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Marc Landy provides a survey of American anti-constitutionalism and a powerful argument for maintaining the constitutional order of the nation’s Framers.

Image courtesy of interviewee. July 26, 2024

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This video discusses the defense of American constitutionalism against widespread criticisms from academics and journalists claiming that the Constitution is broken, obsolete, and undemocratic. It emphasizes the importance of the U.S. Constitution as foundational to the nation's identity and republican democracy, stating it was constructed specifically for the unique character of the American people.

The speaker acknowledges criticisms regarding various undemocratic aspects of the Constitution, such as the Electoral College and the equal representation of states in the Senate, while noting that these features serve important purposes in moderating democracy to ensure stability and deliberation. This video also addresses the birth of affirmative action under the Great Society, noting that while certain reforms aligned with constitutional principles, others, like quotas, contradict the Constitution's spirit.

The discussion includes the evolution of rights in modern America, issues of welfare reform emphasizing work requirements, and the importance of balancing democratic participation with the need for deliberative governance. Ultimately, the text expresses concerns over the trends in governance towards administrative rule, which lack accountability and undermine traditional democratic principles, while recognizing the resilience of American institutions in facing contemporary challenges, including the presidency of Donald Trump.

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Defending American constitutionalism,

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which wouldn't need defense if it wasn't under such

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absolutely, vast attack from law, professors,

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journalists, other political scientists, they,

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there's a famous headline in the New York Times

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by two Harvard law professors,

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or, no, I think the two Harvard Political

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Science professors.

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The Constitution is broken and cannot be redeemed.

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It's obsolete. It's undemocratic, it's egalitarian.

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It, it, it fosters greed.

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I mean, it, it is remarkable the sheer extent

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of the criticism.

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So that was our immediate aim.

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This, this has to be responded to.

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But our larger aim, we do have a larger aim.

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And that, that's really to, to give a,

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a, a sense of why our constitutional order,

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is so well constructed to enable the United States

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to retain a Republican democracy in the face

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of all the challenges that modernity offers.

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And I, I do wanna add, you, you have to,

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this really comes from Montesquieu.

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You, you have to build a constitution

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for the people you have.

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I'm not saying this is the best constitution for uk,

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but, it's the best.

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The American people are very strange

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and somewhat difficult, rambunctious set of people.

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This constitution is admirably designed for us, not for you.

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So the key to our constitution is

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that it really was our founding.

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Uh, there was no United States before the Constitution.

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This contrasts with all your, my European friends.

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I mean, there was, there was France

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before there was a republic.

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Um, there was certainly England,

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before the rise of Parliament.

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But, but we founded ourselves.

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And that's really important

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because our co mo,

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many constitutions ri everybody has a written constitution

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now that's just dere.

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But in most places, it's only part

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of what's important in the governing of the country.

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For us, it's the essence. It's who we are.

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It, it really does found us as a people.

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The right to bear arms does arise from our revolutionary

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heritage, and from, I'm sorry to say,

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the oppression we suffered from Britain. Militias

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Were formed in all the colonies, local militias,

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farmers, and, you know, merchants who

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on imagine Saturday morning, came to the town green

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and oiled their muskets and,

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and, hopefully practiced a little shooting.

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So it's, it, it's ingrained in us.

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And when you, most, most people,

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in the Northeast don't buy any of this.

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But this is a big country.

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And I'm telling you, I'm recently back from Ohio,

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and people who live in rural areas where

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that are very lightly policed, they, they would

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not give up their guns.

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And they have the, the advantage

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that it is written into our Bill of rights, which is part

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of the Constitution.

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The criticisms, I, I think there are of, of

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several different kinds.

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One is just the specific criticism

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against the non-democratic aspects of our constitution.

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The way we elect a president is not fully democratic.

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The way we have every, every state

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represented equally in our upper house, which, unlike yours,

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is equally powerful, in some ways more powerful.

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It's undemocratic.

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There's no, our system of federalism,

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which allows different, states to go off

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and to very, very different directions is undemocratic.

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So it's a powerful ca it's a powerful argument.

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And so there's efforts to ref, to change the Senate,

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to change the electoral college,

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to reform the Supreme Court, which doesn't exactly require

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constitutional amendment,

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but is our, our view, the way

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of our Supreme Court is deeply ingrained in our

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constitutional tradition, I think.

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I think those are the biggest ones.

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Um, and then there's a broader critique

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I call the critique.

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Not so much of the letter as the spirit of the Constitution,

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that it's anti-democratic egalitarian,

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fosters materialism, excessively capitalistic.

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Uh, there there's a sense that we as a people have,

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have, have taken too much,

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credence in a kind of 18th century view of the world.

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So I, I would combine those two.

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Well, let me speak to the Great Society.

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I'm old enough to have lived through the Great Society.

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So I feel that both is a certain kind of affection

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and certainly a certain kind of experiential knowledge

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of the, of the Great Society.

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Great society is a, is a great place for us

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to look at a theme

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that we raise in the book called The Constitutional Grain.

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We are, we're saying just like, in,

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in furniture building, you wanna stick with the grain.

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The Constitution really does help

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orient us, I think, to see that there are certain ways

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to do reform that are in the constitutional grain,

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certain forms of, of reform that are against the grain.

