paragraph 3, of the standing rules of the senate, i hereby appoint the honorable ben ray lujan, a senator from the state of new mexico, to perform the duties of the chair. signed: patty murray, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 10:00 a.m., frid >> senate lawmakers currently in their august recess for the state work period. they'll continue to hold the brief sessions in the hart senate office building due to renovations in the chamber. senators are scheduled for monday, september 9th. we'll return to our book tv programming. >> it establishing a critical framework for a society that generally agrees with the principles, but doesn't agree about much else.

doesn't agree what that means in a lot of practical situations. the constitution is exactly about how to make that we a reality as a practical matter in the face of division and in a sense, that is what this book is about. it's about how the constitution can function as a framework for unity and for cohesion in a divided time. we are obviously short of unity and cohesion now in america. and the notion that the constitution could help might seem strange at first. americans are very divided and polarized and among other things, that's made us frustrated with our system of government. because that system forces us constantly to deal with people who disagree with us. so too many americans are persuaded that our constitution is just not suited to our contemporary circumstances, that it's a relic of a past age or that it's undemocratic, that it makes it too difficult to adapt to changing times so in this educateded era, it can

only make our problems worse. this book argues that that is roughly opposite of the truth. the constitution is not the problem we faced, it is much more like the solution. it was intended precisely to address the problem that we have, the challenge of how a divided society can hang together and govern itself. it was designed with an exceptionally sophisticated grasp of the nature of political division and university and aims to create common ground and there in part to unify us. it lays out what it means by seeing what the constitution is and characteristic modes of operation looks like, how it shapes the public and then by working through the purposes and history of its various institutions, federalism, the congress, the presidency, the courts, also, the extra constitutional institution or the party same. it considers all of those in light of the constitution's prioritizing of national unity

and finally in the last chapter, what unity actually means in light of all of that. now, i'm not going to march you through all of that here and we are here for a conversation, but let me instead offer you five quick propositions i think emerged from considering the constitution in this particular peculiar light. prosecutions that are the pillar of the book and all of which are now contested or maybe just unfamiliar. the first proposition is about the nature of unity itself and diverse society. it emerges from what seems to be a kind of couldn't couldn't contradiction, and he thinks it's the part and a more perfect union of the

constitution. and the federalist papers are about union and unanimity, madison thinks, is impossible on a free society on any subject of real significance. he says it bluntly in federalist 10. as long as the reason of man is falable. a sense of intense disagreements. what does unity mean in that circumstance? the constitution is rooted in the premise in a free and therefore, diverse society, unity does not mean thinking a like. it means thinking and acting together. thinking and acting alike and together are different. and this distinct notion of unity is central to

understanding our constitution. it invites the question to which the constitution is ultimately an answer. i say unity means acting together not thinking alike and that forces us to ask, how is that possible? how can we act together when we don't think alike? that, i think, is the foremost question to which the constitution is an answer. all of it's modes of action, every one of the institutions it creates are intended among their other purposes to answer that question. a lot of what is mysterious and frustrating to many americans now about our system is a function of it's being an answer to that question. of it being able to design for those who don't fully agree to act together. how does it do that? again and again in its various institutional forms and especially in some of those we find most frustrating, the constitution finds way of compelling constitution and negotiation of coursing differing factions into common

action, into engagement with each other, into bargaining and deal making. and common action is not always gore cordial. it is directed to finding mutually acceptable accommodations, recognizing that we do disagree yet, do belong together. that's not simply a matter of counting heads. some contemporary critics of the constitution argue that factional division should be solved by simple majority votes and dismiss our system's bizarre, complicated arrangement of overlapping institutions as undemocratic, as pointless, but the constitution is a lot more sophisticated than these critics are. it's much more sensitive to the dangers of social division, accepts the premise that only majority rule can public action, embodies the counter

veiling insight anyone familiar with the history of democracy and history of the united states that majorities can sometimes act oppressively, too. it recognizes that narrow majorities in particular are often ephemeral artifacts that created them. they don't tell us something real about the society and demands that popular consensus be by multiple, reasonably broad majorities that represent themselves in institutions that elect themselves by different constituencies in different ways. and that's the second proposition, meaningful policy victory requires broad coalition, not narrow majorities. you would think that that would be obvious, but if you look at our politics for five minutes today, it's not obvious at all. in fact, everybody seems to have forgotten it. building coalitions through negotiation and competition is now taken to be a betrayal, a betrayal of party, a failure of

nerve. politicians promise to fight for their voters as they should, but too many politicians and voters have forgotten what it means to fight in our system, what it means to fight is to bargain effectively. to gain advantage by building a broad coalition that advances your priorities. politicians now behave as though fighting means refusing to negotiation, but in fact, that's what losing looks like. refusing to negotiate means giving up the only power you have because what you win, when you win an election in the american system is a seat at the negotiating table. to refuse the seat is to refuse your win, it is to lose. the fact that we've forgotten that is why it's out of whack and a big part of why, our politics feels so broken and divided. that is particularly evident in congress, the first and foremost part of our system,

it's the primary venue for bargaining at the fundamental level. the fundamental work of acting together when we don't think alike is how that happens. that's why it's particularly disturbing to find in congress the attitude negotiating with the other side is a betrayal or a failure, it's actually the job description and that attitude has seeped into a lot of how we think about fixing congress, too. it's not hard to find people who think that there's something wrong with congress. a bipartisan community of congressional reformers in washington. and beneath what seems like agreement at the beginnings of those conversations, agreement that congress is dysfunctional, there's actually a very profound disagreement about what function it is failing to perform. what is congress not doing? most people would answer, i think, that it's not passing the legislation they think is essential. it's not acting on entitlement

