The following is a review of Dennis Hale and Marc Landy, Keeping the Republic: A Defense of American Constitutionalism (University Press of Kansas, 2024).
In one of the less-noticed aspects of his State of the Union address, President Biden announced his elimination of the requirement that Federally-backed mortgages be accompanied by title insurance. Instead of such insurance, normally paid by home buyers, which ensures that the property on which the house rests legally belongs to the seller, the administration will now accept “attorney opinion letters” attesting to that fact. But such letters, as New York Post columnist James Bovard observes, have little value, and come in the wake of a recent report by FundingShield that home title fraud risk “reached an all-time high” in 2023. Even more importantly, however, for those who believe in the importance of Constitutional government, Biden’s announcement – like his repeated attempts to unilaterally cancel debt obligations on student loans – exhibits his continuing practice of substituting government by executive or agency fiat for the Constitutionally ordained process of congressional legislation.
Such disregard for Constitutional procedures is hardly unique to President Biden, of course. It is alarming to read of the admiration expressed by his opponent in this year’s election, Donald Trump, for authoritarian rulers like Hungary’s Viktor Orban and even Vladimir Putin. Following a recent visit by Orban to Mar-a-Lago, Trump called Orban a “fantastic” leader because when he says “’This is the way it’s gonna be,’” “that’s the end of it,” since “he’s the boss.” Considering the various threats Trump has issued of actions he intends to take on the first day he resumes the Presidency (including promising to “end” the Ukraine war that day, presumably by cutting off aid to the Zelensky regime unless it agrees to surrender on Russian terms), there is reason to doubt that he has any more respect for America’s Constitutional order than his Democratic opponent.
Under these circumstances, Keeping the Republic, written by two distinguished political scientists at Boston College, could hardly have appeared at a better time. Citing the disfavor into which the Constitution has fallen among academic critics, (including a recent New York Times editorial by law professors from Harvard and Yale, titled “The Constitution Is Broken and Should Not Be Reclaimed”) the authors defend that document as an effective means of “provid[ing] for a free government because it places effective limits on the exercise of power,” which are needed no less in a democratically elected government like ours than under a monarchy or oligarchy. This defense requires recollecting the dangers of “majority tyranny” against which the Constitution’s authors sought to defend (as explained in the Federalist Papers) and which the great French commentator Alexis de Tocqueville warned in Democracy in America – in contrast to the wish of contemporary academics to replace our national charter with a more simply majoritarian system. (See my review of Steven Levitsky and Daniel Ziblatt, The Tyranny of the Minority, The Constitutionalist, February 28, 2024.)
As the authors begin by noting, the Constitution was designed by its authors to both adapt to “modernity,” that is, the Hobbesian-Lockean doctrine that government exists to for the limited purpose of securing all people’s equal rights, and “discipline” it so as to “make it compatible with republican government and human nature,” more broadly understood. The Constitution embodies a “mitigated” democracy rather than a simply majoritarian one not in order to block the people’s considered will but rather to ensure that government policies will reflect what the Federalist Papers term their “deliberate sense” as distinguished from passing whims or passions. (This point is elaborated in Joseph Bessette’s 1994 book The Mild Voice of Reason and Greg Weiner’s 2012 study Madison’s Metronome.) They stress as well the Founders’ political debt to British common law – on which many of the grievances listed in the Declaration of Independence are based – which limits governmental authority according to rules of reason derived from custom, particularly as reflected in jury trials – in contrast to the “Jacobin” approach which views custom as a barrier to freedom. And contrary to Woodrow Wilson’s dismissal of the Constitution as an outdated political machine based purely on Newtonian mechanics, it was understood by its designers to presuppose a high degree of civic virtue, backed up by such institutional features as separation of powers and checks and balances.
Critically, however, the Founders recognized that in a nation as large and diverse as the U.S. already was in 1788, the inculcation of virtue could not possibly be achieved through the authority of the Federal government, but only through state and local governments. This is one reason for the importance of the federal system, which divides government responsibility between national and state authority – though federalism (in the form, say, of the Electoral College) is often disparaged by present-day critics who wish to turn our political system into a simply majoritarian one.
