negotiating table a part in the discussion about how to act together despite not thinking alike refusing to use that power is not an intelligent way to use that power the fact We have forgotten that that is a big part of why our practice of constitutionalism is now so out of control and, in turn, it is a big part of why our politics feels so broken, so divided, it is a problem that It is particularly evident in Congress, which is the first and most important. institution of our system exactly because it is the primary place for negotiation and agreement at the federal level.

Congress is where the critical work of getting our act together when we don't think alike is supposed to be done. That is why it is particularly disturbing to find in Congress the attitude that negotiating with the other party is a betrayal or a failure. I spend a lot of time with members of Congress for my sins and I must say there are some great ones, but there are too many now who give the impression of not really doing it. a great sense of what the job is supposed to be about, they want to be actors in Outrage plays and look, there are a lot of jobs now that allow you to be an actor in an Outrage play, all kinds of jobs, except member of Congress. you are not supposed to be one of those members who promised their voters that they will not give an inch, which really means promising that they will not get an inch, it means promising that they will fail and they fail, we can talk a lot about why that has happened .

Most of my work in recent years has focused on that question and you know if you make me talk about the primaries you will regret it, but for the sake of brevity tonight I want to talk in particular not so much about why it happened but about what It could be done about that because I think it's actually an issue that we're very confused about right now, and in some ways, maybe the first two proposals that I've presented to you could help alleviate some of that confusion. The purpose of the Congress. and here I especially point you to the fantastic recent book on this topic by Phil Wallick, my colleague at AI, the purpose of Congress is to allow Americans to act together when they don't think alike by creating coalitions, broadly speaking, is to allow negotiation and negotiation. address national challenges in widely acceptable ways that is not everyone's view of what Congress is for.

I'm just giving you my opinion, which I get from Phil and others. There are people who want Congress to allow whoever won the last election to simply adopt their agenda. in their entirety and have all the power until the public eliminates them. It's not a crazy way to think about democracy. It's not our way, but it's a pretty common way, but I would say it's not our way largely because it's not a unifying way. In fact, it is a very divisive way of thinking about democracy because it would dramatically increase the stakes in our elections and therefore the temperature of our politics.

The dispute between these two ways of thinking about what Congress is for, to allow adaptations or advance the majority. It is very important to understand the party agenda because it actually divides many of the people who most want to fix Congress today, there is a lot of agreement now that something is wrong in Congress and there is even a sort of bipartisan community of reformers of the Congress in Washington. We are doing important work together, but behind some of that agreement that Congress is dysfunctional is actually a very deep disagreement about what function it is not fulfilling, what Congress is not doing.

Most people's answer, I think, would be that they are not passing legislation that they believe is essential right, so whatever they believe is most important is not to act on social rights reform or change climate or whatever is paramount to you, that is the common opinion, but I think it is a mistake. It seems to me that what Congress is not doing is making much progress. my political agenda, but allowing agreements between parties, what is not achieving is allowing us to act together when we do not think the same way, there is no other institution that is there to allow that to happen in the way that Congress does and when Congress does not, it is not the case that the difference over diagnosis has enormous implications for prescribing remedies, people who are frustrated by Congress's failure to advance their favorite legislation, above all, rather than by its failure to advance any way national cohesion, they tend to ask for the model. of a European Parliament with a narrower majority where the majority party can do whatever it wants until it loses its mandate, so they want to remove the supermajority requirements.

They really hate the Senate filibuster. They want to further empower Party leaders to further centralize power in both. houses, but I think that is the kind of model that is unlikely to produce lasting legislation in our system now and, more importantly, would further undermine the ability of our politics to engage in common work towards reconcilable goals that reforms They should point out the opposite. leadership, empower committees and factions within the party, not leadership, reinforce some of the supermajority requirements that are really the only reason there is any cross-party work in Congress now. This is the third proposal that I would present to you: Congressional reforms. should make cross-party negotiation more likely, rather than less necessary, than that kind of approach to problems with our governing institutions by asking what the purpose of the institution is and therefore what it now is not doing, it should also inform how we should Let's think about the presidency now because I think we are almost as confused about the presidency as we are about Congress, just as our sense of the purpose of Congress, our understanding of the executive is dominated by a kind of prioritizing political action over the Madisonian polarization of the political order and In fact, we now think of the presidency in very legislative terms.

We think that it is a representative institution and that its purpose is to promote the political agenda of the party that won the last elections, but the presidency is a unitary position. t be representative of a diverse society and is an administrative office its purpose is a different type of action than legislative action certainly the president intends to have a role in driving our policy agenda and putting some key questions on the table by setting some priorities but the type of negotiation and agreement by which policies are supposed to be formulated cannot occur within the office of the American president and that means that the president cannot promote unity, particularly through assertive political actions, the distinctive role that the president has.