reform or climate change, whatever you take to be the crucial challenge of the moment. that's the common view, but i think it's a mistaken view of what's wrong with the constitution. what congress is failing to do enable cross partisan, and enable us to act together when we don't think alike. it has enormous implications, people that are frustrated with congress's failure to move legislation rather than the failure to advance some idea of cohesion tend to call for things like eliminating super majority requirements like the senate filibuster or further empowering and centralizing power in the leaders in both houses. they have in mind something more like parliamentary government as a model what it is we're missing, but that kind of model i think is not ultimately likely to lead to durable legislation in the system and undermine the capacity of our politics to

engage in common work toward reconcilable goals. reforms should point in the opposite direction, things like empowering committees and intra party factions not the leadership, reinforcing the super majority requirements are really the only reason there is in i-- any cross-partisan work. and reforms in congress should make cross-partisan work more likely rather than less necessary, which is how they often work now. the approach to the problems with institutions of government, what's the purpose of the institution, so what is it that it's now failing to do could also inform how we think about the modern presidency because i think we're almost as confused about the presidency as about congress. like our sense of congress's purpose, our understanding of the executive is dominated by progressive policy action over the madisonion political order

or social cohesion. we think about the presidency now in legislative terms, we think it's a representative institution and purpose is to advance the policy agenda of the party that last won the election. the presidency is unitary. it's an administrative office. the president is to have a role in driving the policies and setting priorities, but the kind of bargaining and accommodation that is supposed to move policy can't really happen within the office of the president. that means the president can't move unity by action. and along with his other important roles in our system, his particular role in advancing unity is not action, but steady administration. contemporary presidents because they value their ability to

drive policy action, essentially claimed to do the work of the legislators when legislators won't do it. when he undoes everything that his predecessor did, and then his successor will undo, the work that's necessary to the executive in no part of the job not only for the administration, but cohesion and dramatically raises the stakes of our elections and the temperature of our politics because it means that key questions don't get resolved by bargaining and coalition building, but by participate turn, by hard stops, and everything depends on who the president is. and so my fourth proposition to you, the fourth implication of looking through the lens of national unity, reforms of the executive should prioritize steady administration and not

assertive policy making. finally, when it comes to the third branch, to the courts. i don't think that an agenda of reform is what's needed. they have a crucial part to play in advancing unity, too. it's not the part that we imagine. it's not rooted in the ability to resolve disputes. that's what they do. but they're intended to resolve disputes over what the law is, not what it should be. they're not the right venue mediating between the public good in america. our great public disputes need to be resolved through the work of the legislator above all and the most valuable service to the cause of national unity is in their policing of the rules and boundaries of constitutionalism. the restricting of the power of majorities and public officials who purse end runs around the structure of our system. and unlike the elective branches, they are closer now to serving their constitutional

purpose than a generation ago. they do need, i think, more of a focus on constitutional structure rather than the policing of personal rights, but the transformation of the courts in this century has been an extraordinary thing to see. so when it comes to the courts, the final proposition i would offer you is a function of that transformation, it's that the lesson of conservative success in the courts is that we should be fighting for the constitution, not against it. conservatives and constitutionalists had every reason to give up on the judiciary in the second half of the 20th century, rather than give up on it, they set about renewing its commitment to proper purposes through a project that began as intellectual work, and then evolve into institutional work. at the federalist society and elsewhere supported by political action that enabled a genuine transformation of the judiciary, a labor of love of the constitution, love of the

country and that's exactly how we should think about the constitutional challenges that we think now. we are, with regard to congress in particular, roughly where the right was with regard to the courts in the mid 1970's, the idea that we could reform congress to do its job, seems hopelessly naive right now, but it's not more naive than what they had 50 years ago, that we could have originalist judges dominating the judiciary. strategic naivete is crucial to reform work. you have to be naive what you love the most. you're not a cold-eyed realist about your spouse and friends and you should be naive about our country, too, and the prospects. not so naive to be optimistic, don't do that, but naive enough to be hopeful. to fight for our constitution and not against it. there are a lot of people now, including some on the right who are ready to give up on the

constitution or to dismiss it as inadequate to a society as divided as ours, but i think they're wrong. constitution was intended to address the problem that we have now. the challenge of governing ourselves in spite of deep divisions and might bring us closer together and help us understand ourselves better as one society engaged in common work, despite a diversity of beliefs and desires and interests that is not going away. helping the constitution do that requires understanding how it was meant to do that, and transforming that understanding into an agenda for reform and for action. that's what i've tried to offer in this book and what a lot of you do every day so thank you for that and thank you for being here. [applause] >> all right. thank you for that. we are going to have a little

conversation here and open it up for questions for you and from our remote audience i believe is going to be submitting questions under the #aei american covenant. so get your questions read. i want to start talking about they and them instead of we and us. and talk about some comparative constitutionalism. there's so much praise for our constitution in this book that it raises the question for me, are other constitutions just inferior or is ours just better for us? >> it's a great question. i think it's a little bit of both. the united states, you know, our system in a sense is so effective that it allows us to compare ourselves with democracies that have much simpler problems than we do. so you find political scientists saying, you know,

the belgian system is more representative, the nor we -- norwegian is. >> the united states it works as well as the european system because ours is well-suited to our system. i'm not suggesting that the belgians should adopt our system, i don't know, i think they're doing fine. i do think that we should not be adopting their system because it's not dealing with the complexity of a mass, vast democracy like this. the core difference is that the parliamentary systems really do empower narrow majorities. if you have a majority coalition, you get all the power until you lose the coalition.