As Hale and Landy remind us in their second chapter, criticism of the Constitution on the ground that it is insufficiently democratic dates to the debate over ratification, in which Anti-Federalists contended that the national government’s remoteness from the people, the broad powers granted to it, and relatively large size of Congressional districts would turn our regime into an aristocracy or oligarchy in all but name, in which the autonomy of state governments would practically disappear. Yet, partly thanks to the development of the political party system (unforeseen by the Founders), the Anti-Federalists’ fears long proved unwarranted. Through the system of political parties, initiated in 1800 but made permanent under presidents Jackson and Van Buren, voters were able to express their will directly in the presidential selection process, rather than rely, as the Constitution’s authors had naively expected, on the judgment of respected electors to make the choice for them.
Meanwhile, our federal system “enabled the creation of a decentralized party system” (in contrast to those that exist in most contemporary parliamentary democracies), which in turn reinforced federalism. And being smaller in size, “many states” early in the nineteenth century embraced practices that were “more democratic” than those available at the national level, such as elected judges, larger legislatures, and weaker executives – as well as devolving more authority over matters like education, law enforcement, and economic regulation to the municipal level.
As the authors recall, the first real controversy over the Constitution’s legitimacy after ratification arose with the slavery controversy. While, beginning with the “nullification” crisis under Jackson, defenders of slavery led by John Calhoun aimed to rewrite the Constitution so as to guarantee slavery’s permanence and potential expansion, Hale and Lady focus instead on the Abolitionist position advanced by William Lloyd Garrison and Henry David Thoreau, which depicted the national charter (as do exponents of the 1619 Project today) as a “slave document” on account of the compromises its authors had to make in order to win the assent of Southern states (notably the three-fifths and fugitive-slave clauses). But in response, the authors rightly cite antislavery champion (and ex-slave) Frederick Douglass, who in his 1852 Fourth of July Oration, even as he excoriated his fellow citizens for perpetuating the evil slave system, portrayed the Constitution itself as “a glorious liberty document,” which neither mentions slavery by name nor authorizes it. Like Lincoln, Douglass understood such circumlocution as intended to prepare the way for slavery’s ultimate abolition, without leaving any trace to contradict the principles of freedom expressed in the Constitution or the Declaration of Independence.
But while the post-Civil War amendments settled the legal status of slavery once and for all and guaranteed the fundamental rights of all citizens (even if the realization of that guarantee would take another century), a longer-lasting challenge to the Constitution’s legitimacy arose from the influence of utopian speculations originating in the French Revolution. Those speculations, which first took root in this country in the late nineteenth century, culminated in today’s Progressive movement. As an early instance of progressive utopianism, Landy and Hale cite Edward Bellamy’s 1888 work Looking Backward, the third-best-selling American novel of the century. It anticipates the dreams of later Progressives in forecasting the “scientific” management of people’s lives (including the nationalization of all property), the disappearance of crime and warfare (thanks to committees supervised by an International Council on Crime), and a total absence of politics or political subdivisions (since all issues of governance are settled by impartial experts).
As the authors note, although twentieth-century reformers who shared Bellamy’s faith in expertise and, to a lesser extent, his disdain for politics could not eliminate the latter, they nonetheless aimed to reform it, since they saw our parties as hopelessly corrupt. To remedy the problem, they favored populist reforms such as the initiative, referendum, and recall (some even advocating national referenda that could enact legislation directly or reject Supreme Court decisions) – even while aiming to promote governance by experts. As Hale and Landy observe, the “conflict between politics and expertise is a problem that has not gone away,” given the possibility that popular majorities will fail to choose the correct policies or candidates.
Early in the twentieth century, the authors note, the movement for Progressive reform split into two camps, one led by Woodrow Wilson that aimed to use reformed political parties as the engine of change, and the other, championed by Theodore Roosevelt, that purported to transcend partisanship entirely through the creation of a “national community” led by men like himself. But both sides agreed in seeing the Constitutional regime of limited government as “not just a relic” but a “menace.” Both groups maintained that an expansion of national authority, combined with populist appeals, was necessary to rescue American democracy from control by “big business.”
