Advisory Opinions - Unity Is Dead, Long Live the Union

Episode Date: August 29, 2024

Sarah and David break down the latest update in Jack Smith’s January 6 case against Donald Trump before speaking with Yuval Levin about his book, American Covenant: How the Constitution Unified Our Nation―and Could Again. The Agenda: —Jack Smith’s superseding indictment —Not thinking alike but acting together —Federalist No. 10 —Underestimating how unified we are —Proceduralism is not amoral —Restringing narrow majorities —Congress, do your job —The federalism solution —Supreme Court reforms —Reforming Article I Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Iskier, that's David French, and our special, special book guest today is Yuval Levin of American Enterprise Institute and his book, American Covenant, How the Constitution Unified Our Nation and Could Again. But before we get to that, David, boy, like a flurry of legal news this week. I mean, for all of the rest of us who are just lazing about reading books, enjoying our summer, Jack Smith appears to have been locked in a closet with only an electrical outlet, some MREs, and a typewriter. So this week, the special counsel's office filed its brief to the 11th Circuit, appealing Judge Eileen Cannon's dismissal of the case,

where she found that the special counsel was not properly appointed because he was not Senate confirmed and or not reporting to a U.S. attorney. And as if that wasn't enough, also a superseding indictment in the January 6th special counsel case in D.C. This is the case that the Supreme Court decided about Trump immunity. So that superseding indictment is an effort to strip out the parts that the Supreme Court said were no-goes and create an indictment that can withstand those John Roberts three buckets, right? Unofficial conduct, go to town. Core constitutional official conduct, no siree. And how about official conduct, not core, balancing tests?

Would it intrude on a future president's ability to do their job, basically? And at the same time, we also had an interview where Justice Contagio Brown Jackson sat down with Nora O'Donnell at CBS Evening News to talk about her feelings on that Trump immunity case. So kind of a big 24-ish hours here, David. I'll read a little bit about what Justice Jackson said. I think you agree with nearly all of it. I was concerned about a system that appeared to provide immunity for one individual under

one set of circumstances when we have a criminal justice system that had ordinarily treated everyone the same. Well, now we see the indictment where Jack Smith at least thinks that while working within that opinion, he can move forward on these same charges. He has stripped out anything about the Department of Justice and Trump's interest in pressuring the department to open investigations, bring cases, et cetera. And instead, they focused on the other stuff that they had, fake slate of electors, pressuring Vice President Pence, and the certification after his comments on January 6th. I found some of the just purely rhetorical changes actually pretty funny.

Literally the third paragraph initially said, the defendant had a right like every American to speak publicly about the election. Now it says, as a candidate and a citizen, the defendant had a right like every American to speak publicly about the election. Dear special counsel team, do you think that now you're going to get a conviction with those additional words in the indictment that you weren't gonna get before? Like that's what's gonna seal it. So there are rhetorical changes like that.

But for the most part, I think this indictment is a lot narrower, a lot more focused and frankly, a lot better for not having a bunch of the like flim-flamming around. When they talk about his speech on January 6th, they now have added the fact that it was privately funded, a non-government event that he was speaking at. It doesn't include a whole bunch of atmospherics that really confused me as to what exactly the charges were because the initial indictment looked like a little bit orange man bad, here's all these

atmospheric political things that we don't like. This indictment, 36 pages versus 45 before, this indictment actually seems to be about crimes. Yeah. Well, the thing that was really good, I thought, about this indictment, it's not just that it's narrowed and also narrowed in a way that really goes along with kind of the way the oral argument went in the immunity case. Because if you remember, Justice Barrett questioned Trump's attorneys about private or no, and they really seemed to agree that many elements of Trump's conduct had been private as candidate Trump and not as president Trump.

And they also did something that was, they really stripped out not just the claims that were related to his actions and talking to the people who worked for him, federal officials who worked for him, but they also stripped out the elements of the indictment that relied on evidence gained by conversations, say, internally within the White House.

So they were dealing with both the substantive element of the immunity ruling, which says, of course, you know, if it's core function, it's your immune periphery, you might be immune. They're dealing with that. But they also were dealing with the evidentiary elements of the ruling, because if you remember, the ruling was talking about, hey, be careful about introducing evidence of your conversations and within those core official functions. So they really tried to pull this completely out of his presidency and put it into his candidacy. And that, I think, you know, is going to make it, quite frankly, an easier case overall. I just, it's simpler, it's cleaner.

I think it's going to be easier. And it reminds us by the way, Sarah, why this election matters so much for Donald Trump. This is something that had been on the back burner and guaranteed it's not back burner for him. And this could be one of the reasons why we have seen sort of maybe a more deflated Trump in the last several days because there's more at stake for him in this election than there is any normal presidential candidate. I feel frustrated reading the superseding indictment. They were fully capable of having this as the initial indictment.

Right. And it would have saved a lot of time. I mean, for those who are frustrated that Donald Trump didn't go to trial before the election, I've pointed out, of course, January 6th happened in 2021. The indictment was brought in August of 2023. That, I think, is the biggest part of the delay here. That's two and a half years to bring the indictment within the Department of Justice. Then you had, I think, very normal amounts of time spent by the trial judge and the D.C. Circuit, where I think that they made mistakes,

was in not demanding that this indictment be narrowed at their level. Instead, the D.C. Circuit's immunity decision, as I said, David, and I got a lot of grief for this, but it was bonkers. This idea that no president was ever gonna have any immunity for anything they did. Congress could pass a law saying that it's illegal to pardon someone and that somehow that would just be okay and we'd go ahead and indict the person. Like that wasn't going to work. And so as much as Justice Jackson,

for instance, bemoans that the Supreme Court created an immunity decision, you know, for one individual under one set of circumstances, that's what the DC Circuit had done as well, just on the other side. And so if there had been a narrower indictment, this indictment, I really wonder whether we'd be where we are, because I think it would be, it is much harder to argue an immunity argument here where they're making it about unofficial conduct. Nobody has argued that you can't be indicted for unofficial conduct because that's the same as everyone else. This is the other frustration when people talk about a two-tiered system of justice like, oh, you can get indicted for something but not Donald Trump. No, no,

Donald Trump can get indicted for all the same things you can get indicted for. You can't get indicted for the things that Donald Trump was, you know, in the initial indictment accused of because you weren't president. That's the difference. The question is the things you do as president. And I get that that's, you know, when you're explaining you're losing that argument. But I think I'm pretty frustrated because this is a much better, much narrower, much cleaner argument

that they're making in this indictment. And it makes more sense to me. I mean, part of my complaint was that I didn't really understand the first indictment. I didn't understand which facts went with which charges. I said initially the DOJ thing seemed crazy to me that you would indict a president for considering replacing his attorney general for the motives that he was going to do that for, because now we're just gonna look into the motives of every president who's replacing cabinet members.