so, the mandate means the government is yours. the united states does not work that way. it does not empower narrow majorities. it tells those narrow majorities, you have to grow if you want to do anything that endures. that is very frustrating. every recent president found themselves in a meeting, why am i talking to them, i just won and the constitution and system works that way. unless you have a very large majority and the democrats learned in the obama years, having a filibuster proof majority doesn't get that. majority power is the source of legitimacy and also the source of very great trouble and danger and our system is especially alert to that second problem and so, i think that it is particularly well suited to our situation as a result of that.

you know, i'd recommend it to others, too. i think it takes account of human nature and some the channels of challenges of political life to the parliamentary system, but it's not superior in many ways, in some not representative. my advice to friends abroad is a little like edmund burke's twice to the same make the most of your tradition and let us do the same, for god's sake. >> you dealt a glancing blow to people on the right who you suggest consider our constitution to be inadequate today, but i wonder if it isn't truer to say that they think it's sort of lost beyond hope of recovery, but it's a great constitution, but we now have-- you yourself in your book document all the ways in which we have a kind of wilsonion spirit inhabiting the shell of

a madisonion system and don't think of themselves as anti-constitutional as much as post constitutional. why are they wrong? why should they not give up hope on the constitution as a dead letter? >> first of all, anytime conservatives say we're post something, we should just stop. we don't -- i don't think that the fundamental political questions are different from one time to another, i really don't. i think the basic durable question, how do we create a world worthy of our children are always the questions we have to ask and that the answers to those questions more or less look alike all the time. there are ways to improve. there are ways that we fall back, too, but the core political questions does not change fundamentally. secondly, i think that every american generation would have had the temptation to say, well, yes, but now in our time,

things are really bad and these people are really awful and they have really broken things. if the generation that lived in the 1860's didn't say that and the generation that lived in the 1960's didn't say that, i don't think we have a very good confuse as the generation living in the 2020's to say that. that kind of view that this is so broken we don't have to try anymore is a form of escapism, it's an excuse for not trying anymore. the work is hard. the work of preservation and conservation in a country like this, and renew our progress is hard work and it would be very hard work to do now what i'm suggesting and what we do here at aei. but the fact that it's hard is not an excuse for not doing it. there is no excuse for not doing it, because the alternative to sustaining this system is not that we get to win, we just don't have to deal

with those other people anymore. if you look around the country, i don't think that's really what would happen and the same thing to the people on the left. if you eliminate the protections for minority rights in our system, you will discover that progressive law professors and traditionalists catholics, they're not a majority. they don't define the future. and they would find themselves in trouble. and that doesn't mean they're wrong, i think some of them are very wrong, it doesn't mean that, but all of us should understand ourselves belonging sometimes to minorities and sometimes to majorities and therefore we should want a system that empowers majorities in a way that's protective and it's worth fighting for even though it's very hard. >> the book, i'd say is deeply conservative, but not insistently so.

it operates on conservative human nature as those of the founders and quotes the federalist papers more than nonconservative books and you come across more references to burke than to wall in it. if you're the sort of conservative who is interested in policy victories and in smaller governments and smaller federal government in particular, what's in this vision for you? >> well, i think that if we understand the system in the way that i've described it here and that i describe in the book, we do end up with a system in which the role for the national government is smaller and more constrained and more focused. it's not-- this is not a libertarian book and it's not a book how to spend less, i think that would be nice, but i don't think that at the moment the highest priority for conservatives ought to be thinking about the size of government in that sense.

we are in a moment when the basic form of our government, the basic character of our politics is on the table in a way that should worry us and that means that we have to be making the argument for the basics and remind people why their inheritance is not a burning pile of garbage, but extraordinary prize. the fact that we live in this country that we did not create and we get to find the freedoms and possibilities that we have is something we should be grateful for. i think part of what is required for us in doing this responsibly is thinking about the role of government in a responsible way. that's what i would do within a working system. that's what i would do in a congress that's functioning. i think in a funny way, the kind of debates that we think of traditionally as policy debates, debates how to reform medicare or how to -- how to

think about the defense budget, those debates are not happening in the right way at this point. they're not happening in the right way because our political culture is broken and we have to think about why that is, too, and maybe first before we can even get to a place where we're having a constructive argument about how to restrain the size of government or think about the role of government. so, i think traditional policy debates matter enormously, i know where i stand in those. this is a book about infrastructure. it's a book how to get to the place where we're having that debate in a way that could turn out well. >> i suggest this is a book about infrastructure, should not be a big part of your factoring. >> fair enough, you know better. [laughter] >> one of the suggestions that you make in the book is for expansion of the house. >> yes. >> and i wanted you to how that would improve things, but also explain why you think an

existing house member or an existing house majority would be interested in doing such a thing. >> this is a counter intuitive idea in some respects. i think most of us when we look at the house we don't really think i wish there were more of these people, but it is, first of all, i think of it as a form of constitutional maintenance, the house was intended to grow after every consensus, it's connected to the growth of the population and did grow after every sentence until the 1920 census. and it would make sense for it to continue to grow by the formula that was used in the 19th century and i think it would allow our national legislature to work better, but i also think it's a way into a set of other reforms of congress. in a way, you know, when you talk to members about congressing the rules of the house and senate, especially

