To recover our constitutional order, we must recover a more complete understanding of who we are as a people — and of what our founding document means.
NRPLUS MEMBER ARTICLE
he politics of 21st-century America has overflowed with constitutional controversies. From debates about war and emergency powers to litigation over health care, marriage, religious liberty, immigration, and financial regulation to the impeachment of a president, we have frequently fought over how to put into effect the 230-year-old blueprint for our government.
These have been important and necessary arguments. But to consider them together is to see that our understanding of constitutionalism, across the political spectrum, has become too narrow. And that narrowness is not only a symptom but also a cause of the dysfunction of our politics.
Simply put, we now tend to treat the Constitution as exclusively the business of lawyers and judges, and to think that what’s at stake in our constitutional disputes is ultimately policy — what our government can do about various public problems. This is at best a badly inadequate understanding, and it leaves us with a blinkered constitutionalism that will not serve us well.
To see why, we can start with a simple question: What is the Constitution? It’s a difficult question to answer not because the Constitution is irrelevant or unknown to us, but because we identify our society with it to an unusual degree. As the historian Hans Kohn put it in his 1957 classic American Nationalism, “the American Constitution is unlike any other: it represents the lifeblood of the American nation, its supreme symbol and manifestation. It is so intimately welded with the national existence itself that the two have become inseparable.”
This is not much less true in our time, though we have emphasized different facets of the Constitution as our conception of American life has changed. We may think of our society now less in terms of the constrained enumerated powers of Article I and more in terms of an ever-broadening set of claims about the Bill of Rights or the 14th Amendment. But the deepest currents, and the deepest disputes, in American life are still frequently envisaged and enunciated in constitutional terms.
Yet for that very reason, because they seem to come so naturally to us, we have trouble fully articulating those terms. We naturally think of our Constitution as a framework — an arrangement of interlocking powers and restraints that establishes a system through which we govern ourselves. But what sort of framework is it? The answers to that question fall into roughly four categories.
First, we might think of the Constitution as a legal framework — a text duly enacted that establishes a set of rules that can be put into effect by public officials and interpreted by judges in response to cases and controversies over time. The Constitution describes itself as “the supreme Law of the Land,” and it certainly is first and foremost a legal document in this sense.
Second, we might think of the Constitution as a policymaking framework — a set of tools and authorities that enable a government to address practical problems by making laws, implementing them, raising revenue, spending it, creating public programs, and taking policy action. Our Constitution was adopted because the Articles of Confederation that preceded it were grossly inadequate as a policymaking framework, and it certainly was and remains a better one.
Third, we might think of the Constitution as an institutional framework — a set of formalized bodies (legislative, executive, and judicial), each with a distinct structure and character and each carrying out a particular kind of work. Our constitutional system is made up of these interlocking institutions, and is given its shape by their forms.
Fourth and finally, we might think of the Constitution as a political framework — an arrangement of powers and practices that answers to some enduring moral truths and desired ends of government and sets up a regime with a particular character, tone, and ethic. To be a constitutionalist is at least at some level to champion that regime, and the ideas of government and the citizen for which it stands.
These conceptions of the Constitution are not mutually exclusive; our founding document is simultaneously a legal framework, a policymaking framework, an institutional framework, and a political framework. But at different times we tend to prioritize each of these four facets differently. And in our time, we dramatically overemphasize the first two and under-emphasize the last two.
To think about the Constitution legalistically is to see it simply as a set of rules to be applied and interpreted, ultimately by judges. This view obviously makes sense up to a point. Judges have a foremost role in constitutional interpretation, and the Constitution is, in some of its most crucial respects, a form of law. But this view is easily taken too far, and so can encourage an excessively lawyerly constitutional practice that comes down to a search for technicalities that justify various uses of power and so narrows our understanding of what political life involves.
We could see this, for instance, in the process that led to the impeachment of President Trump at the end of 2019, which all sides tended implicitly to treat as though it were a criminal investigation, rather than an occasion for civic and political judgment regarding the character of the president’s performance of his office. We can see it more generally in the tendency of presidents and members of Congress to act as though they have no responsibility to apply and interpret the Constitution. Their behavior implies that constitutional questions are simply up to judges to decide.
Sometimes, the implication becomes explicit. To take one example, when President George W. Bush signed the McCain–Feingold campaign-finance law in 2002, he noted in a signing statement that he had some “reservations about the constitutionality of the broad ban on issue advertising.” But rather than refuse to sign a bill he deemed constitutionally dubious, he concluded, “I expect that the courts will resolve these legitimate legal questions as appropriate under the law.”
To simply equate the constitutional and the legal is to radically constrain the scope of our politics, and ultimately to evade essential duties. To treat the Constitution as just a collection of rules is to view the present-day problems with our constitutional system as a function of people doing things they shouldn’t in ways that judges ought to stop. And in many significant cases, this view is mistaken.
To think of the Constitution as a policy instrument, meanwhile, is also surely reasonable up to a point. Our system exists to enable a government to address public problems and meet national needs. But as Karen Orren and Stephen Skowronek point out in their important 2017 book The Policy State, there is much more to government than policy. Government also exists to secure basic rights and to structure political relations, for example, and that requires us to think about the Constitution in terms other than policymaking. Policy-centric arguments, like law-centric arguments, cannot always simply trump arguments made on other constitutionalist grounds.