There's a ton of motives for why people replace cabinet members, some of them are good, some of them are gross, some of them are political. So if one of those motives is, that was always a weird, unnecessary thing to include, and we know it's unnecessary because it's the exact same charges in this indictment, David, they didn't even have to change the number of charges

or what the charges are to strip out all of that official conduct. Well, the weird part to me of the charges around Geoffrey Clark was that he didn't actually change the AG. So that was the weird part to me, because I could imagine inquiring into motives if someone was, say, bribed to name an AG,

but there was no change. So to me, that was more, it was almost thrown in there like, atmospherics, because it wasn't, I'm trying to figure out the crime that is, well, you thought hard about replacing the AG for corrupt reasons, but you didn't replace the AG for corrupt reasons. So it was hard for me to sort of see the criminality of not replacing

the AG because there was no criminal act in connection with that element of the charge. And I do also wonder this, Sarah, because we've talked on both the Florida case and the Washington Jack Smith case. Both of them have elements that were extra, that they could have prosecuted the case. Both of them, say for example, if they just went with the obstruction in Florida that would make that case cleaner, or if they cleaned up the case in Washington like they already did or just did, that it would make it cleaner. And we talked about that in both of these cases. And I actually wonder, here's a counterfactual, Sarah.

Jack Smith files this indictment as the original indictment. There's of course going to be a presidential immunity argument. You do not escape the presidential immunity argument with a better indictment. But if you have an indictment that is exclusively focused on private acts, does the Supreme Court even get to the rest of it?

In other words, does the Supreme Court even decide this sort of official immunity, you know, peripheral stuff against the backdrop of the Trump threats to prosecute Biden if he wins and all of this sort of extra stuff. I really wonder if the court just says, well, there will come a time in which we have to decide presidential immunity, but it is not this day because none of this case involves his actions as president. It all involves his actions as a candidate. And for that, we give no immunity. I just wonder if we would be in a very different

place with the immunity argument overall, if this had been the original indictment. Pretty frustrating. Now we're going to await oral argument decision from the 11th Circuit on whether the special counsel is constitutionally appointed in the first place, that could affect the January 6th case in the sense that, you know, if the 11th Circuit were to hold that Jack Smith isn't properly appointed and the DC Circuit were to hold that he is properly appointed, which they already have, the Supreme Court would need to resolve that as well. And so once again, the Supreme Court gets dragged into these fights, which does not help the Supreme Court. I'll just say that.

No, no, no, it does not help the Supreme Court at all. But again, we're all we're talking about an indictment in this really weird situation where the case could just go away in the 11th Circuit case, could just go away shortly after November, depending on how things go. So what a strange case to analyze when you don't even know if it's going to be a case. And of course, yes, it could go away. But even if they were to find the special counsel is not properly appointed, this is also a really easy thing to fix. If Jack Smith reports to a US attorney, you're fine.

This is an org chart problem right now. I understand why DOJ doesn't want to do that because at this point, it's not going to trial before the election anyway. You might as well work out the legality of special counsel's appointments since we keep having so many of them. But again, if DOJ were as concerned about the timing as sort of all of these outside commentators are and were, there's easy, quick fixes to this. But people want to know the parameters of the law. And so, yeah, you want to test it, you want to get a real answer, you want to have real arguments on it. I'm

all for that, but don't blame the system for the delay then. DOJ is the one who's choosing to appeal it rather than just have him report to the U.S. attorney in Miami, for instance. Justice Jackson in her interview, by the way, David, said one other interesting thing. Asked whether she was prepared for cases related to the upcoming election, Jackson replied she is, quote, as prepared as anyone can be. I think there are legal issues that arise out of the political process. And so the Supreme Court has to be prepared to respond if that should be necessary. I love it, Justice Jackson. I mean, it reminds me of my favorite quote. Other cases presenting different allegations and different records may lead to different conclusions. Sometimes cases and questions of law end up at the Supreme Court and the Supreme Court must be prepared to answer those questions of cases and laws. You know, it's so funny because when you, the Supreme Court justices really don't talk to the media that much at all.

No. And so the most banal stuff becomes news. That was like saying, that was the equivalent of saying, I will be a justice on the court and evaluate the cases that come before me. That was like, I'll just do my job, guys. It's so funny. And it's a headline, Supreme Court is prepared. It's wow. Yeah. It's perfect. All right. Let's talk about the American Constitution and whether it is a thing of unity with Yuval Levin.

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For a limited time only, you can get $35 off their best selling frame by visiting auraframes.com and using the promo code advisory at checkout. That's A-U-R-A frames.com promo code advisory. This is the best offer of the season. So don't miss out terms and conditions apply. Welcome Yuval Levin, director of social, cultural and constitutional studies at the American Enterprise Institute, editor of national affairs and author of American covenant, how the the Constitution Unified Our Nation and Could Again.

And Yuval, this is a sort of history of the constitutional fights that we've had in this country. And your argument is that the Constitution as originally conceived is actually a unifying document because it is supposed to be encouraging compromise and majoritarianism, except in the very few areas that it is supposed to be encouraging compromise and majoritarianism, except in the very few areas that are, it is counter majoritarian and it's supposed to remove things from sort of the heat of culture wars whenever possible by having multiple

layers of representation and republicanism and I mean small R republicanism here. And that if we return to that concept of the Constitution, it would be unifying because we wouldn't, everything wouldn't be existential, catastrophic consequences for every election. It's both an old and a new argument for originalism, I think. Who is your audience, your ideal person reading this book?

Well, thank you, Sarah. I think that's exactly right. That's the aim of the book. And the audience for that kind of argument are really Americans who know the Constitution, but need to be reacquainted with it from the point of view of its capacity to unify us, to hold us together. The Constitution begins from the premise that we are always going to be divided, that in a society like ours, agreement is not really an option, and that instead what we can hope for is not so much thinking alike but acting together in our politics, finding paths to common action made possible by ways of forcing competing factions in American life to deal

with each other, to negotiate, to compete, to bargain. That's what the Constitution wants to drive us to do. And it ultimately can help us see a definition of unity that's realistic in 21st century America that we can actually achieve even in a divided time like this. The Constitution is built for this kind of time. And that's the message I want to convey to readers here. You know, it struck me. And first, you have me at hello when you quote Federalist 10,

which is, as everyone knows, the best Federalist paper. But the interesting thing about the formulation of the book and your argument, it really reminds me of a Madisonian vision seems to be of a constitution, not just as a substantive document that's going to mark out in many ways what the government will do, but much more a document that outlines how it will do it. And a part of it is it's throughout embedded within it is in essence a conflict management system.

That constitution is conflict management system I think helps us place it in its proper space in many ways. And I feel like people don't, they consistently, because America's much more diverse now, we underestimate the diversity of the founding. In other words, we underestimate how big these divisions were at the founding because we look at, say, the difference between Puritans and Quakers and Baptists and Anglicans and Catholics through a modern lens, which is, well, of course they're all hanging out together. I can drive down

any street in America and I can have 19 different denominations, especially in the South, represented. This wasn't diversity. This wasn't real difference. But in that prism, you list those religious different religions. That's real. Like, how do people live together across that kind of difference? And I think recapturing some of the ways in which, say, a Madison saw us as inescapably divided in a sense, can help us navigate the current moment. Because I feel like we look backwards

and think of there as greater unity than there actually was. Absolutely. I look at 18th century America as a Jewish American in the 21st century, and I think, well, they're all Protestants. What's the problem? Right.