Promoting national cohesion along with other functions, his particular role in advancing unity has less to do with promoting strong policies than with what Alexander Hamilton called stable administration. The most important voice to listen to here is another AI colleague of ours, Adam. White, if I know anything about this that I didn't learn from Adam, I'm probably wrong, because, as he's been showing for years, energy is obviously an important facet of the president's role, but we pay a lot of attention to that, which now we neglect is the imperative. for stability stability stability is essential for social peace, as Madison argues in Fairly 62, precarious and changing administration makes it very difficult for people to feel safe to make plans, take risks, interact with each other through lines of difference, instability in government makes it very difficult It is difficult for anyone to be a faithful and law-abiding citizen and stability in administration depends especially on the president because the president puts our legal frameworks into effect when each president dedicates half of his time undoing the administrative actions of his predecessor and then the other half taking actions that he knows his successor will undo we lose the stability that is essential to a free society contemporary presidents because they value their ability to push political actions of that way they essentially do the work of the legislature that legislators will not do have dramatically underestimated the stable administration and The effect of this has not onlybeen bad for the administration, but it has also been very bad for national cohesion.

It again dramatically raises the stakes of our elections and the temperature of our politics because it means that key issues are not resolved through negotiation and coalition building, but through sharp turns and sharp stops, it all depends on who is president, which is why my fourth proposal for you. The fourth type of implications of looking at the Constitution through the lens of national unity is that the work of the executive must now prioritize stability. Administration is more than assertive policymaking when it comes to the third branch of the courts. I don't think a reform agenda is really the way to think about what's needed.

The courts obviously have a crucial role to play in advancing unity. too, but it may not be the part we imagine. I think it is not fundamentally based on your ability to resolve disputes. Courts resolve disputes, obviously that's what they do, but their goal is to resolve disputes about what the law is not supposed to do. be and therefore are not the place to mediate between competing visions of the public good our great public disputes should be resolved through the work of the legislature, above all, the most valuable service that the courts can provide on that front.

The National Unity Front also has other crucial purposes: therefore, by policing the rules and limits of constitutionalism, they are restricting the power of majorities and public officials to pursue various types of ends around the structure of the system. Now I would say the courts have been improving on this front. They don't like elected powers. I would say that they are now closer to fulfilling their constitutional purpose than they were a generation ago. I think they need more attention. about the constitutional structure rather than the policing of personal rights, but the transformation of the courts in this century has been quite extraordinary and for the better, so when it comes to the courts, the fifth and final proposal that I would offer you is really a The function of that same transformation is that the lesson of conservative success in the courts is that we must fight for the Constitution and not against it.

Conservative constitutionalists had every reason to renounce the judiciary in the second half of the 20th century, but instead of giving it up, they set out to renew their commitment to their own purposes through a project that began as an intellectual work, largely here in Ai and then evolved into institutional work in the federalist society and elsewhere supported by political work that allowed a genuine transformation of the Judiciary. It was from the beginning a kind of labor of love, love of the Constitution, love of country and that is exactly how we should think. on the constitutional challenges we face now I think especially with respect to Congress in particular we are pretty much where the right was with respect to the courts in the mid-1970s the idea that we could reform Congress so that it does its job again. work seems hopelessly naive Right now, if you look around you, it's no more naïve than the notion that Antonin Scalia, Robert Bork, and Lauren Silverman had when they were AI academics 50 years ago that you could have originalist judges dominating the judiciary.

I think there is a certain type of strategy. naivety that is actually very crucial to the success of reform efforts you have to be a little naive about what you love most in the world you are not a cold realist about your spouse or the New York Mets you have to be just a little naive about our country also about its prospects not so naive that it makes you optimistic that's nonsense but naive enough to have hope and fight for our Constitution and not against it there are many people now, including many people on the right who are willing to give up on the Constitution or dismiss it as inadequate for a society as divided as ours, but those people are dead wrong, the Constitution was intended precisely to address the problem we now face - the challenge of governing ourselves despite deep divisions. and in a way that can heal a little those divisions that can unite us and help us understand ourselves as a society committed to common work despite a diversity of beliefs, desires and interests that is not going to help the Constitution.

Doing that requires understanding how it was intended to be done and transforming that understanding into some kind of agenda for reform and action and that is what I have tried to outline very broadly with these proposals, so let me finish by listing just one. More time on these five ideas and suggesting that perhaps they add up to a kind of agenda for friends of the Constitution, now that unity means acting together and not thinking the same way, that political victory requires broad coalitions, not narrow majorities , which the reforms of Congress should cross. Partisan bargaining is more likely, but no less necessary, that the work of the executive prioritizes stable administration rather than assertive policymaking, and that the lesson of success in the courts is that we must fight for the Constitution and not against her.