So when courts prioritize Congress’s goals (in health-care legislation, for instance) over the texts of the laws it writes or the separation of powers, they distort the character of our system and endanger its other objectives. When a president decides that his administration must change the immigration system even if Congress won’t, as both President Trump and President Obama have done, he is implicitly putting policy action ahead of the structural constraints built into our system. This may not be technically illegal, and there may be nothing judges can do to stop it, but it should be plain to Congress and the public that it violates the spirit of our constitutional order.
An overemphasis of policy objectives tends to blind us to institutional concerns: If only the substantive goal matters, then questions regarding who acts for our government, and when and how they do it, can easily come to seem like distractions. And an overemphasis of legalistic constitutionalism leads to an overemphasis of the relations among the branches rather than the substantive work distinctly appropriate to each of them as institutions.
Yet some of the most difficult constitutional challenges we face today might be best understood as rooted in institutional problems. You might not know it from the way we tend to think about the separation of powers, which leaves us imagining that there is a fungible commodity called “power” that the different branches exercise and the salient question is who has more or less of it. But what’s important about our system is not so much that it divides the power of the national government into three as that it divides it among legislative, executive, and judicial institutions, each of which is expected to exercise its authorities differently, and for a different purpose.
Congress generally creates the frameworks for government action. It makes the laws that channel public power, allocate public resources, and establish boundaries on the public sphere. In a complex society like ours, these kinds of frameworks are necessarily the product of accommodation and compromise, and the work of the Congress is therefore necessarily plural: It is a work of many, and involves conciliation among them.
The presidency, meanwhile, generally acts within the frameworks established by the laws that Congress passes. The purpose of the office is action, and its institutional design reflects that. The president applies the sorts of power given him by Congress (and in some limited circumstances directly by the Constitution) to the particular circumstances our society confronts, and wields it in the moment to secure the nation and carry out its laws. He reacts to events, adjusts to pressures, and makes concrete choices among permissible options in complicated situations. Action like that is necessarily a singular endeavor, not a group activity, and to be carried off well it requires energy, boldness, focus, and ambition. The executive branch of our government is supposed to enable those virtues in the single person chosen to exercise the power it possesses.
Lastly, the judiciary steps in after frameworks have been framed and actions have been acted, and reviews them both in response to cases and complaints to make sure that general rules have been applied appropriately in particular circumstances. It neither creates frameworks nor acts on behalf of the public, but instead assesses the behavior of those who do those things.
It is only a slight exaggeration to say that the Congress is expected to frame for the future, the president is expected to act in the present, and the courts are expected to assess the past. The most crucial differences between them are not power imbalances, but fundamental distinctions of purpose, structure, and form. So they are best understood in institutional terms.
That means we need to judge the health of our system not only by whether the various players in it are transgressing the boundaries established around their power but also by whether they are playing the sorts of roles assigned to them within those boundaries. When an administrative agency exercises an open-ended power to make general rules and enforce them in specific circumstances, a judge might reason that it has the legal room to do that, but a citizen can plainly see that it is acting legislatively and judicially even though it lacks a legislative or judicial form — and so is violating the structure and logic of our Constitution. (In fact, this is another way to describe what’s wrong with the administrative state: legislative or judicial actions without legislative or judicial forms.)
When a president says, “If Congress won’t act, I will,” he is more or less threatening to violate the constitutional order. There are no properly legislative actions that an executive could properly carry out instead. Sometimes — as with President Trump’s recent pandemic-response orders, and perhaps with some of President Obama’s immigration orders — the action in question can be justified with reference to one of the countless vague and broadly worded statutory grants of authority that have been piling up for a century now, and so cannot be undone by the courts given their own proper institutional constraints. It isn’t illegal. But it is still counter-constitutional, and the underlying open-ended statutory language is too. The Constitution calls for certain forms of action and restraint by the occupants of the institutions it establishes, and those constitutional officers should be appraised by how they play their parts.
Too often nowadays, they fail to play their proper parts because they fail to think in these kinds of institutional terms. They don’t understand their jobs in the context of the distinct forms and functions our system assigns them, but in terms of the roles they play in the culture-war theater of our politics, where the goal is not legislative bargaining or executive action or judicial review but performative outrage for a partisan audience. Pushing back against this would mean not only policing the relations between the branches but articulating a revitalized constitutionalism — rooted in the text of the document and informed by the thinking of the framers and the history of our constitutional system — that reemphasizes the characters of our distinct governing institutions.
Crucially, such an institutional approach to our system of government could help us see not only when one of the branches overreaches but also when it under-reaches, and so fails to do its necessary work. Congress today plainly under-reaches in this way. Its members want to shirk responsibility for hard decisions, and tend to favor vague legislative mandates that describe popular goals but leave the tough governing details to bureaucrats and judges. That’s not illegal, and no court can do much about it. But it is a dereliction of constitutional duty that does serious harm to our system of government.