And that is not how they understood their situation. The striking thing about the debates of the founding era is that Americans in that time took themselves to be very, very divided. They also understood themselves to be a vast society. We think of those 13 original states as a very small version of the United States. They were already at that point point larger than any European nation. And their sense of their vastness and their

diversity is a very powerful thing in the debates around the Constitution. And especially, as you suggest, David, in the thinking of James Madison, Madison really stands out for worrying about faction. There are other more familiar kinds of worries in the debates about the Constitution. Hamilton is concerned that the government be energetic and capable. There are people who would become anti-federalists like George Mason at the convention who are worried that the government has to protect people's freedom. These worries are still with us. They're very important. Madison really stands out for worrying that the society might

not hold together at all. And that worry is very powerfully embedded in the Constitution. In the preamble, the very first goal that's given in the listing of the purposes of the Constitution is to form a more perfect union. And we kind of read right over that. And we're inclined to think that it's about holding the states together and of course it is that in part. But it also reflects a concern that the alternative to the Constitution was the breakdown of that society, the falling apart into civil war that they believed was very, very possible in their moment. And a lot of what the Constitution tries to do is resolve the basic challenge of how do we hold together given that we disagree about very important things.

And I think there is, as I suggest, a kind of an idea of unity embedded in the Constitution that understands unity not as thinking alike, but as acting together, and that answers the question, how is it possible to act together when we don't think alike? The Constitution is a series of answers to that kind of question, and its various institutions are different ways to do that. I love this Harry Jaffa quote that you included. We must recognize the necessity of preventing the enemies of liberty from gaining power in the regime of liberty. But we must also recognize the extreme difficulty and the danger in the possible confusion of those whose interests differ from ours within that regime and those who in truth stand outside of it. That is the perfect summary of the

moment we are in is a disagreement over whether we simply disagree or whether you are a threat to the American way of life. Is this a political disagreement that we should negotiate over, or must we burn you because you are anathema to everything we're trying to do? That is the debate that I don't think people are willing to see a lot of reason on. Because if you believe that Trump is a threat to the American system of government, therefore the people who vote for Trump are threatening the American system of government, you don't want to negotiate with them.

And so it's one thing to sort of make this claim about how the Constitution could work, but it's that recognizing the difference between the true, you know, threats, enemies of liberty, gaining power in the regime of liberty. How are we supposed to know which is which, Yuval? I agree with you. I think it's a very, very important point that Jaffa makes there. And in a way, it's especially important

to see him making it because some of his students and followers on the right are, I think, the ones now inclined to look at the left and say they're outside the regime. They're the enemies of the regime. And there are certainly moments when we can think that way. There are also moments when people on the left look at people on the right and say they're talking from outside democracy.

This is not an argument within democracy. It is an argument about democracy. I think we should always want to avoid seeing fellow citizens that way if we can. Now sometimes this does happen. There are real divisions. There was a real civil war in American life, but we incline to overstate the depth of disagreements in American society. I think this is really one of the characteristic things about America is that we tend to think we're always on the verge of total collapse. It's a really striking thing when you look at American history. At every moment in the 19th century, Americans thought this is it. This is the

last generation. This is the last moment of the American Republic. Our national anthem is a song about barely surviving the night. It's a very, very odd way for a society to think about itself. But Americans have always had this sense that we're kind of on the verge here. I would argue that we tend to understate and underestimate how alike we are as Americans, how unified we are.

If you spend a little time abroad and then run into an American somewhere, it takes you five seconds to know that person's an American. And maybe there are some lefty from California and you're not, but it doesn't matter. Here at home, we just underestimate how very much holds us together. And we overestimate how much separates us

so that small differences in a time of what I would argue is actually a relatively low stakes political moment. And I know that sounds strange because we all think every election is the most important of our lifetime. But we're living in a time of very close elections, when whoever wins next time is going to have a little tiny majority in Congress and is not going to be able to get anything done. That's what's happened now for 30 years. So the notion that this is the moment when everything's on the line

and when we're really confronting the enemies of of american life I don't think that's quite right. It's worth taking real problems seriously I do worry about donald trump as a threat to the constitution. I worry about joe biden attacking the legitimacy of the courts These are real problems But we have to see them in the context of an American history that has seen much, much greater times of trouble and recognize that we're all citizens of one country and we have to find a way to work together within the system we have to solve problems we have in common. You know, one thing that has struck me about our arguments about the Constitution, because

there's a lot of things I did not have on my bingo card when I joined National Review in April of 2015. Think about that. I leave my bingo card when I joined National Review in April of 2015. Think about that. I leave the practice of law. I joined National. No, it was May of 2015. It was June that Trump comes down the escalator and lots of things start to change. But one of the things I did not have on my bingo card was the strong attack on the Constitution

and on liberalism itself from the right. And the interesting thing about that attack is it sort of seems to see American constitutionalism almost as entirely procedural and amoral. And what they want to do is sort of common good constitutionalism or Catholic post-liberalism or Protestant, you know, dominionism, whatever you want want to, whichever formulation against liberalism you want to adopt, they seem to say, well, this is how you achieve substantive results. All you constitutionalists are just proceduralists.

And that's been a lot the terms of the argument, but it's wrong. The constitution doesn't bar substantive outcomes. It channels them through guardrails. It's sort of common good with guardrails because obviously liberal democracies all over the world have, and the American democracy has put forward substantive policies. But it's interesting in reading your book, it seems like maybe one of your arguments is maybe even within the constitutional constraints that we have now and have understood them,

we've still maybe channeled too much power through even the somewhat constrained government that we have now and that what we actually need to do is back off the accelerator a little bit more on that sort of top-down, common-good oriented substantive approach to politics in favor of that more Madisonian incremental localized. It seems like you're zigging big time, but a lot of the right is zagging, Yuval. Absolutely. A lot of this book is in conversation with those arguments on the right about the Constitution. And I think those arguments are profoundly wrong.

They're wrong in a number of ways. First of all, I think it's actually a mistake to suggest that even proceduralism is amoral. That's actually a very bizarre argument. If you think about the nature of moral formation, exactly in the moral tradition that our friends would like to speak out of, the classical tradition channeled through the Thomistic Christian tradition. In that tradition, the way in which you form someone's moral character is through habituation and virtue. And how do you do that? You do that through procedure, by setting the rules that govern the work of the regime. Procedures that require us to respect somebody else's rights are not morally

neutral. That's nuts. They form us to take other people seriously. They form us to treat other people equally. And so procedure itself is actually profoundly morally formative. It's almost the most morally formative thing there is. But even more than that, I think the notion that there's not a substantive moral vision underlying the constitutional system is profoundly wrong. The Constitution describes a republic, and a republican regime takes for granted and assumes and advances a particular moral vision, a vision that takes seriously the responsibility of the individual citizen, that requires each of us to take ownership of the common fate

of our society. Now, it may be that we disagree about whether that moral vision is attractive. I think it is, and I think it should be especially attractive to moral minorities in our society, like say, traditionalist Catholics, who if we were going to empower a Caesar, that Caesar is just not likely to be one of them. And- What?

