Constituting Unity

We live in an age of animosity. Americans are polarized, and often bitterly divided. And the institutions of our public life seem only to exacerbate our discord. Congress, the presidency, and the courts have all become arenas and objects of culture-war enmity, so that frustration with the constitutional system’s assorted dysfunctions is rampant. Too many Americans are therefore persuaded that our Constitution is unsuited to our contemporary circumstances—that it assumes a more unified society than we now have, makes it too difficult to adapt to changing times, and so in this divided era can only make our problems worse.

But what if we are divided less because our constitution is failing us than because we are failing the Constitution? What if the framework of our democratic republic could offer us a guide to the hard work of fostering cohesion and forging common ground?

In fact, just that sort of work is a crucial purpose of the US Constitution. It is not its only purpose, of course. The document is meant to enable American self-government, on the terms demanded by the Declaration of Independence and in light of the imperatives of order, justice, virtue, liberty, and safety, among others. The preamble to the Constitution nicely summarizes its formidable aims. But that list of objectives does begin with the ambition to “form a more perfect union,” and the modes of governance created by the Constitution compel a fractious people to build coalitions and seek mutual accommodation.

The Constitution’s unique approach to that work of cohesion defines a great deal about our system of government. And a critique of that approach to unity has long been at the heart of the progressive repudiation of the Constitution. A clearer grasp of both could point the way toward some governing reforms that could not only help our institutions function a little better but might also help ease our divisions.

Madisonian Unity

The framers’ emphasis on unity is evident not only in the document itself but in much of what they had to say about it. The first third of The Federalist is all about the vital need for union, for instance. And those essays also illuminate the complicated character of unity in a free society.

This is especially striking in the thought of James Madison, who was uniquely attuned to the dangers of division and faction. Madison outlined a distinct understanding of the nature of political unity, which begins from an apparent contradiction. On the one hand, Madison insisted that disagreement about fundamental questions is inherent and unavoidable in a free society. He put the point bluntly in Federalist 10: “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” But just a week later, writing in Federalist 14, Madison warned his readers not to despair of union:

Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow citizens of one great, respectable, and flourishing empire.

Americans will never stop disagreeing, yet they should never give up on living as one nation. Unity is achievable provided we do not expect it to mean unanimity. So what should we expect it to mean?

Embedded in the Constitution is a classical approach to this crucial question, an Aristotelian answer that looks to politics as an arena of action capable of what Pierre Manent has called the “production of the common.” Simply put, in a free and (therefore) diverse society, unity does not mean thinking alike; unity means acting together.

That’s not to say that citizens start out with no common foundation. We aren’t strangers to each other, and we have some basic principles in common—especially those laid out in the Declaration of Independence. But although those widely accepted principles impose some moral boundaries on American political life, there is enormous room for disagreement within those boundaries. This includes some significant disagreement about exactly what the Declaration’s principles actually mean regarding the nature of the human person and the proper organization of society, let alone disagreement about discrete political and policy choices in response to the needs of the day. Our politics is unavoidably organized around these disagreements and requires us to find ways to act together without fully resolving them.

But how can we act together when we don’t think alike? The United States Constitution is intended in part to be an answer to precisely that question. Almost everything that is mysterious and frustrating to many contemporary Americans about our system is a function of its being an answer to that question. The progressive critique of (or assault on) the Constitution is a result of denying or ignoring the need to answer that question. And a great deal of the dysfunction of our contemporary political culture is a consequence of failures of constitutional practice that stand in the way of putting the Constitution’s answer to that question into effect.

That answer is evident in the design of all the key facets of the Constitution. Acting together when we don’t think alike requires creating some space for competing approaches to governance; compelling opposing factions to bargain, negotiate, and seek accommodations that not only avert conflict but bring us closer together; administering the government in steady, predictable ways in accordance with those accommodations; and enforcing clear boundaries on the power of majorities and public officials. This is the work of federalism, Congress, the president, and the courts, respectively. But it all requires a citizenry well formed in core republican virtues by the very experience of working together even when we don’t think alike.