These are broad proposals, obviously, and I can talk a little about what each of them might point to in more specific terms of action, but I think it's crucial to see that each of them opposes an attractive and familiar type of error, an error that I have put after the no in the way I have tried to present these five ideas and the combination of those errors outlines something like the rival Constitutional View that we on the right always find ourselves facing with the progressive or Wilsonian alternative to the Madisonian constitutionalism that seeks the rival View. a similar unity of thought, rather than simply acting together, is exceptionally intolerant of dissent, wants to prioritize assertive political action over coalition-widening, wants to make interparty bargaining in Congress less necessary and not more likely, wants the president acts. on his own more to drive policymaking and ultimately sees the Constitution as standing in his way rather than showing a way forward.

Conservatives have been fighting against that Wilsonian vision for a long time, but perhaps we've been fighting against it for so long that we've been forgetting what we're fighting for and have adopted a kind of right-wing Wilsonianism instead of actually turning to Madison's vision. of the Constitution. The price of our neglect on that front is not only a deformed constitutional order, but also a more divided society and that is really crucial to see now. The reason for recovering the sum of Madison's Vision is not only to be more faithful to our tradition in the abstract, but also to address the most difficult and dangerous problems facing our society now to be more united in the midst of our diversity to act better together even when we don't think alike and thus recover some of our faith in our country and our confidence in the American dream.

I'll pepper it with "gotcha" questions for the next 15-20 minutes before handing it over to the audience. q um everyone left me, let me start with the executive branch and something you wrote for Law and Liberty about the presidency recently. and I imagine something like this will appear in your book, you wrote, the type of changes most needed are forms of moderation and conscious circumspection of our presidents, this is where that naivety comes. I was going to say, I was going to say, rooted. understanding what the CEO has to offer to the cause of the Great Unity, um, yes, yes, so that seems pretty nice, let's say, very, very hopeful, um, how does that happen?, how do we find the new Calvin Coolidge?, yeah, um.

You seem to know when you talk about the courts. Obviously I like the comparison you make there, but the obstacles are different and the people you have to persuade along the way are different. How do you persuade presidential candidates during? primaries that this is a winning argument, so I think the obstacles are somewhat different, although it obviously wasn't feasible to persuade the judges to be less powerful, so I think there is something of a model for us in general in how That project was developed, which would be, let's say, to create a set of expectations that became implicit that came to be understood as the people's sense of what is required of the position.

The presidency is different. Our presence has always been very ambitious. I would say that the nature of the position is such that it takes an almost incredibly ambitious person to think they could do that job, yeah, and you know it's a good thing that we have incredibly ambitious people who think they can do it because someone needs to do that job. I worked for a president for four years and I would say it's a horrible job. I mean, you just have to be crazy to want to do that job, wake up and read the news every morning and everything you see on the front page is your problem that day. be crazy for wanting to do it and part of what attracts people is ambition, they want to put themselves at the center of the story and I don't think that's a bad thing, it's part of what we need from our presidents, but the question is what it means to be at the center of history and I think some of what our presidents have to do with it is that they would be stronger if they recognized some of their limitations and that they would be in a better place to do their jobs. actually be seen as successful if they didn't also do the work of Congress, there is great power in saying, look, I want to fix immigration too, but these people have to do it.

Harry Truman understood that he wasn't Calvin Coolidge, he was some kind of president. very different, but the sense that Congress has a job and that only by doing that job can it allow the president to do his job at least when it comes to internal affairs, I think it's up to presidents to rediscover that there's real power in that and you know that most of what needs to be done to correct some of the imbalances in the administrative state and then the way our executive branch works now also has to be done in Congress, the president.

You can't do most of that yourself. A lot of presidential overreach, like a lot of judicial overreach, is a function of congressional overreach, which is intentional and deliberate and is the biggest problem with our system. Now we have to focus on fixing Congress more than anything else. for the moment, but I think that some different expectations about the job can be achieved from the president, as well as from the voters and the people around the president, if we help people see that for the system to work, all the involved have to do their own thing. job, it can't just be the president saying Congress didn't do this so I'm going to do this, that's not how our system is designed to work and that's not how presidents can be truly powerful.

Tell me, in one of your recent articles you refer to the administrative state as a parliament of lawyers which has echoes of a book by PGA O'Rourke, actually, perhaps it is even a more vulgar title, yes, I meant that, but already you know, yeah, um. OK, to put it simply, what is the proper role of the administrative state, what should it do, what jobs does it do, this should the administrative state really have, I mean, there is especially agreement among conservatives that it is too big, but is it too big? as? Could you describe what you really should have been doing?