This points to the final form of constitutionalism, which is the most capacious if also the most nebulous. Some of the constitutional challenges we confront now are political, in the deepest sense: They are about the character of our polity, and the nature of citizenship and authority within it. They may touch on deeply sensitive social issues — race, the family, religion, etc. — or they may involve the ways in which we live together, respect each other, understand our rights and obligations as citizens, govern our communities and nation, or accommodate differences.
To understand the Constitution in such political terms is, for one thing, to contemplate the character of the regime we have. “Political constitutionalism,” the University of Virginia’s James Ceaser has written, “understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.” It is in this light, and upon consideration of such questions of the proper tone of the operation of our institutions, that we can see some of the dysfunctions of our politics in recent years as constitutional problems. They can’t be addressed by litigation, but they nonetheless result from fundamental constitutional deformations — failures of responsibility and corruptions of political culture.
Such failures and corruptions have been particularly characteristic of the Trump era. President Trump entered office without much of a grasp of the traditional role of the president or the traditional shape and boundaries of our constitutional architecture, and as a result he has frequently thought about his role in ways that do not align well with the contours of American constitutionalism. This is most evident in his rhetoric, though sometimes also in his actions. It is what is wrong with his inclination to speak at, rather than for, the executive branch in public, or to think out loud about using the military for domestic law-enforcement purposes or delaying the presidential election. It is the problem with his pandemic-response orders and with unappropriated funding for the border wall.
Confronted with such talk or action, we have to ask ourselves not only, “Is this technically permissible?” but also something more like, “Does this belong in our kind of politics?” That’s a question that demands to be answered in terms of the purpose and goals of the Constitution, the sort of government it was aimed to create, and the sort of society it governs. And it’s often a question for voters, or for people who are accountable to voters. Answers to it won’t be merely lawyerly; they will be rooted in the ideals that shape our civic aspirations, and in the common historical experiences that have forged us into a nation. They won’t be as precise or confident as answers given by the courts to a strictly legal question, and they may be open to more debate and adjustment. But they are no less crucial for that.
Still, the political mode of constitutionalism runs even deeper than judgments about the behavior of our leaders, toward a notion of a society’s laws and constitution envisioned by classical political philosophy and by the traditions of civic republicanism. The laws shape the people as the people shape the laws, and that process is itself a facet of constitutionalism. In this respect, our system involves not only a particular set of institutions or specific forms of leadership but also a certain kind of citizenship.
American constitutionalism requires a distinctly republican virtue, and cannot do without it. In Federalist No. 55, James Madison put the point this way:
As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
To be a free people able to take advantage of the sort of system of government established by our Constitution, we need also to be a people with the kind of civic virtue that might “justify a certain portion of esteem and confidence.” Constitutionalism involves a recognition of this too. It is not just judges, and not just elected officials, who have some vital civic responsibilities. Every citizen does.
A properly political conception of the Constitution in this sense would rein in the role of the courts, to be sure, but it would not therefore elevate policy goals above constitutional constraints. As scholars such as James Ceaser, Robert Nagel, George Thomas, Greg Weiner, Adam White, Richard Reinsch, and the late Peter Lawler have argued in various ways, such a conception would recognize the part that citizens and their representatives must play, alongside and in competition with the courts, in resolving disputes over power and authority in our system. And it would recognize that when we speak of our Constitution, we speak of the character of our society.
That character can change over time, even though the words on the page do not; how we as citizens approach our system of government can change, even if the ways in which judges approach it should not. The Constitution creates and protects a broad arena for political action, and it permits (without requiring) a broad range of possible reforms and transformations of our common life over time. Those are best worked out politically. When they are instead left to the courts to determine, we confuse legal and political constitutionalism so that what should be negotiated becomes mandated instead, often undermining the legitimacy of the resulting arrangements and making a dangerous hash of the relevant areas of law — as we have seen in nondiscrimination law, abortion law, administrative law, and other arenas over the past half century.
The boundaries between these different conceptions of constitutionalism are not always perfectly clear, of course. There are times when political constitutionalism, broadly understood, may be very relevant to legal constitutionalism — as we find for instance in some contemporary disputes among originalists about the standing of the Declaration of Independence as law, or about the relative importance of individual rights and institutional responsibilities. There are times when the Constitution’s role as a policy framework becomes inseparable from its institutional character, and forces us to ask about the ultimate purpose of a legislature or a court. But these are nonetheless four distinct facets of constitutionalism that refine and enlarge one another in ways that make it easier to grasp the deepest meaning of the Constitution.
This kind of broader constitutionalism is an extension of, not a substitute for, an originalist approach to judicial interpretation. Reading the text as it was written is the judge’s job, but the judge is just one constitutional actor, and not in every instance the appropriate or decisive one. Our grasp of that truth has been degraded over time, and our contemporary over-emphasis of legalistic and policy-oriented constitutionalism is the result of a kind of deformation of our constitutional culture, driven in part by some peculiar notions of the functions of the judge. Understanding how that has happened should help us see that a recovery of our constitutional order will depend on more than just appointing good judges. It will depend on our recovering a richer and more complete understanding of who we are as a people, and so of what our Constitution really is.