You know, I think maybe it's coming from a little tiny moral minority in American life that leads me to think this way, but what are we talking about? How can it be that eliminating the protections we have for minority rights would somehow lead us to the kind of life that our friends would like to pursue.

I think they're protected by exactly the kinds of constraints on government power, including crucial procedural constraints that they're complaining about. And ultimately, I do think that unleashing the kind of power that they talk about is, as you suggest, David, something they would regret. Our system protects us from that kind of power and protects us from democracy itself in ways

that are very important to exactly the kind of priorities they have. The irony here is, of course, that the best place to be a post-liberal is in a liberal society because you're going to be allowed to be as post-liberal as you want to be a post-liberal is in a liberal society. Because you're going to be allowed to be as post-liberal as you want to be. But if you're in a post-liberal society, you better be on the winning faction. It better be your team. Or you're in a world of hurt. It's funny because we talked in our last episode to Matt Martens, who wrote a book on the Christian case for criminal justice reform. And in fact, he dedicates large portions of the first half of that book and then a section for each chapter in the second half to the Christian requirement for due process, not just allowance for, but in fact, it is the heart of Christian morality to have due

process in our criminal justice system. I want to talk about a little bit on how we got to this place where the Constitution is no longer being used to encourage, facilitate that negotiated process. Your march through the progressive movement, and again, I'm referring to the turn of the 20th century progressive movement, not today's squad, et cetera. You make an argument that, in fact, that is where this sort of came from. And I'll read from a section of the book.

Our politics has grown more bitterly divided in recent decades, less because these two competing visions of constitutionalism have faced off against each other than because the more progressive vision has been adopted in many arenas of our public life and has pulled our system in its desired direction. We have not been fighting about how to understand the Constitution for the most part. We've been fighting because our understanding of the Constitution has left the Madisonian prescription for unity behind. We have grown less capable of dealing with one another because we have embraced

an approach to American government that de-emphasizes dealing with one another. In some ways, Adam White will appreciate this. Everything is ad law. This is the administrative state. It was meant to deal with what was seen as a sclerotic Congress then. The Congress wasn't expert enough. They weren't fast enough to deal with the increasingly complex world that was developing and that you needed experts. They should be housed in the executive branch so they can move quickly.

But that came at the cost, of course, of the actual compromise and log rolling that only Congress can do. And fast forward 100 years, you get these pendulum swings that I've talked about. I've often used the Clean Power Plan as an example. Obama has a Clean Power Plan. an example. Obama has a Clean Power Plan. Trump changes it to his own thing. Biden then rescinds that, but doesn't just go back to Obama's. He has his own Clean Power Plan. Every single one of those end up, by the way, in litigation. And if you have the de Tocqueville quote that is my favorite, there is almost no

political question in the United States that is not resolved sooner or later into the judicial question. But your argument here is that, in fact, it's progressivism, progressive's view of the structures of government that have led to the atrophy of our compromising muscles. Exactly. That's really well said. I think that the concerns the progressives raised are understandable. The problems they point to are real, but they underestimate the degree and the scope of the problem that the Constitution aims to solve. Progressives have always said the Constitution is a relic. It's not sophisticated enough, it's an 18th century solution to a 20th century

set of problems. I think they're exactly wrong about that. The Constitution is more sophisticated than they are about the biggest problem that a modern diverse democracy faces, which is the problem of sustaining cohesion amid diversity. That is the modern democratic problem and the American Constitution is better at that than other forms of democracy, not worse. But it solves that problem by restraining narrow majorities and so forcing majorities to broaden themselves and therefore expand and broaden their appeal and their legitimacy before they're empowered to act.

And that requirement to restrain narrow majorities is very frustrating to narrow majorities. It's frustrating to narrow majorities and those are all we have in the 21st century. They're also all we had at the end of the 19th century when the progressives were making their case. And so they were not wrong to say that it's really hard to get anything done in American government. But the reason it's so hard is that the Constitution wants to build some consensus behind major policy actions. The progressives, I think, have always underestimated the importance of that and therefore the danger of division.

There's been an assumption underlying progressivism for 150 years now that the public is with us. The public is actually united. Big majorities want to do what we want to do, but we can't do it because of the courts, we can't do it because of the Senate, we can't do it because of the electoral college. The problem is actually more complicated than that. The problem in 21st century America is that we don't have majorities. We don't have majorities for anything. And what we require help with from our system of government is informing durable majorities. And our system isn't doing that because we are not letting it work. We're not allowing the frustration of narrow majorities to be channeled into the formation

of broader majorities. Instead, we go around the system that frustrates narrow majorities. We do it by going to court where you can win everything all at once, and we do it through the administrative state where you just don't have to engage in that kind of bargaining and negotiation. And the result of that is government that is unstable, that swings back and forth. The result of it are elections where the stakes

are much higher than they're supposed to be in the American system. And therefore, the result of it is a lot of division, a lot more division than our system should be allowing and then we should want. And so I think the kinds of reforms that progressives have advanced, from the advancement of presidential power to the centralization of power in Congress to primaries in candidate selection within

the parties, all of these reforms are intended to, in a sense, democratize and make our system more efficient. And all of them have exacerbated the problem of division and polarization in America. You know, one thing that really strikes me as we hash through these things is Americans love the Constitution. Americans, to some extent,

especially well-informed Americans, know a little bit about the Constitution. However, Americans really don't understand in many ways the political realities and how they're limited by and how the Constitution limits and shapes our political realities. So for example, let's just suppose you have a hypothetical situation in which a conservative says they're going to vote for a Democrat. And you say, well, one of the reasons why I want to vote for the Democrat in this circumstance is in the area where the Democrat has maximum power, foreign policy, they largely agree

with my policy ideas. In an area where they have the minimal power and can be checked to the most, that's where we have our disagreements. And I think you can check them where we have those disagreements. And then the answer comes immediately, well, but they're going to pass single payer health care. And you're like, wait a minute, hold on. Did we just not say that there are an enormous number of checks here domestically?