between the house, they're all right with you while you're describing the problems. they all think there are big problems and none are happy with their life style as members of congress, but it doesn't occur to them that things could change. it's very hard for them to imagine that there could be changes in the committee system or the budget process. i think a kind of infusion of new members in the house would create a moment where a lot of other change is possible, too. and if we're ready for that moment, which i think we are, with other ideas how the congress could be improved to better do its constitutional work, creating that moment could be useful. and so, since it's-- it's a way of bringing congress into line with the intention of the framers and a way of helping it be better representative and a way of creating an opportunity for those other kinds of reforms, i think it's a plausible way forward. how does it appeal to the average member to say your importance should be diluted by

adding 150 more members, i would do, 150 and growing much more slowly after 10 years. i think the argument to members is that the house is meant to be more representative than it is. the average member of the house now represents more than 800,000 people, at the time of the ratification of the constitution, and the first house, every member representative had 30,000 people. we can't get to that level, but we can do better and i think that members see the logic of that. i would say in general, members are opening to this idea. the leaders are not. leaders of both parties are very skeptical. >> a lot of people. >> more members would make the place work better. i think that's, too. >> i mention that you have a lot of quotations and in a lot of ways there's commentary on the federalist papers, but it's not critical and it struck me

that the two federalist papers that are most familiar to us, number 10 and number 51 are ones that come in for the most criticism in your book and this is one you might want to talk about that. >> that's interesting, yeah. those are big city federalists and the fly over federalists get ignored and this is a lot to say to us about some of the questions that we're talking about here. this is very much a madisonian book in the spirit of james madison than anyone else. his voice is heard more than anyone. and i think that madison stands out for worrying about division. there are voices that worry about social order and dynamism

like hamilton, worry about social justice and equality like jefferson. those voices are there in our political tradition, the right and the left. madison worries about social cohesion and unity, lincoln does, you can see why. but madison does without a civil war and what he worries about above all when he thinks about politics in the era of framing the constitution. so the book learns a lot from him, but i think there's a way that at certain times madison is dismissive of the need for civic virtue. he thinks that the system can work as a kind of machine that resolves the problems of bad citizenship by the operation of the institution. madison isn't always like that and you can almost see him correcting himself when he goes too far in these directions and i think they are examples of going too far in these

directions. he's dismissive of republicanism and he basically says the system is a substitute for the absence of virtue. now, the best counter argument to this in the federalists are also for madison and the book emphasizes those and i think that those counter arguments are correct. it is absolutely essential that the citizens in our society have a certain idea of their responsibilities and that there would be a kind of responsibility of virtue. the word responsibility is a very madisonian word. used to be the case that the oxford dictionary said that madison's notes was the first place it was used in english and found an earlier example, i'm upset with him more and that was a useful thing to be able to say, apparently, i with wasn't true, but the word was not in general use. and it was really both madison

and hamilton use it had in the federalists and i think it describes the role of the american citizen as someone who takes ownership of the society they live in. it's a very republican concept and i think it's ception for citizenship in our kind of republic, so, you know, the madison who says that is preferable to the madison who doesn't. >> i want to maybe push back a little bit on your thoughts about the courts policing the structure of our government. and i wonder if there's a lack of some of the institutional realism that you praise when it comes to the founders in that do we really think that the courts can play this intensive role in keeping congress and the presidency in their place, which historically, you know, they didn't really do. it wasn't, as you know, it wasn't the court that kept the congress from delegating it

into power, it's a self-respect. >> yes, i mean, congress didn't want to. part of the problem is this peculiar fact, when it comes to congress, is that the institution doesn't want the power that it has. which is not a problem that the framers really thought about. it's not-- it did not so occur to them that congress wouldn't want the power to the national politics of our government. i think the role of the courts is very distinct. the courts are reactive. i put it this way in the book. congress frames legal frame works for the future. it's a forward-looking institution. the president operates in the present and lives in the present tense always and congress looks back and reviews actions. >> the courts look back. >> i'm sorry, the courts look back and review actions in the past. and so, the role of the courts

is constrained by that fact to begin with. they have to respond to complaints. they don't act of their own accord, generally speaking, and they can only review past actions. but they do have an essential role in reviewing past actions in making sure that the structure of the system, the integrity of the system is maintained. some of the role they have is in restraining the public, majorities, doing things they're not supposed to do. all kinds of things that the constitution takes out of the reach of majorities and some of the roles are in restraining the other branches and i do think that the situation created by the willful underaction of the congress does two things at the same time. it invites overaction by the executive, which the courts need to restrain, and in itself, it creates a problem that the courts need to address. now, addressing underaction is very hard and we're finding

this now in the current term. when the courts look at chevron deference and authority to regulatory agencies, it needs to find a way to compel congress to do its own job and ultimately, to write laws that are clearer and more distinct and precise than congress tends to do. it's not simply possible for congress to tell courts to do that, but by shifting the delegation, putting more of the power to interpret the law in its own hands where it belongs, that is what judges do, it can create some pressure on congress to do its job. i don't think it's a perfect solution to this. the courts are not going to solve this problem. congress has to want the power to legislate and that's going

to require changes in the incentive of congress makes more than the action of the court. >> which brings us to the topic of political parties, a very common critique of our founding design is that the founders didn't want to have parties and parties sprung up almost immediately on the creation of the constitution, but you argue in the book that the development of the modern party system under particularly martin van buren ended up actually helping the constitutional design. >> absolutely, my great hero, martin van buren. i do love martin van buren and don't get me started on him, a little bit. he was a politicians politician, and he ran for everything, and he won everything, he never lost an election. he was a mayor, a county commissioner, a state

legislature, the state of new york, member of the house, president and vice-president. >> just one term though. >> fair enough. he knew a lot about electoral politics and the extraordinary thing about van buren is that he saw the party system collapsing in front of him. there was a kind of pseudo party system in the wake of the washington presidency, so, at the beginning, in framing the constitution, there was a sense, really, that parties might not be necessary. the constitution was written in a very peculiar time. a time in england where the structure was changing, party of king and parliament to basically parties of left and right and a peculiar time in the united states when there was kind of an agreement about the american resolution that would cross what we would think