I think our thinking about this on the right is a little bit like our judicial thinking until the last few years, when suddenly we have a majority on the court and we have to think about actually governing, so we know what we're against, we're against against whatever we call the administrative state and I am against that too, but there is a need for administration in modern government, and there are ways in which modern government, because of the complexity of modern life and the economy , you have to draw on experience in very complicated ways. I think that where we go from describing regulation and administration to talking about the administrative state has to do with modes of action.

I would say that the administrative State implies legislative action without legislative forms and in some cases even judicial action without judicial forms, the forms are very important in the constitutional system um much of what is the constant that is the Constitution is a set of ways of doing things and legislative forms are there to guarantee that the construction of legal frameworks in our society is carried out through a representative and deliberative process in which people elected by the public, who in some way represent the interests of their constituents, negotiate together to achieve it. Legal frameworks That is, when laws are made outside of that process, those laws do not have the same legitimacy and you know that there are ways that agenciesRegulatory administrative bodies try to be representative, they try to get public comments or there is some kind of negotiation between interest groups, but in reality they do not have any of the forums that make legislative work a legitimate way of making laws and when laws are made in ways illegitimate laws you end up with illegitimate laws and I think that a good amount of administrative law as it is now frankly responds to that description now the problem is again what is required to solve it, that is, first of all, for Congress to do its job, great Part of the reason agencies intervene the way they do is not the only reason, but a big part of the reason is that Congress prefers to legislate vaguely and then sit back and watch what happens and complain and no one can force Congress to do its job.

That's a big part of the problem we face now: Nothing is actually required from Congress. Congress has many powers. He really doesn't have duties like those that a president and judges have. Congress has to want to do its job and I think the assumption was that members' ambition would lead them to want to do their job and we are at a moment. where members' ambition is directed in a different direction is channeled in a different way than doing their traditional legislative work, so again to think about how to fix the administrative state you have to think about Congress.

I'm very cautious about solutions to that. The problems that center on the Court are the idea that the Court is going to say that from now on Congress has to do its job or that it can no longer be delegated. I'm not really sure what's supposed to happen the next day and again we have to think in terms of how to really govern, how to really use power, not just what we don't like, and for Congress to be ready to take on the rates of obligations required of them in our system, members have to change. their attitude about what they're doing and I think the core of the solution to the problem that we describe as the administrative state has to come first and foremost from Congress, what do you think most representatives and senators think they actually are?

Even it's just a kind of performative outrage is that it's the center, so you know, I've spent like five years accusing them of that so I can hear what they think about it. I mean, they are outraged, yes, sure, I would say that no one explicitly thinks that that is what they are doing right, yes, but it seems to me that many members have the feeling that what it means to represent their constituents is to express anger. that their constituents bring to politics to say it and let it be heard, so they have a fundamentally expressive notion of what their job is and they see Congress as a particularly prominent platform for expression and it's a pretty good place to get it.

They know a space in cable news, but they're less familiar, and I say that because I think in some ways that's actually the deeper source of the problem now that they're less familiar with the nature of legislative work, fewer members are coming from the state legislatures and very few members have been there long enough to have seen Congress operate any differently than this, so I'm not that old now, but I find myself talking to Congressional staff. I'll tell you why I say that a few months ago I gave a little lunch talk to Republican staff on the House Budget Committee and I used to work on the House Budget Committee in the late 1990s when John Kasich was Chairman and I told him De By the way, Kasich and the ranking Democrat on the budget committee will also be from Ohio and then they would have dinner together at this horrible Little Italian restaurant every Wednesday, every week, the AV club, you know, I can't remember the name. and I didn't remember it then, but I'm sorry, they both complained every Thursday, they were both there and I didn't think that was the point of my story, but they kind of stopped me and said they had dinner together. every week, yes, and they weren't the only ones doing it, the idea of ​​a president and a ranking member of a prominent committee doing that was the way many Congresses still worked even in the '90s, which Let me tell you, the 90s were not a golden era. for Congress um, not that there wasn't intense division, but many members now haven't experienced even that kind of Congress and their sense of what the job is is determined by the last few years because that's while they've been there especially in the house, so I think the notion that their job is to engage in a very frustrating negotiation process and then at the end of the day go home and talk to their constituents about how little they've done. they got for the district, they just don't think about their job that way, yeah, and that means that when they try to measure their success, when they try to find ways to channel their ambition into their job, what they're really talking about is some kind of of prominence gained by not doing their job and I think there is an education process that is required for members and staff, that in some ways is a bit like teaching a generation of judges what a judge does, it has to start early and I mean it's started now and ultimately you have to persuade them because only Congress can fix Congress. um, maybe I'll ask one or two more questions before I turn it over to all of you, so if you want to ask any questions, take notes.

There's a couple of minutes left to do that before we turn to any questions about the evolved conversation or, um, Italian restaurants in DC, um, okay, obviously, you focus on the role of the three branches of government, which makes sense in a discussion about the Constitution as a source. of unity, but also throughout your career you have paid a lot of attention to the Berkeys and the small platoons and/or civic institutions like family churches, local organizations, where do they fit into this argument? What role can they play in reinforcing the unity promised by the Constitution?