This is a fact we often miss about our Constitution. It works by setting competing interests and powers against each other, which critics sometimes caricature as substituting an almost mechanical proceduralism for morally substantive civic formation. But that is precisely wrong. This approach actually begins from the insight that, in order to be properly formative, our politics must always be in motion—that moral formation is a matter of establishing habits, and that civic habits are built up by civic action more than by a proper arrangement of rules. The different interests, priorities, and power centers set against each other in our system do not rest against each other, like interlocking beams holding up a roof. Rather, they push, pull, and tug at each other and unceasingly compete for position. They are living political actors, not inanimate structural supports. And none can achieve anything without dealing with the others, who are always in their way. The result is a peculiar style of politics, which feels frustrating and acrimonious at almost any given instant, but can be remarkably dynamic in the long run.

Dynamic may not be the word that comes to mind when you reflect on the usual spirit of our politics. A sense of stalemate is frequently characteristic of American government, and sets it apart from even the governments of some other modern democracies. Because our system tends to prioritize bargaining and coalition-building over decisive policy action, it is always in the process of struggling to get unstuck.

But that sense of stalemate generally is not the last word in any political battle. It often characterizes just one phase in a long story of action and reaction, move and countermove, in the course of which the various actors in our politics are gradually penned in, made to confront one another, and forced to wrestle toward some agreement. This leaves our political system always feeling unsettled—like no cause is ever truly won or lost. But it is also why that system is so often able to create more winners than losers in divisive struggles. Because almost no victory is ever complete, almost no defeat is ever total either.

This is a way of genuinely forging common ground—not just avoiding explosive conflict but actually facilitating national feeling and unity.

Unity in Practice

This peculiar approach to building cohesion characterizes the work of the system’s key institutions.

American federalism is intended in part to reduce the number and scope of political controversies that have to be resolved uniformly at the national level. Federalism emerged as a compromise at the constitutional convention, between partisans of a centralized national state and champions of a decentralized confederation. The dispute ultimately came down to one core question: Would the national government govern the people directly, with the states serving as its administrative appendages, or would the national government govern only the states in a few discrete areas while the state governments alone would then have direct contact with the people? Unable to agree on either approach, the convention worked its way toward a novel concept: The state governments and the national government would both govern the people directly, but with regard to different matters.

Broadly speaking, the federal government would govern the economy, diplomacy, and defense—which may sound like a short list, but (especially given the reach of economic policy) encompasses a great deal. And the states would continue to govern everything else, including deploying the core police powers that constitute most of what government does. That peculiar “compound republic,” as Madison called it, can permit our national politics to specialize in national challenges that require broad agreement, while state governments can focus on matters nearer at hand in their own different ways. This allows for a diversity of governing approaches to coexist at once, even to compete, without having to be resolved into a single national approach.

This has never been a simple matter, of course. And in particular, the decision to leave the question of slavery and race up to the states proved both wrong and untenable, to put it mildly, and ultimately had to be reversed on the battlefield for the sake of both justice and union. With regard to many other contentious if less existential questions, however, such a separation of governing authorities offered and could still offer a practical means of allowing Americans to contend with their diversity while still forging a cohesive national identity.

Those questions that do need to be resolved at the national level are intended first and foremost to be addressed by bargaining in Congress. “In republican government, the legislative authority necessarily predominates,” Madison wrote in Federalist 51. And while this has its costs and dangers, it is as it should be. Republican government is representative government, and although the presidency and (to an extent) the courts are ultimately accountable to the people too, only Congress is designed to be representative of them. By representing our plurality, our national legislature can allow for negotiations among the key factions that compose that plurality. Congress can function as an arena of contention, coalition-building, and at times even integration, as the representatives of different American points of view oppose each other, are compelled to find ways to accommodate each other, and in some respects come to understand themselves as engaged in a common effort—in ways that can reflect back on their constituencies.

Madison took this to be perhaps the primary advantage of representative institutions. They can refine and elevate public sentiments and passions and give them forms more amenable to negotiated accommodations so that they may be turned into coherent governing objectives. The people’s representatives can reach arrangements that the people they represent never could.

Courts are not the proper venue for mediating among competing visions of the public good.