is the left and right and seemed like durable parties might be avoidable and then the constitutional system got going and immediately became obvious that parties were necessary, that there needed to be some ways to organize electoral politics before people got elected. the parties began through the work basically of jefferson and madison and the-- they came to be organized into two parties for distinctly american reasons. the electoral party which is a strange thing, requires an absolute majority for electors for someone to be present. if no one gets the majority, the congress, the house decides who will be present. if there are more than two candidates, the election is basically going to the house almost every time and this happened in 1800, it happened again in 1824 and in a particularly bad way where the

party system, 1824 election four major candidates, all democrats and the difference between them were just personality differences. it became kind of policy differences. so martin van buren is a senator at this point. the election goes to the house. among the many odd things about that election were that the two leading candidates had the same running mate and that person was elected vice-president when no one was elected president. so they had nothing to do and they were setting there, and martin van buren described this in his memoirs. this should not be happening in congress, it should be happening in the political party. these people are deciding who is the leader of our party and proceeded for how the party could become the mechanism for selecting candidates for office, party conventions,

local party offices, call kinds of processes for nomination and selection, that could help the american system work better as a two-party system. two broad permeable messy party coalitions on paper make no sense whatsoever and allow the system to be a system where people bargain and negotiate and build coalitions, and big, broad parties train people to build coalitions. and then those people are ready to build coalitions in congress. it's a system that's a kind of missing piece of the puzzle of the constitution and that has worked very well for us for most of american history, and in a lot of ways, was the brainchild of martin van buren. the challenge we face today has a lot to do with the fact that the system was such a good fit for the constitution that the progressives who got fired of the constitution also got tired of the party system and for the same reason, it's just about coalition building, it's not

about clear decisive policy action and woodrow wilson and others, over the course-- from the end of the 19th century through the 20th century came to the view that the party system needed to be much more responsive and accountable to policy agendas and so, in a sense, our party should be much more ideological and through various mechanisms have made our party system more ideological, but also much more polarized and much less of a perfect fit for the constitutional system. our parties as institutions of candidate selection are now very, very weak. partisanship is strong when parties are week. and i think that's a lesson kind of ironic lesson that we've learned over and over for the last 50 years, it's time to rethink the way our parties choose candidates. i think it would be good to rethink in a martin van buren direction. i don't think we can really do that. conventions and back rooms and

ways of choosing candidates that don't involve voters. no politician is getting up before primaries, you people are the problem, to choose the candidates for office, you're electing witches. >> a whole ad campaign. >> and i think we need to find ways moving forward, when a party selects its candidate is not what do the craziest people at the fringes of our party think we should say on election day, how do we win the most majority. that's the party's job. i think there are ways of doing that. ... think not being easy seems o be a recurring theme. yeah, i need lifetime employment in your in your answers. we just got a few minutes before i'm going to open it up for questions. i do want to you though in a

book that is i do want to ask you go in the book that is so devoted to the possibility of the constitution are the parts of the constitution, want to leave aside the parts that been amended by reconstruction, but of the parts that you think are ill considered or if we're starting over we would get rid of? >> look, if we're starting over i think there are things we probably would do some adeptly. i think we want to think differently. for example, presidential selection. i can imagine ways that the bounds of federalism could work better if we're starting over. it's very important to remember we arer. not starting over. we have, in fact, here the longest enduring and most successful democratic republic in the world. there's a tendency i think for us as americans to think of our country as a young country, but we are not a young country. we are the oldest of the existing democracies. we have had the same essentially

the same institutions of government for 230 years. that's absolutely amazing and that's what stands out about us. americans still think, you see this in some of the catastrophism we're talking about before. we alwaysay have since his thing is just about to fall apart, that it's anki experiment, it's that really working. you listen to the founding generation they certainly thought so, or a bram lincoln in the 1830s he had good reason for thinking so and he didn't think so generation of americans, our national anthem is a song about a surviving the night. there is no other country like this. we do really tend to think that we are on the verge of collapse, but we are not on the verge of collapse. we have a lot to work with here and i think the secret to doing that well is really to begin from what we have and see where itrk can be helped to work bett. so i don't really think in terms

of starting over. i don't pretend i could do better than a f system that's evolved for 230 years in a complicated world complicated world at using the president, or at framing the two houses of congress. if we're starting over we would dutifully. i'm not sure we doan it better d that sure we're not starting over. i think we should think about incremental reforms and see where they really are problems. we arein not always good at seeg where the problems really are. in some ways this book is an exercise in chesterton fencing. gq chesterton said, he had a couple of ways of saying this. the one i like best is an analogy for this. he said if you inherit a piece of property under the fence on the property and you think it's useless you want to take it down, make sure you understand why it was put up. you may still want to take it down but if you don't understand why it was put up you probably are making a mistake because somebody did the work of putting this in there and it's really essential to see why that isn't what was a solution to.

it's important for us to approach our institutions of government in this way. to change them but surely cushion we understand why they are the way they are before we do that. that's what the book tries to do. >> all right. i'm going to open it up to you all. if anybody has a question please raise your hand. calling you and then a microphone will come your way. there's a microphone right by you so you can go first. >> thank you so much m for that, yuval. this is been fantastic. the most dysfunctional aspect to one of the most dysfunctional aspects of our system is, you touch on in the book, is the relationship of state and federal powers. it seems s as if an attempt to restore our constitutional system will require an aggressive federalism such as we're seeing some red state governors attempting. that's going to get pretty messy and contentious.