And there are many fewer checks in foreign policy. And so domestic policy, as much as you might read a platform, isn't going to provide you with a guide for actually what is going to happen. And so we're in this moment, it feels like you've all, where every election you have like maximal expectations, both as to what our person can do, and also what I'm afraid the other person will do. So you've got maximum expectations and then immediately rolls into minimal delivery

every four years. Maximal expectations, minimal delivery. And then what does that, what then happens? Maximal frustration. So maximal expectations, minimal delivery, maximal frustration, and it maximal expectations, minimal delivery, maximal frustration, and it just keeps getting worse. Is part of our problem here that Americans just flat out are not understanding how, they're flat out not understanding that small majorities

can't make big changes in this system? I think that's right. I would say though that an additional part of our problem that's distinct to 21st century America is that we only have narrow majorities. We've gotten used to it. So we don't treat it as unusual anymore, but it is actually very unusual. If you look at American political life

at most points in our history, you would find a majority party holding together a very complicated, messy coalition and a minority party trying to broaden its own coalition and become the majority. Those parties are both engaged in coalition building, which is what the Constitution wants us to be doing all the time. Since about the end of the 1990s, we've had in America two minority parties, and neither of them is really exactly engaged in coalition building. They're both engaged in fan service.

They're both trying to get their most devoted voters out next time so that they can drag out a 50% plus one voter kind of victory. And they've done it for so long now that neither of them quite imagines that you could really build a broad majority. And a lot of the reasons why it works that way have to do, I think, with failures of our constitutional practice. We've lost sight of the institution where coalition building is especially crucial and where it mostly happens, which is Congress. Congress has willfully and willingly given up a lot of its own authority and power, turned it over to the president and in some respects to the courts,

so that we don't really look to Congress as the place where our politics works itself out. And we've also had our two parties give up their role in candidate selection and turn it over to a primary electorate that doesn't actually want to build a broad coalition and that doesn't want to see a lot of negotiating happen and a lot of bargaining and compromise, but instead wants to see its own most intense views expressed most forcefully in our system. I think of all of those things as failures of constitutional practice, as a sort of loss of the sense of what it is that we're supposed to be doing here. You look at the American system, and I think the courts are one exception to this. Judges now seem to know what their job is better than they did, say, 50 years ago.

Members of Congress and presidents now have very little idea of exactly what their job is supposed to be. What they're doing is not what is outlined for the institutions that they're part of to do in our system. And I think a recovery of some constitutional balance would have to involve a recovery of the sense of what the limits are on their power, yes, but also on what their role is and how they're supposed to use their power. And especially in Congress, we have a very peculiar problem where members don't want

to use the power they have. I think that's a problem that Madison and the framers did not foresee. They assumed that everybody would always be maximally ambitious and eager to use the power they have. I think our politicians are still very ambitious, but their ambition now is channeled into a kind of performative political practice that's not about legislating. And a lot of the problems in our system emanate from this intentional dereliction by Congress. I think that's the big problem to solve and it's a hard problem to solve. Hi, this is Kevin Williamson.

I'm the national correspondent for the Dispatch and author of the Wanderland newsletter. We cover a little bit of politics in Wanderland, but mainly we try to get beyond the candidate and horse race stuff into the issues that we think we'll still be talking about after this election and after the next one. I believe that politics is supposed to serve the well-lived life, not the other way around. We do a little bit of language, a little bit of current affairs, a little bit of culture. It's a chance also for me to interact with readers whose questions, suggestions, and shared insights make up a big part of our package every week.

So check it out, I think you'll enjoy it. For a limited time, you can get an extra 10% off if you use the promo code FURTHERMORE10. That is FURTHERMORE10 for an extra 10% off. And if you're already a Dispatch member, make sure you go to thedispatch.com, click on newsletters, and see to it that you're signed up for Wanderland so you get it in your email box every week. Okay. Yeah. So how do we solve it?

Like you, you lay out a good argument here. And I think what I love most about the argument is not only that I think you've presented this recurring fight in an original way that I appreciated, and it was a new way for me to think about it. But that you did it without doing the very thing you're fighting against, right? They're not the bad guys, we're not the good guys, everyone was trying to get to a good end. But the way that we did it during the progressive era, and by the way, like I say we, because that wasn't liberals versus, it wasn't Republicans versus Democrats, at least, and here we are, and this isn't a good place and like, oh, our bad. Let's go

back to that Madisonian version. But how do we do that? So I think we have to start by with a clear understanding of what it is that's wrong. And I think we actually don't really have that understanding. You're absolutely right to say this was not exactly a Democrat versus Republican challenge. Progressivism is very powerful in both parties, but also even in modern times. I think the most Wilsonian progressive reformer of Congress in my lifetime has actually been Newt Gingrich, a Republican speaker who and I worked for him, by the way, who centralized power in the hands of the

speaker exactly in an effort to facilitate a kind of prime minister's role for the speaker of the house that might make Congress more efficient and more accountable. I think that- And the result of that, by the way, is that you have 434 members of the house who have nothing to do and like puppies without any enrichment, they chew the furniture. And by chew the furniture, I mean sit on social media, go on cable news, do, you know, say crazy things to raise money because that's the only way they'll have power because they're not gonna have power

by getting legislation passed because that power has been taken away through the new Gingrich changes that then were magnified even more during Nancy Pelosi's time to ensure that power basically resided with, I mean, generously about five members of the House, and everyone else was never going to get legislation to the floor. Exactly right. They're not wrong to think that going to that committee hearing is a waste of time. It is a waste of time. They're not doing anything there that is going to result in legislation. It's a long running process. I think it began in the 1970s with young progressive Democrats who were tired

of their own party's committee chairman and decided to start to weaken the committees and centralize leaders instead. Gingrich accelerated that by a huge factor. And then as you say, it continued to accelerate in the 21st century. It's crucial to recognize what it is that's wrong there. I think anybody that looks at Congress now would say Congress is dysfunctional. But what function is it not performing is actually a controversial question. And even within the little world of congressional reformers, where I get to be a token conservative, there's a lot of disagreement about that. Most of the people,

and especially those on the left in that world, would say what Congress is failing to do is it's failing to pass major legislation. We're just not addressing the big problems. I think that's a secondary symptom of what Congress is failing to do. What it's failing to do is facilitate cross-partisan bargaining and accommodation. That's the purpose of the institution. That's what it's for in our system. Because it's not facilitating bargaining, it's also not passing major legislation. But it matters which you think is the underlying problem. Because if you think not passing big bills is the problem, then you're with Newt Gingrich. You want to centralize power. You want to get rid of the filibuster, you want to make Congress more efficient. So it's easier to move things through. But if you think the

problem is that we're not facilitating bargaining and accommodation, especially across party lines, then in some ways you want Congress to be less efficient. You want power to be less centralized so that more work is done in the committees where strange kinds of coalitions can form. You want power to be less centralized so that more work is done in the committees where strange kinds of coalitions can form You want to defend the filibuster as I certainly do I think the filibuster is the only reason we've had any bipartisan legislation in the 21st century And you want to see congress operate in a way that is less controlled from the center That is on the surface more chaotic