This is why Congress is not simply majoritarian. As Philip Wallach has put it in his brilliant and essential new book Why Congress, “Blunt majority rule is about domesticating brute political force into a somewhat gentler form; but effective representative government reveals to us which of our interests can be joined together to support shared public endeavors and which cannot.” Achieving that requires slowing down domineering factions, and judging majorities by their size and durability, not their intensity. Bicameralism helps to do this, as does the separation of powers. And so do elements of the rules of both houses that restrain narrow majorities. The Senate filibuster, which is not required by the Constitution but certainly advances its vision of balancing majority rule with minority rights, is perhaps the best example: It forces our polarized parties to deal with each other, avoid big mistakes, and seek incremental compromises, especially if they can only claim narrow mandates.

This can work even in our divided and cynical times. Consider the first two years of the Biden administration. The president’s party had one of the narrowest congressional majorities in American history, yet it decided it would significantly alter the election-administration laws of every state by federal statute, and do so unilaterally—with the support of every congressional Democrat and zero congressional Republicans. This was a shockingly reckless ambition, especially when Republican voters in many states were already skeptical of the election system. Today, in retrospect, some Democrats can surely see what mad civic vandalism they were contemplating. But in the partisan heat of the moment, they were restrained only by the filibuster. Meanwhile, the filibuster also facilitated the passage of the only significant bipartisan bills in that Congress—which involved modest but meaningful compromises on important issues like infrastructure and scientific-research funding, gun regulation, and reforms of the Electoral Count Act. This is exactly what the restraints on narrowly partisan action in Congress are meant to achieve.

But it is awfully messy too. This kind of legislature facilitates policy advances in fits and starts, and renders big, coherent policy programs mostly untenable. Policy produced this way is inherently muddled. But it is also more accommodative, and therefore more legitimate. It is the product of a system geared to contain divisiveness, not maximize efficiency.

The task of turning Congress’s negotiated frameworks into functional administration falls to the president. Where Congress is structured for deliberation and accommodation, the presidency is built for action. But the president, too, has a crucial role to play in facilitating national cohesion—not only by keeping the nation secure from foreign threats but also by providing a stable backdrop for our national life. Here again, Madison saw things exceptionally clearly:

Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government. Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society.

Stability, consistency, and predictability—or “steady administration,” as Hamilton put it—thus forms the president’s distinct and crucial contribution to the unity of our society.

Stability is essential to social peace. As Madison argued in Federalist 62, precarious, changeable administration makes it impossible for people to feel secure, to make plans, to take risks, or to engage with each other across lines of difference. And unsteadiness in government makes it impossible for anyone to be a faithful, law-abiding citizen. These arguments do not apply exclusively to the executive, of course. They are crucial with respect to Congress, too, and for Madison, they were particularly relevant to the role of the Senate. But it is the president, because of his capacity for unitary action and direction, who bears the greatest responsibility to act with steadiness, to avoid sharp changes of direction or reversals of course (even his predecessors’ course), and to keep our government stable and secure.

This does mean the executive should also help focus Congress’s work on some key priorities. The president is empowered to propose legislative measures to Congress and to exercise a veto, tools that are expected to give some direction to our politics. But his chief purpose, beyond the defense of the nation, is to turn Congress’s negotiated directives into steady and consistent administrative action.

The courts are also essential to making greater unity possible, but not in the way we might first imagine. The crucial service they provide on that front is not the resolution of the disputes that divide our free society. Courts do resolve disputes, of course, but they are intended to resolve disputes over what the law is, not what it should be, and so they are not the proper venue for mediating among competing visions of the public good. Our great public disputes need to be resolved through the work of the legislature above all. The most valuable service the courts provide to the cause of national unity—alongside their other crucial purposes—is therefore in their policing of the rules and boundaries of constitutionalism, and their restricting of the power of majorities and of public officials to pursue end-runs around the structure of the system.

Such end-runs are now rampant, and none of the institutions now work quite as intended, in no small part because the Constitution’s vision of the nature of unity in a free society has long been highly controversial and contested. That controversy has been at the heart of the progressive critique of the Constitution, which has deformed our system over time.