basically, scott unity review of your book that pushed this, this you are saying we need to be incrementalist, , we need to be coalition building. but what does it look like in a situation where the federal government doesn't recognize the rights of the state governors to function as it were meant to constitution? >> yeah. first of all i do think that, and scott's review is great. it's worth reading. i certainly agree that federalism is very often the scene of the most significant constitution contentions in our system. it always has a been. federalism was what a lot of the most intense debate at the constitutional convention were about. it was a kind of innovation. they faced the question of whether to have a strong national government with the states essentially as administered units, or whether to have strong states and the national government essentially as a kind of inspiration like

united nations. they decided to do neither of those things, and instead to have strong states and a strong national government each governing the people directly but in different domains. that set things up for a lot of fighting, and a lot of the significant dispute in our history have ultimately worked themselves out as disputes between the states and the national government. i think that part of what it would take for us to recover something of the bounds of american constitution now is to have some more arguments and fights about the balance of power between the states and national government. the federal government is involved a lot i of things thats very hard to justify its involvement in. and in many ways the states have invited that involvement because the federal government makes it convenient for the states to benefit from services and money

while also claiming all kinds of authorities. every governor would tell you here we balance our budget and we have a balanced budget amendment. the only reason vestry because the federal government doesn't balance its budget. they could never do that if they didn't have the borrowing power of the national government behind them, especially in times of crisis. i think the core concept that has to guide the future of federalism is that federalism is not layering. federalism involves two channels the power. one federal come wednesday. we can argue that what belongs in each one. it may be that today we should think about whether health care financing should be a federal responsibility. we nationalize medicaid. that's a debate to have. what we can't do is intermix them in a way that we do. so that the federal government and the state government are involved in the same work as

happens in welfare, h as happens in healthcare, as happens in education. neither of them is accountable for it.it neither has incentive to constrain itself because whenever there is pressure on that front they can push it off to the other one. i think we have to find ways to pull them apart again. ronald reagan in 1983 proposed the kindd of deal to the statei think sort of half seriously, that the federal government would entirely find medicaid and then return the federal government would entirely stop funding education. and at the time the math kind of worked out in such a way that it would have balanced out. that certainly would not be true today. that's the logic of how we actuallyde ought to think about reforming federalism. we had to find ways to separate these authorities. >> as a recall the governors were speeders adamantly against this. there was one governor kemp lamar alexander, who said i'll take that deal. it didn't happen.

>> you cite in your book the upside down constitution which is a really thorough and excellent explication of those ideas. >> a wonderful book. >> another question. >> yuval, you said earlier that we are in a position with regard to congress that similar to the one conservatives were in with regard to the court in the '70s. to me and this may be sort of present test thinking and let me know if you think that. but to me it makes sense the conservative legal movement was able to have the success that it had. you establish federalist society chapters atg law schools where there are people who are becoming lawyers and going to enter the field, and that doesn't seem to exist for whoever it would be that would be reforming congress. i'm wondering what you think a

path forward might be. >> i guess i think i've actually what they succeeded in doing was much crazier and more impressive than what i'm suggesting. judicy in the way that we have seen over the last 50 years was not obvious. and i think anybody who would have said that we will get to a place where there is a supreme court majority that is originalist in the sense in which originalism began to emerge here in the seventies, would have rightly been thought nuts. there was really no reason to think you could do that. what they found was both a very compelling way of thinking about the role of the judge and, as you say, a very practical way to inject that way of thinking. the profession of the law. now, there's no such profession for changing congress, but there is an advantage when it comes to changing congress, that they didn't have, which is all it really takes to change. congress is for most of congress

to want to change. right. so that's not that many people. we we know them. we go to them with phil wallach's book and we give them the book and say, this is what you should do. now, tell me what you think about that. why don't you do that? it's still going to take time. and i think that the the kind of socialization of a set of ideas about what congress is for is going to be the work of the coming years on that front. but i do think it is achievable and i actually think that socializing, that kind of idea, you know, i wouldn't overestimate what you could do on that front in two years, but i would not underestimate what you can do in ten years because congress changes fast for good and bad. there's almost no one there now who was there in 2000. and so all the people who are there now probably not going to be there in 20 years. and with the work we have to do, if we know what we're trying to persuade them of, is persuasive

work for a couple of hundred people. i think we should try. i think the takeaway there is that congressmen change fast, but read slow. yes. in the back there. yes. i agree. we might have a clog their whole. sure. yes. choice of convenience. exactly. really appreciate all your work and the talk today. very inspiring for us. you know, working here in washington, dc. i wanted to just quickly push back on one point you made a couple of times during the talk, which is that if past generations did not reform the system, fundamentally, we have no right to question it here in our modern age. and that just brings me back to the original reason why this constitution was necessary was

to manage facts means in a new age of enlightenment and an informal really a new science of politics based on social and cultural factors which the founders were acutely aware of. and i see in our generation in the formation of faction and science and, you know, modernism being complete lately, different than the late 18th century. i mean, you look at social media, you look at the internet, you look at how factions form. i mean, you can have millions of people and we have march on dc in a matter of days. i mean, it took the civil rights movement months and months get to that point. but we see the women's march to that point in just a matter of weeks. so yeah, the, the, the formation of faction and and our modernism seems very different to me. so my question is, do we not deserve a new science of politics now to deal with that