that is on the surface more chaotic, but ultimately makes for a greater chance for strange bedfellow kind of coalitions and cross-partisan bargaining. What that kind of bargaining allows for is durable legislation, legislation that lasts. And I think we've lost sight of the fact that that's how change really happens. We think about modern American history and we tend to think about the presidents who were in charge when big things happened. So, Lyndon Johnson pushed through the Great Society and the Civil Rights bills. Well, those were all pieces of legislation. Those were all things Congress did. A lot of what made possible the Civil Rights Revolution was the fact that Congress negotiated for two decades about how to do this in a way that

would be broadly acceptable, and it lasted. And it's ultimately, we remember presidents not for executive actions, but for the kind of legislative action that happened while they were in power. And I think we have to recover the sense that what Congress is for is that kind of bargaining toward major legislation. That would require decentralizing power and empowering the committees again. A lot of the reforms that are argued for in this book when it comes to Congress are about channeling power through the committees. So for example, letting committees control floor time, which

is just a terrifying prospects to leaders in both houses. It's actually how most of the state legislatures work. And we're in a strange moment in America now when the state legislatures work better than Congress. That's very unusual, but it absolutely is happening now. Allowing them to control floor time, rethinking the budget process that was created 20 years into a 40 year period

of democratic dominance of Congress and doesn't make sense right now as a way to facilitate appropriations. I also argue for eliminating the distinction between appropriation and authorization, which again sort of blows the minds of the appropriators, but I think is a very straightforward way to allow members to fire with real bullets when they're doing their legislative work. Because right now it's all for show. What happens in committees is just an act. They are producing YouTube clips.

And if you actually let them legislate, then they will be more invested in legislation and more likely to play the part that's assigned to them in the system. You know, when I think of Congress being broken, one of the paradigmatic examples is how we're talking about Texas versus Biden, Sarah. Remember that case where the issue was that Congress had mandated detention for immigrants while their deportation proceedings are pending or their asylum, while an asylum process is underway. But then Congress did not appropriate funds for the detention facility. So it became literally impossible to comply with the mandate that Congress created, which

is it's hard to think of a better example of dysfunction than that. So it's not just that Congress isn't doing what we want. It's that Congress is literally making it impossible to comply with its own dictates because it's so so unable to move the ball down the field. And that leads me to another element. And unincentivized to move the ball down the field. Right. Unincentivized, yes. So you talked about state legislatures. So when I was writing about American division, I was high on federalism because while we're

very, very closely divided as a nation, we're not super closely divided in most American states. If you have an economic plan, if you have a welfare reform idea, if you have an environmental policy idea, you can get it done if you're in one of these states. You can do it. But it seems to me fascinating that there's, A, much less interest in that, and, B, often when federalism arises, it is not federalism in the sense that I've traditionally thought about it, local people getting together to solve local problems, but it's become local

people getting together to fight national culture wars. So like our local school board got overtaken by arguments about CRT because of something, something San Francisco, but we're in Tennessee, right? And so it feels to me like the combination of the demise of local media so that everything becomes nationalized. And then the perversion of federalism so that many times federalism itself becomes just part of the national culture war. I don't know that I'd write my book in the same way anymore, saying, hey, federalism

is our answer here. Where are you on federalism as the answer? Yeah, I agree with you. I think that the nationalization of our sense of what politics is has done a lot of damage to our capacity to use federalism. So I live in Maryland in a county where the race for county commission last time was all about immigration. And the county commission just can't do anything about immigration. It doesn't matter what you think about it. But of course, in a way it does, right? They're sending a signal about who they are and kind of what team they're

on. I think that kind of thinking has done tremendous damage, not only to the practice of federalism, but to our capacity to turn to federalism when we need it. I also think that we've lost sight some of what exactly the federalist compromise is in our system. We have a tendency to think of federalism as layered, as layers of government, one over the other that sort of support each other, something like subsidiarity in Catholic social teaching. Federalism actually isn't like that. Federalism describes parallel tracks of political power so that both the national government

and the state governments govern the people directly, not through one another, but they do it in different arenas. There are subjects that are set aside for the national government. Everything else is left to the states. And in their proper domain, they both govern. A lot of the problem we have with federalism now is that we've combined and intertwined state and federal power in some areas where they were meant to be kept separate, especially in education, in welfare, and in healthcare. They're so connected now that the federal and state governments spend each other's money, they enforce each other's rules, they kind of informally work

for each other, and it's not possible for federalism to act as a solution in that situation. Federalism becomes part of the problem and the national government comes to use the states in ways that, or even just to create what we think of as these competing laboratories, like all state policy is just pilot projects to see what should be made into national policy. Well, that's just not the way in which federalism is supposed to help us stay unified. It's supposed to do that by letting us do different things at the same time in different parts of the country, actually answer the same question in different ways simultaneously and say, well, it's okay if in California they

want to do it that way, here we want to do it this way. And we're just going to do that at the same time. That's become increasingly difficult in American public life. I think that there is still a lot of promise in federalism in the sense that it is still possible to address problems and to arrive at consensus at the state level in ways that are very, very difficult at the national level. So it's still worth looking to it. But I do think that there's an agenda of federalism reform that has to look like pulling apart state and federal powers. And I think that's especially important now in education, welfare, and healthcare. It would be very hard to do.

I think, for example, that if we tried to do that, we might end up saying that healthcare financing should actually be a federal responsibility and not a state responsibility. It'd be very hard now to make that a state issue. I'd actually prefer that. I think the old kind of deal that Lamar Alexander offered back in the 80s when he was a governor and Ronald Reagan was president, and he said, if the federal government takes over all of Medicaid and gives up all of education, I'd sign up. And I think today a lot of governors would sign up for that kind of deal, and it would

improve the capacity of American federalism to function. You know, when I was a younger conservative, I remember reading about the growth of entitlements. And someone wrote, if the entitlements continue to grow, and I can't remember who this is, that the federal government will eventually be a pension plan with an army. And at the time, I thought, man, that's appalling. And then the more I think about it, hey, if it was a pension plan with an army, that might actually be a net-on-net benefit, that the inability to sort of do other things, that the taking over of healthcare financing and the social security obligations constraining the government doesn't strike me as the worst of all worlds. It's the micromanagement aspect of the federal government

that strikes me as in many ways more problematic than just the size and the abstract. I think that's right. The incredible amount of just moving money around. Every governor will say how proud he is of the fact that his state has a balanced budget amendment. He can do things Congress can never do. Well, the only reason any state can have a balanced budget amendment is because the federal government doesn't.

And ultimately the federal government does all those things that no one can actually afford. The states would have to take some of their responsibilities more seriously if they were in charge of more. And the federal government would have to think a little more clearly and concretely about the governing challenges that it confronts if we didn't have all this money flowing around in the background and allowing everybody to lie to themselves about what they're really doing.

Okay. I want to talk about the Supreme Court now and what the Supreme Court's supposed to do because overall you're offering sort of a, what I'm going to call a 1985 vision of originalism. If we just go back to the original understanding of the constitution, this will unify. We will return to a Madisonian principle. All that's great. What we've been doing though at the Supreme Court for the last 40 years is figuring out what that means when the rubber hits the judicial road, so to speak. You're following this as closely as I am as we've moved through originalism 1.0, originalism 2.0, and now originalism 3.0, text history and tradition, the return of originalism.