The Wilsonian Temptation

Arising in the wake of industrialization and the enormous social and economic dislocations of the nineteenth century, the constitutional program of progressivism began from the view that American government was all restraint and no action, and therefore was just not up to the challenges of modern life.

Woodrow Wilson, the deepest of the early progressive theorists before he was a politician, disputed precisely the Madisonian conception of what unity must mean in a free society. Like many of the most profound critiques of our system, Wilson’s case was essentially integralist: He thought the parts of a system of government (and indeed the various institutions of a society) had to all work together, guided by the same vision and pulling in the same direction. The framers, he argued in his 1908 book Constitutional Government, operated with a Newtonian image of government.* But in reality, “government is not a machine but a living thing. It falls, not under the theory of the universe but the theory of organic life. It is accountable to Darwin, not to Newton.” And this meant that separating powers and setting interests off against each other made no sense: “No living thing can have its organs offset against each other as checks and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose.” He saw society as one living thing, not as an assemblage of living things.

In other words, Wilson explicitly rejected the idea that it was even possible to act together without thinking alike in politics. Contemporary progressivism is similarly integralist, insisting that every institution in our society, private and public, must be engaged in the same social crusade—no exceptions, no exemptions—and implicitly that there can be no society without a single, comprehensive common project. There are some on the right who agree.

Taken to its logical conclusion, this would mean that no sort of free society was possible. But Wilson was only calling for an incremental step in this direction, which would require a different form of democracy based on a more radical ideal of majority rule. He thought democracy required a politics in which different parties offered comprehensive policy programs, the public selected among them on election day, and then the winning party would have essentially unlimited power to pursue its program until the public voted for someone else. The competition among factions in society would not be resolved by bargaining among them but by letting whichever has a majority deploy all the powers of government in the service of its vision. The Westminster model works more or less along such lines. It is a legitimate democratic model of government, geared more to the demands of administration and accountability than deliberation and social peace.

Wilson was not deaf to the need for unity, but he was blind to the logic of building cohesion by representing plurality. Unity, he thought, should be achieved by unitary leadership, and therefore above all by the president, who alone has the national mandate to speak on behalf of the whole society.

This critique pointed toward dramatically different ways of understanding each of the key institutions in our system. The havoc of federalism was anathema to the progressive desire for an integrated national vision, which led the early progressives to describe their agenda as a nationalist program. As Theodore Roosevelt put it in 1910: “The New Nationalism puts the national need before sectional or personal advantage. It is impatient of the utter confusion that results from local legislatures attempting to treat national issues as local issues.” They sought to conceive of state governments as agents of Washington, or at least as engaged in common enterprises with the federal government. And of course, American federalism has moved in just that direction, with only a few reversals, for a century.

The unifying potential of federalism is rooted in its capacity to reduce the quantity of divisive questions that need to be resolved at the national level and to provide some space for a diversity of answers.

Congress also struck the progressives as hopelessly messy and unfocused. A more Wilsonian Congress would be answerable to party leaders and party platforms, rather than serving as the scene of slow and incremental bargaining. The appeal of such a model is by now thoroughly bipartisan: The most Wilsonian congressional leader of the modern era has been Newt Gingrich, a Republican Speaker of the House. And its transformation in this direction has left Congress more divided, more partisan, and less productive.

The president was the key figure in the progressive political imagination, thanks to his capacity for coherent, unitary action, so that administration looks like what the progressive critique of the Constitution wishes legislation was. That has created an irresistible temptation to substitute administration for deliberation, and essentially to pursue legislative action without legislative forms. This is dangerous for administration itself, as it puts the president in a position he was never intended to occupy and is not equipped for. But it is even more dangerous for national unity and cohesion, as it creates precisely the instability that Madison worried about, with every new president spending half his term undoing his predecessor’s administrative actions and the other half taking actions his successor will undo. That tends to dramatically raise the stakes (and therefore the temperature) of our presidential elections, and to leave American government in a permanent state of frantic and divisive flux.

The progressives at first viewed the courts as an obstacle to their ambitions, as indeed the courts at first were. But in time, the federal courts not only abided progressive economic regulation but came to aggressively champion progressive social reform—especially through the creation of new personal rights that sought to take key policy debates out of the legislative arena and so to impose an integrated progressive vision on our public life. On that front too, the appeal of a rational, coherent program overwhelmed for a time the imperatives of fidelity to the constitutional order.