versus simply reiterating maybe the incremental reforms of a 250 year old system? yeah, great question. first of all, i wouldn't say we don't have the right to do this. i think we do have the right to do this. i think that we should think about what we want and need. and i think that we would find that the constitution we have is a tremendous resource in answering that question. this is not an argument from authority. and i don't think that we should do things. james madison did because he was james madison. i think we should ask ourselves if we persuaded by what he did and we are, then we should work to preserve it. and i am and i think we ought to be. and part of the reason for that is that in some important respects i think their science was less new than they said. i, i think madison's political science was very rooted in a kind of classical political and a lot of things we attribute madison, you know, the notion that resolve the problem of

factions by increasing their number. you know you read book four of aristotle's politics you would you would see that there that's not that was not an invention of the princeton faculty in the 1840s. they they it as such and and you know the phrase new science of politics is in the federalist hamilton does claim that that's what they're doing. and then he lists a series of ideas that are just not new. and i think it's important for us to see that, too. but by all means, we have to think about what we need now, and we have to think realistically about what we need and what we have and what we achieve about where the intersection is, between the things that we could do and the things that we should do. and i think that in a lot of ways that would point us in the direction of improving on the constitution. we have not starting over. i think the example of of the of political action in the 1960s,

in the 2020s is a good example. the on washington that that's created by 18 hours of social media has no effect whatsoever. the women's march came and went and nothing happened. the civil rights movement understood what political action actually was and a march is only the little tip of the surface of what happens in in a real political movement, much of which is organizing over time to allow citizens to act in durable ways, to make change in their society. and we have a lot to learn from them and a lot of what we do now is very ephemeral, very careless. it's very impressed with social media. i tend to be a little less impressed with social media because i think that there is a way that it distracts us from what political action actually advances an idea of justice would look like. that kind of action requires a durable commitment and a sense of how people change their mind and how society moves works. and so i think movement for justice has to take its bearings

from the nature of politics that doesn't mean we do everything james madison did. there are many things james madison did that i would not do and that we should never do. and there are some james madison did that were outright evil. he did own slaves. that's not something we should ignore. but we be able to learn from our tradition by asking ourselves what we need, what it offers us, where there is a gap, where there is alignment? and i do think that lead us to an approach to politics that takes its bearings from the constitution. yes, i agree. because you're building groups are. yes. thank you very much. i was able to glance to first few pages of your book, and i just want to comment the writing was so had such elegant clarity that i look forward to reading it. i really appreciate that. i, i worry that the rest is not like the introduction, but thank you. i'm comforted it is from having

listened to this afternoon i just want to ask quickly interested in why your title says american covenant rather american constitution. thank you. thank you very much. i titles are hard is my first answer. this was not first title. um i. i try to defer on titles to people who are better at this than i am. um, there are a number of people in room who know that i had in mind several much worse titles than this for this book. but ultimately, i think this title does make sense for. the argument i offer, which is the constitution, you know, it's not a covenant in any religious sense. obviously but the distinction between a covenant and a contract is that a covenant is understood as describing a relationship rather than simply as this kind of sets of

countervailing obligations and in terms the violation of which means the thing is broken, i think the american constitution really describes the shape of the american polity by now. um, and it describes a way in which we hang that is more than simply a set of institutions, that is more than law. and that in that sense is a little covenantal. um, but the idea of thinking of constitution as covenant i owe an essay of irving kristol's called the spirit of 87 that he wrote for the 200th anniversary of the constitution a really wonderful essay and i'm grateful to have run across it after going through seven or eight titles that i didn't like. thank you. we've got time for some more questions in the in the very back, i can barely see you because of the lights. it strikes me that.

oh, i know that voice. constitutional it's not jumping over to is that. during major constitutional moments we have these of amendments beginning with bill of rights reconstruct the progressive era kind of stop and i'm wondering in whether it you address the amendment in the book or how you think about the the amendment process today i recall a decade or so ago levin, your namesake, proposed a series of the bad in these a series of liberty amendments. yes. when the rise of the tea party that didn't go anywhere. now we're this moment where instead of thinking about how we might amend the constitution to make it work, thinking about living either post-concert notionally or yeah, some type of living constitution. how do you think about the amendment process and what would the lavinia amendments? yes, well, i think that the

amendment process is appropriately challenging. it should be hard to amend the constitution. that's what makes a constitution. i think you in some of the state constitutions that making it too easy kind of makes a mockery of the constitution, um, you know, the, the maryland constitution runs to, you know, 300 pages. um, it's got all kinds of stuff that has nothing to do. constitutional realism. the american is 7500 words with all the amendments it's readable, it's accessible, it makes sense. it's all about the same subject. it's about the character of our regime and i do think that it should be difficult enough to amend the constitution that we only do. so when there is a kind of regime moment like that and part of what that means is that in a in divided time, in a 5050, america is very hard to amend. the constitution in a way.

you know, the 27th amendment was adopted in the 1990s in 1982, but but not really. it was sort of a it there for the for the 200th anniversary of the constitution. it actually part of the original bill of rights that didn't get ratified. and it just says congress can't raise its own salary if to wait for the next election. it was almost symbolic as a wonderful story that it was the student who came up with this idea in an essay and it caught on and and he got a better grade after it passed. yes he actually that's right he originally got a pretty bad grade. it wasn't realistic. other than that, the less the less sort of surge amendments was in the 1970s. and wasn't much of a surge. i mean, you know the the the post-civil war amendments, the progressive era amendments did come in bunches. and i think they were connect to