Originalism 3.0, text history and tradition, the return of originalism. How do you think they're doing at returning to a Madisonian vision? How would you describe your version of originalism as a judicial philosophy if you were trying to do these things? So here, let me say, one reason I'm a Madisonian is that I'm not a lawyer.

And I do think that we- He says with great pride. No, not really. Not in this case. Talking to the two of you, and I'm such a huge fan of this podcast, I feel like I'm representing myself in court, pro se, and I have no idea what I'm doing.

You're throwing around Latin like a lawyer, I'll tell you that. Well, fair enough. I am married to a lawyer, so I get this here and there. I think that some of the complaints about originalism that come from its critics on the right offer legitimate problems with it, point to legitimate problems with it, but offer solutions that don't make sense to me. The problem they point to is that, broadly speaking, originalism is very useful except in the hardest cases,

which matter most. And in those cases, the meaning of the text is genuinely unclear. The challenge is not to have the will to enforce the meaning of the text. The challenge is that we don't really know exactly what it means as applied in this situation. And so what are we supposed to do? And the answer that critics of originalism on the right have offered to that challenge has been, I would say, two waves of critique that suggest a kind of a set of philosophy, a set of philosophies that should guide the courts as they answer that question.

On the one hand, there was an argument that said, when it's unclear, the court should be guided by a commitment to individual liberty, rooted in the Declaration of Independence. The kind of Randy Barnett argument is a very serious argument, which ultimately says that judges should take it on themselves to apply the underlying philosophy of American government to situations where the text alone is not sufficient. And then we've seen a kind of second wave that says something very similar, except that the substance of the philosophy to be applied

is more like the classical or Christian legal tradition and some idea of the common good. Substantively, those two actually point in opposite directions in almost every case. But as critiques of originalism, they're very similar to each other. They both say there are times when the text is not clear enough, and in those moments,

it's the underlying philosophy of the American legal tradition that should guide us. I agree with that up to a point, but I think that the substance that should guide us. I agree with that up to a point, but I think that the substance that should guide judges is the substance that underlies the Constitution. That is, it's republicanism. It's the vision of government that the Constitution emerges from, was written out of, has been practiced through. And republicanism especially emphasizes the centrality of the legislature. Congress is first, not by accident, and we live in a republic, which means that ultimately the

direction of government has to be accountable to the most representative of the branches, so that when the text is unclear, the courts should tend to defer to legislatures, not to others, not to administrators, not to an abstract philosophy, but to the acts of the legislature. That points back toward the original originalism, right? Because the original originalism was really a philosophy of judicial restraint. Its purpose was to limit the power of judges and to limit the freedom of action of judges. The criticism offered of it is that you're limiting them too much. There are times when they have to make decisions and nobody else can make them

about what the law is supposed to mean. I think that's right, but that those decisions should be guided by republicanism, that they should lean in the direction of empowering the legislature. Obviously, that's general, right? That's easier said than done. And the hard part about being a judge is that you're dealing with a specific set of facts and circumstances. But I think that broadly stated, the current Supreme Court, the Roberts Court, actually tends to do this, to lean in this direction and to look for ways to empower the legislature, even to look for ways to make Congress do its job, for God's sake, which is sort of a summary of a lot of administrative law opinions out of this court.

It's just, won't Congress do its job so we don't have to do this? I think they're right to demand that. It's not easy to make Congress do its job. The courts can't simply do that. But I think that that's what they're trying to do is generally encouraging. I think a lot of their decisions have taken – a lot of their most controversial decisions have taken issues out of the hands of judges and administrators and tried to throw them back like hot potatoes to the legislature. That's what Dobbs did. That's what a lot of the administrative law decisions, the overturning of Chevron. Over and over they say this should actually be decided by Congress. Now that does get us back to the problem that Congress

doesn't want that hot potato. And that is the real problem. But I think from the point of view of what should the judge's role be, the judge's role really ought to be to empower the legislator to make crucial decisions in controversial situations where it's possible. Obviously some cases are just too hard for that to be simply possible. So I have this seemingly weird theory about the courts. And that is that it feels in an important way, because of the abdication of Congress,

because of the dysfunction of Congress, bear with me here, it feels like a more democratic branch in this sense. If I file a lawsuit, I will be heard. In other words, if I make a complaint, I'm going to have a moment where I'm going to get to make my case. I'm going to get to be in front of an official who is empowered to make a decision, either for or against my interests, and I will get a decision.

In many ways, that is a more empowering process. It's more empowering to an average person than interacting with Congress in any way, shape, or form. And part of that leads me to this concept of the expanded house. And I do wonder, and because a lot of folks talk about the expanded house, I do wonder if that's also a way that could make the House feel more democratic, not just in my voting for somebody who's closer to me quite literally in the sense of we're part of a smaller community now instead of one of several hundred thousand in a current House district.

We're now one of tens of thousands or whatever, much more of it. But also with many smaller constituents, a smaller number of constituents, you can actually feel perhaps maybe heard in a way that you can't feel heard now. So I do wonder about just this very capacity that in one branch of government, I can feel heard and the other branch of government, I don't feel heard at all if this makes any difference.

I do argue for expanding the house in this book, not by as much as some people want to. Daniel Allen of Harvard has argued for a 3,000 member House of Representatives, and I don't think that's a good idea. A legislature has to be a face-to-face institution at some level, but the House was intended and expected to grow after every census and it did grow after every census until 1920. And then they decided and they did this by statute to just set the size of the house at 435 and leave it there. And after that, since 1920, reapportionment has meant some states lose seats and some states gain seats. Until 1920, it didn't mean that. No state lost seats at all from the beginning of the 19th century

until 1920. And reapportionment meant that the house would grow in accordance with the growth of population and the new seats would be allocated based on where there are more people now. If the house had continued to grow by the same formula that they used all that time, it would now be larger by about 150 members. And I argue in the book that the House should be expanded now by 150 members and then should grow slowly by that same formula with every census. I think, first of all, I think of that as constitutional maintenance. I don't think that's a radical reform. It was certainly intended originally, and the change it would make would be incremental. But I think, above all, that it would be a kind of shot in the arm to Congress right now

to create a situation where members could think about other changes, too. A lot of the challenges that you run into when you try to persuade members of Congress that things could be reformed. I spent a lot of time talking to members about budget reform, and they all hate the budget process. And yet, when you talk to them about changing it, it's news to all of them that you could even do that. This is the only Congress they've ever known, right? And we've had this budget process now for 50 years.

Having 150 new members all at once would create a moment where members think things can change. What should we be doing differently? How should we think about committees in this bigger house? How should we think about the budget? And so I think of it as a moment that creates the potential for other changes too. But it would also help the house be a little more representative. Members represent a lot of people now. On average, more than 750,000 people in every congressional district. That's a huge number of people to be a representative for. It would also, by the way, rebalance the electoral college a little bit. The electoral college delegation for each state is just the size of its congressional delegation.