This progressive program is not senseless, and its critique of the Madisonian vision of political life is not crazy. But it is mistaken, and profoundly unhealthy for our fractured polity, because it ignores the imperative to build cohesion in a free society. The progressives insisted that the American system was not up to the challenges of modern life. But their critique ignored what may well be the preeminent challenge of modern life: the challenge of multiplicity and diversity, and therefore of division, which Madison saw far more clearly than they did.

Progressivism implicitly rejects the legitimacy of that diversity. It assumes that divisions in the American body politic are not inherent to a free society but are functions of some people choosing to pursue their private advantage at the expense of the public good. It intimates that unity is the natural state of our society but various “special interests” insist on pulling the country apart, so that what we require from politics is a consolidated voice of the public that will speak up for the whole.

This is a naïve fantasy masquerading as cold-eyed realism. And its effects have worsened our divisions and made greater unity seem impossible.

Cohesion in Practice

The progressive deformation of our constitutional system is not the reason we are divided. But it does explain why we think our Constitution can’t help us address our divisions. In reality, the Constitution was designed with just that purpose in mind, and it could make a real difference if we let it. Considering the system’s difficulties through that lens could help us sketch the outlines of some needed reforms.

Reformers of American federalism, for instance, should look especially to disentangle state and federal governance as far as they practically can. The unifying potential of federalism is rooted in its capacity to reduce the quantity of divisive questions that need to be resolved at the national level and to provide some space for a diversity of answers to such questions in the forms of different individual choices and communal practices. “Cooperative federalism” is anathema to this cause, and reformers should look to distinguish state from federal domains, even at the cost of nationalizing some issues (like health care) if that makes it possible to localize others (like education).

In Congress, reforms would have to reignite the engine of cross-partisan bargaining, by moving power from party leaders to the middle layers of the institution—and particularly to committees and to intra-party factions. Members should see that the vote they control is a source of leverage useful only in negotiations, so that to exercise their power they need to be willing to bargain with the opposition, not just to complain about it on the internet. They should want to create opportunities for bargaining (which they are now often denied by party leaders) and use those opportunities to build coalitions. This could be aided, for instance, by allowing committees in both houses to control some floor time, or by rethinking the consolidated budget process. There are countless potential reforms along these lines, but they are unified by an idea of the purpose of the institution: Reformers should want to make cross-partisan bargaining in Congress more likely, rather than (as too many of them now incline to think) making such bargaining less necessary. They should prioritize the forging of cohesion over even their favorite clever policy idea.

Reform of the executive branch actually depends on Congress too. A lot of executive overreach is a function of congressional underreach. There are some actions a president could take to rein in the worst administrative excesses—like subjecting the “independent” agencies to formal oversight. But ultimately, the sorts of changes most needed are not technical structural reforms like those that could be helpful in Congress, but rather forms of restraint and self-conscious circumspection by our presidents, rooted in an understanding of what the chief executive has to offer the cause of greater unity.

The courts require much less change. And unlike the other institutions of our system, the federal courts have actually undergone a kind of constitutional renaissance in recent years, and are much closer to performing their proper constitutional role today than they were, say, half a century ago. But to keep the ground they have gained, they must resist the urge to inflate their own role and displace other key constitutional actors. And to gain more ground, they must rediscover their responsibility to police the boundaries of our constitutional structure, not just to curb the creation of new personal rights, and so to make the renewal of the rest of the constitutional system more plausible.

These are merely guideposts, not detailed agendas for reform, needless to say. But they gesture toward a way of seeing the Constitution not as the problem but as part of the solution to the bitter division that now bedevils our society. And they suggest that the long-running dispute between progressives and conservatives about the Constitution has been at some level a dispute about the possibility of forging national cohesion in a free society, and indeed about the very possibility of republican government.

 

This essay draws on some themes of the author’s forthcoming book Charter of Unity, which will be published next year.

*Correction note: A previous version of the essay incorrectly attributed this argument to Wilson’s 1885 book, Congressional Government.