Keeping the Republic: A Defense of American Constitutionalism, by Dennis Hale and Marc Landy (University of Kansas Press, 2023). 

The United States Constitution is under attack—again. The chorus of critics—including prominent law professors, journalists, political scientists, and politicians—seems to grow louder daily. They call it a broken relic, standing in the way of furthering equality and social cohesion.

They say that the Constitution encourages excessive individualism, inequality, racism, isolation, and anomie. Only by jettisoning this eighteenth-century artifact, the argument goes, can America finally embrace the progressive ideals of unfettered majoritarianism, racial harmony, and economic redistribution. Doing so would make the American people freer, happier, better governed, more equal, and more community-oriented. God himself may even look kindly on us.

Such arguments have stirred two distinguished Boston College political scientists, Dennis Hale and Marc Landy, to mount a vigorous and erudite defense of the American constitutional order. In Keeping the Republic, the authors weave together political theory, institutional analysis, and policy history to offer a compelling case for preserving America’s constitutional democracy and republican ethos.

To begin, Hale and Landy articulate and then dismantle the three big assumptions underlying critics’ calls to scrap the constitutional order. First is the notion that human nature is sufficiently plastic that it can be reshaped through transformative political, social, and economic engineering. This premise calls for releasing state power from the constitutional constraints hindering such grand societal refashioning.

Next is the push for majoritarian democracy, with minimal checks on the instantaneous fulfillment of the majority’s will. Advocates of this course posit breaking the constitutional chains binding government power as a means of more rapidly gratifying the popular political impulses of the day—which will always be good, of course.

Paradoxically, this quest for greater democracy exists in tension with the third animating belief—that power should be concentrated in the executive branch, under the guidance of “enlightened” bureaucratic expertise. Channeling Franklin D. Roosevelt’s view, this administrative state approach would wield sweeping control over the economy and hammer out the details of legislation touching all spheres of life.

Hale and Landy underscore how few of today’s criticisms of the Constitution are new; indeed, some are older than the Constitution itself. Take the charge that it is fundamentally undemocratic, enshrining oligarchic rule through the Supreme Court’s counter-majoritarian power and the Senate’s unrepresentative structure. The Anti-Federalists lobbed similar broadsides when they railed against ratification in 1788–89.

Keeping the Republic traces the roots of the claim that the Constitution is a racist document to the abolitionist movement of the 1830s. Figures like William Lloyd Garrison excoriated the founding document as a “covenant with the Devil” for its tacit protection of slavery in the antebellum South. So implacable was Garrison’s opposition that he advocated the North’s secession from the slaveholding states. Faint echoes of this viewpoint reverberate in certain contemporary incarnations of identity politics. Some activists propound a form of self-imposed segregation—minority groups “seceding” from the purported “white supremacist” mainstream.

The critique of American society as excessively individualistic, with scant regard for the broader community, finds its seminal expression in Edward Bellamy’s 1887 novel Looking Backward. This utopian work gave voice to yearnings for more robust national solidarities and collectivist aspirations. In the 1960s, echoes of Bellamy’s jeremiads against rampant selfishness resounded in the New Left’s clamoring for “participatory democracy” as a counterweight to big government and corporations.

Keeping the Republic adroitly connects these philosophical undercurrents to the progressive movement’s rejection of the Constitution in the early twentieth century. Confronted with industrialization’s dislocating impacts, thinkers such as Herbert Croly of the New Republic derided the founding charter’s impediments to decisive national policy action. To combat the resultant ills of urbanization and inequality, President Woodrow Wilson advocated a more centralized parliamentary model—an invigorated presidency as a locus of popular leadership, combined with an expert-guided administrative state unshackled from federalism’s constraints on national power.

Hale and Landy illustrate how contemporary detractors of the Constitution have added only a few new refrains to the long-running canon of constitutional critiques. For instance, beginning in the 1950s, many political scientists took their cue from Wilson in advocating a shift toward a more parliamentary model under the “responsible parties” doctrine. In 2001, Yale University’s Robert Dahl reinforced this view, judging the U.S. system less democratic and egalitarian than 22 parliamentary peers after comparative analysis.

Other political scientists, such as Terry Moe of Stanford and William Howell of the University of Chicago (whom Hale and Landy should have mentioned), pick up another thread from the Progressive Era, offering a restatement of the view that the presidency should be greatly empowered in order to make more rational and efficient policy decisions.