Does the Constitution indirectly offer them lessons on how those institutions can help here? Yes, it's a really nice question. I would say that I came to this issue in a way Through a mirror image of that question, which is having worked a lot on those issues about civil society and about the kind of nature of federalism and other things, I found myself faced with the question: Well, what about politics? What about reality? Don't the institutions of the system have a role to play in addressing the types of division we have? In a way, this effort is a way to get there.

It is complementary to those arguments. No, no, it's not meant to be that way. uh a substitute for them because I think these things have to work together. Ultimately, what we are talking about is creating citizens who are good at living in a diverse society and that is very difficult. You know, an American citizen is a social achievement, not something. type of natural phenomena do not fall from the sky they simply have to be created by a variety of training institutions that train people to be very, very good at the extremely complicated task of managing very well a lot of Freedom the fact that there are millions of people in this country they can do that, they would just be left to pursue their own interests and do it in a way that doesn't involve killing people, that's really impressive, that's an achievement and I think it's an achievement of our constitutional system in part, the Constitution It shapes us as citizens, it is also more an achievement of our closest training institutions, um, which in many ways, from the family, the school, the church and the community, also shape us to learn to deal with people with whom we do not We agree and learn to act together when we don't think alike.

I think that that type of formative work that we call civic education now that suddenly there is a lot of interest in the abstract in civic education, but I think We have to ask ourselves what the purpose is, what we are being educated for and I think also understand that Unity consists Acting together rather than thinking alike is an important part of what civics education is all about. It's to teach us to act together when you don't think that way It requires history It requires knowledge of the system It also requires experience in the work of citizenship Now I must say that I don't want to simply emphasize acting together There are some similar thoughts in American life There are things in which that we agree there are very important things that we agree on um and I think the basic principles of the Declaration of Independence are actually widely shared in American life it's just that I don't I don't agree on exactly what they mean in many practical situations people who are very far from me uh in politics who are very far to the left believe in equality believe that we are all created equal I don't doubt it for a Secondly, we disagree on what exactly that means when it comes of thinking about public policy, political life, culture and education, but we disagree about what the principles that we share and that kind of shared basis and then disagreement about practical action mean. that is the nature of a free society.

I think it's not just a modern political teaching. If you think about the Aristotelian kind of idea of ​​civic friendship, that's what it's about, there's a common sense of what virtue entails, but there are deep practical disagreements and civic friendship is the way we deal with them and it took me 50 minutes. get to Aristotle, so I was going to say, we have Aristotle well done, we have Burke, we haven't heard from Tocqueville yet, but it remains, so I said. make it an official AI event, okay, let's leave it to all of you for questions, I'm in charge of calling people, when I do, please wait for the microphone, say your name and ask . question um gentlemen there in the center of the table with the colorful tie uh I'm David Lepstein yes, a great scholar of the Constitution the federalist newspapers thank you for being here um uh thank you for your admirable focus on what needs to be done You quickly overlooked the question of why this happened and what went wrong and I wondered if you had a more complete historical theory, that is, if the Constitution was intended to limit actors to force them to form coalitions, why is that requirement not met?

In fact, yes, you know how to shape their behavior or at what point you stopped shaping their behavior. Yes, thank you very much. I certainly devote a lot of attention to that question in the book and I also have it in previous writings because I think it's crucial. to understand the sources of the challenges we face if we are to think about solutions. I would say that, generally speaking, I think there has been in the American political tradition a rival current of constitutional thought for a long time, which is He actively rejected the Madisonian conception of unity, that is, he saw it as an error and argued why it should be seen as a mistake.

I think of it particularly as a kind of post-Civil War current and maybe just as a The progressive current that can be found in Woodrow Wilson's political science from very early on is a powerful argument and I think it's an argument with which It has to be faced on some level. I would say that maybe at the deepest level it's actually an argument against the notion that it's possible to act together when we don't think alike um Wilson has a sort of um, I mean, I would use the term integralism without drawing too much on its contemporary meaning. um Wilson says at one point that the Madisonian system has a Newtonian conception of itself: it thinks of politics as a machine with parts that have to act against each other to maintain a balance, but it would be better to have a Darwinian conception in which we should see politics and government organically. terms and that a living being cannot have its organs pulling in different directions, that would kill it, everyone has to operate in the same direction according to the same vision responding to the same mind and he wanted a policy that worked more like this and for So that was responsible for a unified and cohesive leadership that, if you think about it that way, naturally belongs in the hands of the president. um, he still believed in democracy, but he thought about it in a different way.