As exemplars of the determination to wean Americans “from their slavish devotion to constitutional forms,” Landy and Hale choose two otherwise very distinct thinkers, Wilson and Herbert Croly. Croly, founder of The New Republic magazine, argued in The Promise of American Life (1909), destined to influence both Presidents Roosevelt, that achieving the larger purposes of the Founders themselves would require scrapping their handiwork in favor of a “planned” system of “social” liberalism that would de-emphasize property rights and individualism which had generated a “morally and socially undesirable distribution of wealth.” For his part, Wilson too envisioned transforming the nation gradually into “a single community,” as perfectly coordinated as a “beehive,” but one that could be altered again on the basis of future plans, administered by experts. Wilson’s professed successor FDR emphasized, like Croly, the need to replace America’s past reliance on “the free action of individual wills” with a regime of “organized control,” such as the New Deal embodied.
The most peculiar of the ideas Roosevelt expressed in his programmatic 1932 Commonwealth Club address, the authors observe, is his claim that America’s era of growth had come to a permanent end, with our industrial plant not only fully built, but possibly “overbuilt.” With the disappearance of the frontier (a point Roosevelt derived, I note, from his Harvard instructor Frederick Jackson Turner), Roosevelt maintained, what was left for the nation to do was not the “discovery or exploitation of natural resources, or necessarily producing more goods,” but just the “soberer, less dramatic business of administering” the “resources and plants” we already had, finding markets for America’s “surplus production,” and “adjusting production to consumption.”
In retrospect, Landy and Hale observe, Roosevelt’s pessimistic claim was obviously false: the disappearance of “free land” in no way entailed that population growth would cease, and companies would be unable to find markets for new products, so that the market could no longer function without government supervision. In fact, as they note, America’s gross national product in 2019 was over twenty times as large as it had been in 1933. But the same pessimism was often found “hidden inside the most ‘forward-looking’ progressive arguments,” including Croly’s. The thread uniting the various strands of progressivism, including that of Bellamy and Wilson as well, appears to have been not a belief in progress in the sense of ever-increasing popular well-being, but rather the advancement of “scientific” management of America’s economic and social life.
Following the New Left’s protest against the reign of top-down progressive liberalism in the name of “participatory democracy,” Landy and Hale proceed to note, FDR’s “New Deal liberalism” enjoyed “a spectacular revival in the 1960s” in the form of Lyndon Johnson’s “Great Society.” (The merits of LBJ’s policy are taken up in a subsequent chapter.) But in recent decades, the continuing progressive movement to “transform America” has been altered by the rise of identity politics, which explicitly rejects America’s national heritage as the embodiment of racism, sexism, and oppression. Nonetheless, the emergency of identity politics “has not stemmed the flow of constitutional critiques” emanating from the progressive tradition, as espoused by political scientists like Robert Dahl and law professors like Sanford Levinson, which continue to lament the Constitution’s insufficiently democratic character, with Levinson going so far as to propose a “new constitutional convention,” delegates to which would be chosen by lot, to devise a replacement constitution for adoption by a national majority vote. (While Dahl cited the survival of freedom in countries with parliamentary government as a refutation of Tocqueville’s forecast that unchecked democratization would lead to despotism, as Landy and Hale note, he neither refutes nor even addresses the sort of despotism the French observer had chiefly in mind, “soft” or tutelary despotism, in which an elected government takes charge of all aspects of people’s lives, undermining human dignity and achievement.)
Landy and Hale offer a systematic defense of the Constitution against its critics in their third chapter. They begin by reminding progressives of the anti-progressive sorts of Constitutional amendment that might have been enacted in the past (e.g., authorizing the right to practice racial discrimination) had the amendment process been made more easily susceptible to changing popular moods. They then challenge the claim that by providing guarantees of property rights and freedom of commerce, the Constitution systematizes economic inequality.