Led by Sanford Levinson of the University of Texas, some law professors today follow the Anti-Federalists, holding that the Constitution is too undemocratic thanks to the structure of the U.S. Senate, the Electoral College, the amendment process, and life tenure for federal judges. Making presidential elections a national popular vote, reconfiguring Senate seats to be based on population, lowering the bar to amend the Constitution, ending life tenure for federal judges, and packing the Supreme Court are just a few of the ideas bandied about.

Other law professors advocate measures to entrench systematically progressive legislative majorities. From public financing of elections to universal voter registration, bolstering organized labor, and antitrust powers, the prescriptions aim to overwhelm the constitutional order’s inbuilt constraints.

Finally, echoing early twentieth-century urgings, still other law professors call for empowering a technocratic “fourth branch” of government, insulating policymaking from democratic pressures under the guise of restoring public trust through expertise. 

In confronting the barrage of anti-constitutional arguments, Hale and Landy make a crucial concession: the founding charter is indeed imperfectly democratic. They contend that this is not an inadvertent flaw, however; it is a conscious design intended to “discipline” majoritarian impulses.

In the U.S., majorities can and do enact their policy agendas—but only those commanding durable, broad-based support can clear the Constitution’s purposeful hurdles. Such friction represents not obstructionism but a check against transient, narrow factions commandeering state power.

The authors argue that the core critique leveled by constitutional detractors, whether tacitly or explicitly, is less a paean to democracy than an ode to freewheeling majoritarianism—where even fleeting coalitions wield untrammeled influence. Today’s constitutional critics fetishize the popular will as inherently virtuous. The voice of the people is the voice of God, they seem to say—or at least the voice of progressive orthodoxies. More “democracy” thus becomes a panacea for all perceived deficiencies.

Hale and Landy astutely counter the fallacy that unrestrained majoritarianism is a recipe for good governance. As the Founders recognized, popular majorities can just as easily enshrine intolerance as enlightenment.

What if the Constitution’s amendment process was radically simplified to become mere national referendums, the authors ask? In the 1920s nadir of American racism, might not a proposal to repeal the Fourteenth Amendment’s equal protection guarantees have prevailed? And in 2004, had gay marriage been put to a plebiscite, surveys suggest that unions may well have been constitutionally proscribed to a man and a woman only. Even today, polling indicates that affirmative action would likely be abolished if it were put to a nationwide popular vote. Depending on the issue, the popular will runs in different directions.

Such counterfactuals signal the perils of raw majoritarianism, whatever one’s politics. The Framers’ elaborate system of checks and protections emerges as a bulwark against not democracy itself but its capricious manifestations.

Furthermore, Hale and Landy suggest that the Constitution’s design represents a good solution to the complexities bedeviling the quintessentially “modern” nation-state that America pioneered. By their definition, modern polities grapple with unprecedented scale, wide-ranging diversity, and the imperative of accumulating and projecting formidable power—challenges that only fully emerged over the past three centuries.

The continental expanse of the fledgling U.S. republic upended ancient presumptions that large territories could be ruled only by centralized monarchical or imperial authority. America’s kaleidoscope of ethnic, religious, and economic cleavages strains cohesion in ways that prior states could scarcely fathom. Moreover, America’s ascent as a global power required accruing military might be sufficient to prevail in two world wars and to contain existential threats like Soviet Communism.

According to Hale and Landy, the Constitution adroitly navigates these pressures. Few other nations face this trilemma of vastness, pluralism, and geopolitical responsibility to the same degree as the United States. America’s very exceptionalism as the pathfinding modern nation-state demands the unique governing framework the Founders bequeathed.

All that said, Hale and Landy are far from thinking that all is well with the current operation of America’s constitutional system. In a tour de force of policy history, they chronicle how successive eras of legislative and executive activism since the New Deal have eroded the republic’s animating spirit of dispersed sovereignty and circumscribed state power.

Hale and Landy further contend that Congress has fallen down on the job. Presidents regularly overreach through unilateral action. The bureaucracy and the federal courts continue to run amok. Civic education is in a woeful state. The public now has little regard for constitutional restraints and often seems to demand what cannot be done, threatening republican government. But working with, rather than against, the constitutional grain is the only way forward.

For all their sober diagnoses of American democracy’s difficulties, the authors demonstrate that revitalizing the Framers’ wisdom remains a restorative exercise. Keeping the Republic serves as a timely reminder that the Framers’ guiding principles of limited government, distributed sovereignty, and fundamental rights persist as invaluable safeguards to liberty—even amid the sound and fury of modernity. Revivifying the first principles of American self-governance in a jaded age can serve as the beginning of a renewed civic education.

Photo by MPI/ Stringer/Getty Images


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