I thought that an election provided the president in particular and his party with a mandate to act as long as they had the majority and that everything responded to that mandate. That argument is not far-fetched but I think it is an argument that is presented as more sophisticated than what is known. needs to govern a complicated modern society, but which is actually much less sophisticated than Madison, speaks to the most important challenge of modern politics, which is the challenge of division, factions and diversity. Madison is much more sophisticated than Woodrow Wilson on that issue. He is more sophisticated. than anyone in our political tradition, in my opinion, on that issue and the sense that he has that division can be dealt with by building acoalition is absolutely essential to understanding the logic of our governing system and you just don't agree with that, I think he he he he I didn't totally disagree that that was necessary.

He did not believe that division was as big a problem for a society like ours as Madison did and advanced a set of ideas that point in the direction of a more confrontational and divided politics: progressivism. What followed made that argument quite explicit, I mean, in the mid-20th century, we have Daniel standing here, he was a great scholar, this question in the mid-20th century. Progressive political scientists were arguing that there wasn't enough disagreement in America. . politics and that we needed a politics that was much more intensely divided so that our parties could be accountable, that's also Wilson's phrase, um, and that people would have a real choice at election time and not just face these two messy and meaningless blob types of both. parties, but they are actually facing an election again, it's not a far-fetched argument, but I think ultimately it's an argument for a much more divisive politics, a much less limited politics and much less focused on construction of coalitions and I guess I would say here we are, can I?

Go on with that, I'm sure he hinted at this during his opening remarks that he believes there is a conservative trend moving in the same direction. Can you expand on that a little bit? Well, there is a conservative version of a kind of politics. integralism now, in some way, there always has been. I think there's always some resistance to the notion that deep disagreement is inevitable. In a free society there is always the desire to pursue a policy that allows for a much deeper and more fundamental agreement than that. um, but I also think there's a kind of conservative discouragement about the prospects of taking back the Constitution and there's a sense that if the left is succeeding in just taking power, then the right has to just take power and that's what happens.

The bad thing about the left is that they are using these media for purposes we don't agree with instead of using these media. I think they are wrong on that. I think there is no legitimate way to deploy the types of media they have. in mind um I just don't think there is um I don't think there is a good kind of conservative Wilsonianism because I don't think it can ultimately function in a way that sustains the preconditions for a free society like I. I understand, so I think that conservatives, like I said, have to fight for the Constitution and not against it, but there are some conservatives who are tired of fighting for the Constitution, and you know, some of them teach at the best law school from United States.

States, let's move on to another question, yeah, right here, hey, Yuval, John Ward, Yahoo news that you were talking about, you know, we're where we are now comparing it to the '70s and the judiciary, thinking about the task of reforming Congress, when? you compare it to the judiciary, the federalist societies, one of the great mechanisms that were part of that, what an effort to reform Congress would be like, what an institution would be like to achieve that goal and it would have to be ideologically, you know. the right like the Federalist Society has been or would it actually need to be more to the center yes, it is a great question.

John and I don't have an easy answer. In retrospect, the Federalist Society had the tremendous advantage of entering a profession. um and so they were able to provide future lawyers with genuine professional advantages in exchange for their willingness to be trained in a particular view of the Constitution. You could really get an internship working for a real Supreme Court justice and then get a really good job. after that also if you were if you were part of this process umObviously there is no similar type of profession here other than politicians, um, to take advantage of. The incentives that politicians face is a very complicated challenge.

I think that is part of what should be done. I think we have to do it. I'm thinking specifically about some of the incentives that politicians face. Some of those incentives are part of the problem. I think fixing Congress, for example, would require some reforms to the primary system, and by the way, that's not because I think the primaries created the problem in Congress. I don't think that's entirely correct, there have been primaries for congressional offices for 100 years in most of the country, but you know that prescription is not a reverse diagnosis, you don't solve problems by undoing what caused them, You have to think about how to solve them.

To change the circumstances from where we are and from where we are now, I think it is absolutely necessary to think about electoral incentives and the most powerful of them now are in the party primaries. We must think in general about how to empower parties as institutions. again, because the weaker the parties get, the stronger the partisanship gets, and you know that parties are actually moderating institutions, their incentive is to build a broad coalition and therefore they don't want to elect crazy people to run their flag, that's when they lose. control that, you end up with people who are very unattractive to the average voter, um, but I also think you have to, you know, in some ways we try to be quite naive about it today, just go to them and talk to them about how their lives could be better if Congress was less horrible.

For many members of Congress who really don't like their jobs right now, it's very difficult to find a member. It's really not impossible, but it is very difficult to find a member. They say that this job is fantastic, every day is fantastic, they don't believe that, and you know, that is a starting point because a lot of what bothers them about their job are things that they can change and that, in some way, is a main obstacle for us. who don't think in terms of changing the institution, you talk to a lot of members who say the budget process is crazy, why are we doing this? and you want to say, well, yeah, why do you do it, you just couldn't do it. it's really up to you the budget process is not fully written it's not in the Constitution it was even created in the mid 70's for a democratic chamber to serve its own purposes well do it differently.