“Even poor Americans,” the authors observe, “live far better than poor Americans in the past,” largely “because of the decline in the prices of what once were considered luxuries,” such as air conditioners, computers, and cars (which are widely owned by Americans officially classified as living in poverty – in contrast to their European counterparts). And “the persistence of poverty amid plenty” in this country reflects not a failure of the market system, but of factors like “bad schools, broken families, substance abuse, and high rates of crime.” And contrary to Progressives’ admiration of Scandinavia as a socialist utopia, “the private sector thrives there,” with Sweden and Norway having “more billionaires per capita than the United States” while “charg[ing] no inheritance tax.” In fact, a 2008 OECD study “rated the American tax system among the most ‘progressive’” among developed nations. The rise in wealth among America’s richest individuals has been accompanied by increased living standards among the middle class and the poor, rather than coming at their expense.
“The pragmatic case” for the tendency of free enterprise to promote shifting inequality, the authors add, includes the fact that rich people are more prone “to invest in risky ventures” that, when they succeed, generate the sort of technological innovation in which America leads the world. Taxing the rich more heavily wouldn’t increase “the power of ordinary people,” but would simply amplify the power of bureaucrats to guide the economy, stultifying economic growth. And not only does the U.S. government already engage in “far more social welfare tax expenditures” than its European counterparts, so too do individual Americans “give far more to charity” than wealthy Europeans do. As for the claim that our system establishes a hereditary oligarchy, a Forbes list of the 400 richest Americans found that as of 2018, 67 percent were “self-made.” Nor can any government be trusted to distinguish how far particular classes of individuals “deserve” specific levels of wealth or income. While some people understandably resent the possession by the super rich (Americans and foreigners alike) of enormous yachts or mansions, there is no way to distinguish such moral repellence from mere envy (such as underlies, I add, the Biden administration’s 2024 proposal to raise taxes on private jets). The one historical alternative to today’s materialistic and individualistic societies, the authors note, was the premodern world that “was based on hierarchy, custom, religion – and very short life spans.” It is unlikely that today’s progressives wish for such a pre-capitalist world.
Landy and Hale succinctly challenge progressives’ complaint that the Constitution is insufficiently protective of rights, since it secures only “negative” rights, as distinguished from “positive” rights such as health care or a guaranteed income – a fact that led the late Justice Ruth Bader Ginsburg to deny that the Constitution merited emulation by other nations – by noting that “rights” to health care or housing are in principle illimitable, depending purely on how much Congress is willing to spend on them. The more that domestic programs are turned into rights, the less able government is to make rational spending decisions that require balancing different goods (as well as determining levels of taxation). Guaranteed incomes also create the moral hazard of generating a disincentive to individual work. By contrast, the rights that the Constitution secures such as free speech don’t entail limiting others’ rights to the same good, nor do they depend on anyone’s deciding on how much of it you deserve.
Limits of space prevent me from delving into the remainder of Landy and Hale’s defense of the Constitution, including their distinction between reforms such as the 1996 welfare reform, or “affirmative action” in its original sense that conform to the “Constitutional grain,” and those such as racial preferences, or the vast expansion in EPA authority beyond its legal mandate that don’t. I must pass over as well their concluding chapter on “Thinking Constitutionally,” which urges citizens to seek to restore the Constitution’s distinction between Congress’s delegated powers and the “police powers” of state and local governments over everything from education and public health to law enforcement. It also scolds Congress for having long abandoned its Constitutional responsibilities to confine the federal government to the powers delegated to it, paving the way for “stealth government” by Supreme Court rulings (e.g. mandating bilingual education), a bloated Federal bureaucracy that takes advantage of vague legislation to rule us, or arbitrary Presidential decrees (such as Biden’s mandate regarding transgender use of bathrooms).
I would urge that this book should be required reading for every high school teacher of civics, and in every introductory college course in American government, across the nation. Every citizen stands to profit from reading this fine work of accessible, relevant, and thoughtful scholarship.
David Lewis Schaefer is Professor Emeritus of Political Science at College of the Holy Cross in Worcester, MA. A three-time fellow of the National Endowment for the Humanities, he is the author of The Political Philosophy of Montaigne (second edition, 2019) and Illiberal Justice: John Rawls vs. the American Political Tradition (2007).