to a kind of moment of reform that had gained steam for some time and that had broad public support behind it. um, i guess i would say this to matt. i don't think that there a, there is a problem we confront in this moment with our system. the solution to which would be a constitutional amendment. um, and i'm conservative. i like the constitution. i'm not inclined to think that what we need is to change it, but i think that some of the movements we've seen and some of them have been on the right, a kind of constitutional convention for opening things up, for making it much easier, to amend. i think all of those would very likely in very, very bad ideas being enacted into the constitution. and that the the logic of wearing s of such change that informs the nature of the amendment is right. i can certainly be of the need

for one kind of change or another, can imagine ways in which you could advance all kinds of ideas that i like and just put them in the constitution. but i don't really think that's how our politics work. these should be regime ideas should be about the structure of the system, the infrastructure of the system, not about policy. and so at the moment, i'm not really eager to see a constitutional amendment. other questions? oh, yes. in the in the very back there, because i did pick you in the past. you over there we go. thank you so much. this has been great. dr. levine, one thing you've mentioned, this talk is kind of the inertia that exists in congress specifically. and so i think i'm adjourned. i've not read your book, but i imagine it has package of reforms in it that you would like to see enacted. but what do you think would be the marginal reform, maybe the most doable reform that would have the most purchase in terms

of kind of setting us back at a right course like the most imaginable, but actionable reform? yeah, i talked a little bit about the expansion of the house, which i think in some ways would open the path to other reforms. but i think that if we if we look for the most plausibly doable kind of reform would also have a real effect. i think the key for changing some very bad incentives the house if we put aside electoral changes which you can't really do just in congress is to empower the committees. i think for congress to take its lead from the state legislature that let committees floor time would make a drama and a difference in the operation especially of the house in some respects also the senate about a third of the state legislatures do this the way it's done, for example, in virginia is that a committee that passes a bill of committee with at least one vote from the minority party, gets floor time for that bill.

that is very much not how congress works. and at the moment, most of the work that's done in committees in congress is just a waste of time. because eventually, if there's a move to pass legislation on, the issue, it's just going to get written by a leadership team. it might include the committee chair, it might include some committee staff, but it's not going to be what the members negotiated it. i think if you let members fire with real bullets, if you say this negotiation is actually going to matter, there will be a vote on the floor if we get this done, they would care more about their committee work. i mean, the problem the problem right now is simple. these are ambitious. they want to succeed and working hard in committee contributes nothing to their success. getting on cable news contributes much more to their success. and so that's what they do. they're not crazy that that's what you would do if you were an ambitious trying to succeed so that to change the incentives

need to change and i think the committee system is place to start dead center here. thank you. amazing book in ink. gratz eyeball i question because i think this is you know defending the constitution obviously is not popular as maybe it was ten, 20 years ago. there's been some, i think, real changes on the part of, you know, largely progressive left that we haven't seen, at least in my lifetime, is, i think, a desire to literally, you know, blow up the system and started with, you know, harry reid watering down the filibuster ten years ago. now expanding the court now it's adding more states. obviously some of those things, you know, could backfire here on the left, you know, if there was, you know, donald trump, you know, a new president, donald trump could add more supreme court justices. he could it would happily do so. but this is know this desire to

blow up the system seems very myopic. i'm curious what your thoughts are on that. you know the that there are now people in close to power that are happy to change the system kind of regardless of what the consequences are even if they ultimately backfire on them. yeah. i mean, i think they know what the consequences would be. i just they're probably wrong about that and i wouldn't say it's all that new. i mean, the idea of packing the court is not new. that's that one much further. the last time it was tried in the 1930s and you know, by by a democratic party with very similar views. what was wrong with the constitution? so we've seen these kinds things before. the the impatience with the filibuster is certainly not new. i what it runs into is that the ideologically marginal senators, the majority party, actually always love the filibuster even if they're democrats and it survives the the general

attitude that the constitution doesn't serve us well that we put up with it because we have no choice. but if we had a choice, we would blow it up. is not a new idea it at least as old as woodrow wilson. and of course, in some ways it's older than that. and so i think it's something that that friends of the constitution have had to contend with for a long time. i think it's fortunate that major change requires much broader majorities than we're likely to see now. i mean, in a funny way, you know, both parties now are terrified of each other. they think if the other party wins it's the end of the republic. but in if the other party wins, it's going to barely win. we've had a 5050 politics for 30 years. the stakes are not as high as they say, because if the wrong person gets elected, they're just going to spend their time banging their head against the wall because they only have a three seat majority in the house. and so i think the parties should spend their time thinking about how to broaden their

majorities if they want to change things rather than about how to blow things up, you know, being seen to talk about blowing things up is why you have small majorities or minorities so it's it's politically nutty. i certainl so it's politically natty. i certainly think there are real risks to it. they have to be answered because they see why the restraint on democratic power in the system are important.ef it's true the american left has turned against all of those restraints. the courts, the bill of rights one by one, the freedom of speech and then of religion and then a speech and then the rest are on the way. the senate, the electoral college, that's why the argument for them has to be made. that has to be made in terms thatti are constitutional and nt political, not simply political. but ia don't think it's necessarily a new problem. it's a serious problem but it's one that generations of had to deal with.

>> all right. well, thank you. these of anti excellent questio, but ourur time is come to an en. so please join me in thanking yuval for his book and for his thoughtful comments. [applause] >> if you're enjoying booktv then sign-up for our newsletter using the qr code on the screen to see the schedule of upcoming programs, author discussions, book festivals and more. booktv every sunday on c-span2 or anytime online at booktv.org. television for serious readers. >> saturday's american history tv features historic convention speeches. watch notable remarks by presidential nominees and other political figures from the past several decades. this saturday illinois senate candidate barack obama emerges on the national stage and gives the keynote speech at the 2004 democratic convention.

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