I think a lot of that kind of thinking is now. absent because members have really only known one particular way of thinking about Congress and starting from their own dissatisfaction and helping them ask some questions about how the institution could be different, how they could channel their ambition in ways that make them feel good too. and not having to take three showers a day to get through the day, um, that's not impossible because they're human beings, so I think when you think about Congress there's a lot of thoughts of oh, they're never going to do it. do that um and I don't know that they could do it, they're unhappy men and women, so that's where the reform begins and our job, you know, my job is to just get Phil in front of them to tell them how. this might be better and you know if you know one tell me and I'll put Phil in front of them that's what we do here yeah in the back sorry hello you talked at length about this kind of idea. lasting legislation and the importance of congressional consensus um the kind that seems to be the one that takes place over years or decades um I was curious how you think the general principle applies to policy issues that are legitimately urgent and require a fast answer. of Congress, yeah, I mean there are a couple of different types of categories of those types of issues, there are real emergencies, things that really require immediate action and I would say, and here I also learned from Phil Walk, that Congress, Congress modern, it's actually pretty good at dealing with emergencies, real emergencies like covid, believe it or not, Congress actually did a better job than any legislature in the West at dealing with greed, in a way, two different presidents gave them They gave an idea of ​​what was needed and they didn't do it.

And they spent a lot of money very quickly. I'm sure a lot was wasted. It was a terrible idea, but it was what seemed necessary at the time and they got together and did it. I would say they have done it. I also responded that way to particularly dramatic economic crises in the 21st century. Crisis legislation actually happens in Congress, or think about Congress after 9/11. It was actually quite impressive there for a while, then there's another set of issues that I would address. We describe as medium-term issues, we really need to do something about the trajectory of welfare spending.

I mean, we really do, but Congress is very bad at addressing those kinds of issues. I think that's true when it comes to climate. I think that's true when it comes to climate. There are kinds of things that, if you let them go on forever, could actually be very bad, but they will be very bad in the next election, and that means it's a blind spot for Congress that the modern Congress really knows how to handle pretty poorly. Again, I mean no one really wants to deal with a big problem that they don't have to deal with, but I think that's a place where reluctance to negotiate becomes a particularly big problem.

Congress legislates some things across partisan lines, I would say. that right now that happens almost entirely because of the Senate filibuster. I'm a big fan of the Senate filibuster. I think the tendency of every slim majority in the Senate to say, "Okay, now we have to get rid of the filibuster" is terribly destructive. inclination if you think about the last Congress, I don't know about this Congress, it's not really doing anything at all, but in the last Congress the Democrats came in with majorities and decided that what they were going to do was change the elections. laws in all 50 states after we had just had an election where a lot of people didn't have confidence in the system, they were going to do it on their own in a way that all the Democrats agreed with and no Republicans agreed with, It was absolutely It's crazy, an incredible kind of civic vandalism and the only reason it didn't happen is the obstructionism of the center and at the same time the things that they did, like the chip law or, uh, the bill of infrastructure that reforms the electoral counting law, a genuinely bipartisan legislation that will endure. because it was bipartisan it also only happened because of the Senate filibuster, so on both counts you could say that Congress only did its job in a recognizable constitutionally minded way because of the filibuster and I think it's very important to keep those kinds of guards up. against ephemeral action by narrow majority um and you know that's not a solution to the tax problem, it's not a solution to this kind of thing that everyone sees coming in the future for 20 years and we never act on it, but I think it's at least how we need to think about starting the path toward a Congress that thinks about its work in terms of negotiation and accommodation and, ultimately, that's how you can have some hope of getting to a place where those larger problems are resolved. , but will Congress take care of them without becoming an emergency as I say?

I'm not an optimist, I'm just hopeful, so no, I don't see it right now, maybe there's time for one or two more. questions, um, Gary, yeah, one of the most interesting things about Madison's Constitution is how quickly political parties emerged, so the question is, in particular, that Madison himself is part of that process. Is there something inherent in Madison's Constitution that lends itself to the need for a party to increase, yes, I really do. Or there will be a chapter in this book on that question too I think about them I think about the party system I think party politics is like a There was a strange kind of blind spot in the otherwise truly extraordinary political vision of the editors .

There was a real sense in their rhetoric and in their actions that suggested that they believed that, at least in the process of drafting the Constitution, there could be a functional political system without political parties, I think that in part they were living in a moment in which that there was a kind of cross-party consensus in American life for a while, you know, the agreement around the revolution. what was obviously a divisive issue in American life crossed the usual kind of left-right divide, the left-right divide of English politics, say between the Whigs and the Tories, just wasn't present in America for a while and you have John Adams and Thomas Jefferson wrote the Declaration of Independence together like it was a strange time and I think it made them believe that it might be possible to avoid partisan politics and Madison from the beginning equates party and faction in a way that I think.