So if you grow the House, you grow the electoral college and you deal with the imbalance of it a little bit without a radical transformation. So I think there are a lot of arguments. That's a really good point about the electoral college would get more finely tuned to the popular vote. I love that point. Right. Yeah, I love that point.

Okay, so reforming Article I, would you have reforms for Article II or III? And in particular, we've talked a lot on this podcast about expanding the court. You want to expand Article 1, maybe we should expand Article 3, term limits, various jurisdictions stripping and how to balance, frankly, a counter-majoritarian institution that is the court, while at the same time understanding that its approval rating is dropping and at some point it only exists with the largesse of the other two branches and how to balance that.

So what other reforms are you proposing? Yeah, I, you know, it's funny. I went into this work thinking that term limits on the court might make sense and almost wanting to be persuaded that they were a good idea because... Same, Yuval, same. You know, I could sort of be open to it and say, well, yeah, we could make this change and that wouldn't be so bad. But I really tried. I worked through the arguments

and listened to a lot of people who I take seriously who want to reform in this way. I even, about 10 years ago in National Affairs, the journal that I run, I published a piece by a law professor from Missouri whose name is Josh Hawley, who's had a bit of a career since then, arguing for term limits on the Supreme Court for 18-year term limits. But I'm not persuaded. I don't think it's a good idea. And I don't think it's a good

idea because of an argument that actually, Sarah, I think you've made better than anybody, which is that the effect it would have on presidential elections and on how we understand the presidency would be very bad for our politics. And the tying of court appointments to presidential terms in that way would be a kind of deformation. I think that problem would be a very real problem. And I don't think term limits ultimately are a good idea. The problem I have with the reforms of the court is that I think the problem would be a very real problem. And I don't think term limits ultimately are a good idea. The problem I have with the reforms of the court is that I think the courts are actually

doing a pretty good job. And so the only institution in our system that is in better shape now than it was two generations ago, say, is the Supreme Court and the federal courts in general. So I'm not inclined to look for radical transformations there. I think that limiting the jurisdiction of the federal courts is within Congress's power. They can do that.

But would I spend political capital right now and it's so hard to get anything done on doing that? I don't really think I would. Ultimately, I really am much more focused on Congress. There are some reforms of the executive branch that I think are worth making. I certainly think the administrative state is vastly overgrown, but I also think that it's unaccountable and that reining in the independent agencies and putting them under presidential control is actually a good

way to bring our system back into order so that we only have three branches of government. That's one reform that presidents could advance more or less on their own and that I think could endure across presidents of different parties. So those kinds of changes. But without question, my focus here is on Congress. I think the biggest problem is in Congress and where reforms are really needed is in the first branch. You're singing our song. That's right. You won't get any argument here.

I want to argue with you. I want to fight with you. But it's so hard to fight with Yuval Levin. Yuval Levin, author of American Covenant, How the Constitution Unified Our Nation and Could. Again, thank you. And have you considered putting a copy of this book under each congressman's chair and like maybe also having glue in their chair

so they're stuck. And the only thing available is this book. You're not forcing them to read it, but also you're not providing them with food or any other form of entertainment other than just this book, maybe? That sounds appropriately coercive. That's a reform I can get behind.

I appreciate that. And thank you guys, such a wonderful conversation. It's a Cass Sunstein nudge. Uh-huh, right, exactly. Yes, there you go. A little elbow. Yeah. Thank you, Yuval.

Thank you so much, guys. David, always fun to have fellow constitutional Congress is broken nerd on with Yuval Levin. Yeah, I mean, like, peak Congress is broken nerd on with you, Vol. Yeah, I mean like peak Congress is broken constitutional nerd. Like this is like bringing in the Captain America of the Avengers of the Constitution, Constitution is broken. But of nerds. But of nerds, right.

If nerdery were a superpower, you know, this would be. Yeah, absolutely no, I really enjoyed that conversation and We have to be we absolutely have to have people who are Thinking through like how this system is supposed to work and educating Americans about how the system is supposed to work It's just so freaking hard to break through On this it's just so hard hard to break through on this. It's just so hard. So I love these conversations.

I wish they could just, I wish they could break through their podcast bounds, Sarah, and seep into the public consciousness. Well, I've got a few teasers for next week. First of all, we will be taking Labor Day off, which means there will only be one podcast episode next week, unless there's an emergency, you'll always know, we will find a way if news breaks.

But David, I have some fun guests for September now that our book series is over. And this is my real teaser for you, David, because you don't even know this. Oh boy. You know, in our last podcast, we talked about the Williams case, the defendant who challenged his

felon in possession conviction on Second Amendment grounds and very much lost in the Sixth Circuit, I got an email from his lawyer. Oh, really? And it dovetails so nicely with the conversation we were having with Matt Martens about the case for criminal justice reform and the Christian case, I would argue also the conservative case, so those two are not necessarily identical, of course. And I'm so, I may just have to read the whole thing verbatim. It's pretty convicting, David.

Oh, okay. I'm excited about this. No, yeah, that sounds great. And I'm talking to Sharif Girgis about coming on to talk about his latest law review article that's publishing in the Harvard Law Review. And Adam Feldman from Empirical Scodus has agreed to join us. And that's going to be a seven-hour podcast because there's just so much data in that guy's brain. And his latest law review article coming out about how the court and why the court decides cases not on the merits.

So, yeah, a lot of nerdery coming up in September before the Supreme Court comes back into session. Well, you know, with Sharif, who really does belong in the nerd Avengers of the Constitution, like 100% like a lot of people know you've all more people should know Sharif. A lot of people know Sharif, but more people should know Sharif. A lot of people know Sharif, but more people should know Sharif because, I mean, this is a guy who a lot of folks read, a lot of folks really rightly respect in this space. So I'm very happy to have him on.

Yeah, I mean, Sharif is gonna pull apart those different brands of originalism 3.0 for us, a conversation we've been having on and off this summer. And yeah, there is no one more steeped in the intra-originalism fights. Love it. Then Sharif, so it'll sort of pick up right where we left off with Yuval.

Yuval's like, I'm not a lawyer, this isn't really what I do. And Sharif's like, I am and I do. I mean, and he knows where all the bodies are buried in the originalism fights. It's sort of like having a, it's like having on a celebrity gossip columnist to talk about like a beef between, you know, two rappers. It'll be awesome.

And so much of the statistics that I use on this podcast come from Adam Feldman, and I try to give him lots and lots of credit, but again, not enough people, I think, totally vibe on empirical SCOTUS the way I do. Literally, David, in my free time, I go back and read old ones that either I hadn't read before or that I'd forgotten because you can't remember them all, except Adam can't, but I can't. So I've got questions for Adam about digs, when the court dismisses as improvidently granted cases

and how that trend has changed over time. Lots to look forward to in September. Next week, I'll be reading that email from Mr. Williams later.