He later changes his mind that a faction is a group in politics that isin politics to pursue their own interests to the detriment of society at large, while a party is a group unified around a shared vision of the common good. uh, parties don't agree on what would be good for everyone, they're not in politics just for their own good, that kind of party emerges very quickly as necessary in a sense, I think there were some particular reasons for that, um, the design of the elections. The college, which is really strange in many ways, created the need for parties pretty quickly because the Electoral College never worked the way it was supposed to work;

It was meant to be a kind of deliberative process between the people and the election of the president and very quickly it became a kind of seal of approval of the votes in the states and there was no deliberative process on the election of the president and that process ended happening in games. I would say that happened early, but it also happened. especially because of the rise of the Democrats with Madison Jefferson, but at the end of the Era of Good Sentiment there is only one party, you know, in the election of 1824, you have four candidates and they are all Democrats, that election was a disaster and it was over. in the House and you know a small group of Democrats, especially Martin Van Buren, who thought this will always happen unless we have some process to filter who is running for president and a lot of what was intended to happen in the Electoral College ends happening between parties in our system, parties are created so that there are only two candidates for president because otherwise all elections will go to the House of Representatives.

I think Van Buren and others also saw that the parties could determine. people would think about coalition before they ran for office so that they could then think about coalition in office and the party system fit very well with the Madisonian system um and I think it's that I think the American two-party system is a very good fit for the type of coalition politics that the constitution demands, create these two parties that are not like the European parties, they are in massive and really sloppy coalitions and they have to work internally to expand and become a majority if they want we are going to win an election and that's exactly how we should think if we're going to populate institutions like Congress and the presidency and state legislatures, so yeah, I think our party needs our system, it needs parties and it took a while to understand them, but I think in some ways They are part of the constitutional system.

It's time to ask one more question. At the back table, thank you very much. Dr. Myrtle Alexander Institute for Academic Management. My question refers to a fellow immigrant and someone. Who values ​​the concrete construction of the Constitution and I come from the United Kingdom? I'm curious to know how many in your mind, how many or why so few Americans actually know the Constitution and it's so intentional that they don't know its contents. of the Constitution and that is why they do not defend it per se or it is simply diluted. Yes, yes, it's a great question.

You know, it's a hard question to answer because we live with a kind of sense that it used to be very different. I think a lot of the conversation that's being had now about civics is based on the premise that it used to be the case that Americans knew a lot about the Constitution. I really don't think that's true. It used to be the case that fewer people were allowed to get involved in politics and that's not a good thing. I'm sure more people involved probably had a more educated understanding of the system, but I don't think that's where we are. trying to make, you know, the notion that Americans used to be much better informed about constitutional principles is probably not entirely correct, although I don't know that and I don't think it would be easy to know, it's a problem.

I think Americans should be more informed about the Constitution. I don't think it's really possible to get to a place where everyone walks around with a great deal of knowledge about constitutional law. I'm not sure I really like that country. a lot, actually, but in any case, that's not what we're going to be, but I think Americans have to have a sense and this really comes back to the point where I started in the talk, they have to have a sense of ownership of the Republic American in some way. to think about our country that way in that first person plural sense, this is our problem and when things go wrong you don't sit back and wait for someone to show up and fix it umpero, but, you take possession of it Same thing, you know, the word responsibility is a wonderfully American political word, it used to be that the Oxford English Dictionary said that the first use of it was in Madison's notes and the Constitution, they don't actually say that anymore.

I wish they did. It would be very useful for me. They've found uses earlier and in Britain, but one of the first uses was actually to describe the American presidency and I think that's true as well. It's also the case that responsibility is a word that describes our relationship to politics in a different way. In the United States, it is ours, we own it, we are responsible for it, and it would help if more Americans thought about politics that way. Don't know. how deep we can go into constitutional knowledge, but that sense of instinct is something we have to work towards.

Thank you, everyone has joined me. Thank you and thank you all for attending tonight. I am very grateful. In fact, I am very grateful. I invite you all to a reception right after this, before you leave, although I want to remind you that we have other events for this lecture series already scheduled for November 16. Here we will have Caitlin Flanagan talking to Thomas. Chatterton Williams on free speech January 25th we have Gary Saul Morrison from Northwestern University in conversation with one of his former students our own Tony Mills on Russian literature Jonathan Height will be here in April, we don't know the exact date yet to discuss uh social media and literature or sorry and democracy maybe we'll talk about books too and then we're filming for another event in May to be confirmed so I hope to see you at some of those events too thank you very much.