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So John, the, the Great Society had both.

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Let's talk about, talk about the whole

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Johnson administration.

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So the Civil Rights acts of 64

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and 1965 are

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probably the most important, in the constitution,

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in the grain reforms of the,

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of our modern history, right?

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We just simply, made,

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discrimination on the basis

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of race in public accommodations in,

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eateries in, employment.

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Uh, and then most importantly in the 65 Act voting,

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this was the kind of, well,

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I would call it a conservative revolution,

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because it, it really did change America,

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but well within the, the grain of our, of our constitution.

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But the great society also,

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went against the constitutional grain.

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Uh, probably the clearest example, well,

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first of all, affirmative action was born in the,

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in the great society, even though it's not in,

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it's not at all in the civil rights laws, never has been.

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But, Johnson went beyond the law.

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He was so moved by the plight of African Americans

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that he said, you know, it's not enough to just set up a a,

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put it letting everybody get

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to the starting gate at the same time.

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Because if some people have lousy footwear

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and haven't been coached

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and bad nutrition, it's not enough for them to just get

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to the starting gate at the same time.

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So the whole idea of affirmative action was to give special

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consideration to a, a particular race of people.

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And there's, I have enormous sympathy with this idea,

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except it is so flagrantly unconstitutional,

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and it, in its actual

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what it amounted to.

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In fact, and this was even clear in the very first executive

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order that Johnson issued to implement affirmative action.

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It was quotas. It was quotas.

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You can't really do that kind.

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You can do affirmative action in a very positive way

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by literally, you know, searching out minority applicants,

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certainly providing all kinds of opportunity

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for remedial education.

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Uh, I'm so proud that my school,

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Boston College now has started a two year separate school

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for, disadvantaged high school graduates

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to bring them up to speed.

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Right? You can say that's good affirmative action,

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bad affirmative action, of course means quotas, which

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violates the, the letter

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and the spirit of the Constitution, life, liberty,

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the pursuit of happiness assembly.

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Every imaginable political question

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of political liberty is settled

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by the Constitution in favor of liberty.

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Now, the interesting modern phenomenon is the extension

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of rights beyond

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what you might say government can't do to,

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rights that we, that that have become largely part

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of the, public understanding,

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a right to security in your old age.

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The United States has that, more recently, the right

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to, medical care, despite

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what you may hear in some circles.

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Uh, the, the US covers medical care for everybody,

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as well as anybody else.

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Well, I'm not saying anybody, you know,

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the Scandinavians always do better,

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but I, I think we compare quite favorably to Britain

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and France, Germany.

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Um, you know, now we have discussion of a right to,

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a stable climate, a right

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to clean air.

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I mean, these, these are very much in the

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realm of discussion.

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I think they, they're extremely difficult matters,

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but Constitution does not prevent any of that.

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Uh, if the people,

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if the people's Representatives wanna pass laws

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that are very protective of environment,

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constitution is, is quite neutral on that.

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The Constitution is a

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capitalist document.

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If you don't like capitalism, you are, I think, quite free

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to not like the, the Constitution.

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Remember I said that the Constitution was written for the,

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for the people that were there.

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America was then

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and is now an extraordinarily enterprising nation.

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People love

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private property.

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They love the ability to compete that as long

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as it's protected by some broad notion of equal opportunity,

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that holds, that can be called capitalism.

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I, I think that's a little too, reified.

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What I think it really re we are an enterprising people.

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Japanese are an enterprising people, right?

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We're not the only enterprising people in the world,

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but since we are that way, we have a constitution

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that reflects that.

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If you are able-bodied, if you are, if you are poor,

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you are entitled to help from the government.

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But if you are able-bodied poor, you must work.

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It's not enough to say you're training to work,

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you're looking to work, you must work.

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And it also is time limited.

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You can only stay on for a few years at a time

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to a total of five.

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And this has been an extraordinarily successful reform.

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It, it gave the right incentives to, to,

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to poor people, who in the previous regime,

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it was very hard for them to really

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have a great motivation to work

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because the amount of money they would make working,

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might not be all that much greater than

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what they could get from the government dole.

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But interestingly, with this work incentive,

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millions of,

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poor people left the dole and are working.

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And of course, it creates all kinds of inconveniences

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because a lot of this is aimed at,

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mothers with young children.

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But, first of all, there is embedded in most states,

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welfare reform, some real efforts at improving,

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daycare.

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And of course, you know, other working poor women had

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to, had to find daycare.

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So one of the things that welfare reform does is to

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abolish this invidious distinction

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between working poor women and welfare women.

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The main argument, is really quite simple,

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and I, it, it requires, returning, sort

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of emphasizing the theme that, we didn't discuss yet.

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But it's one of the most important themes of the book.

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Modernity presents terrible challenges

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to Republican democracy.

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The size, the mass, the, the modern state is huge.

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It's heterodox, it's fractionated.

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Um, it's very difficult for people to exercise the kind

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of democratic, participation

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that was possible in Athens that was possible in the,

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wonderful town, townships of New England.

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Uh, no, this isn't gonna work.

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You need a mitigated form of democracy.

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The popular will cannot directly

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unfettered expressions of the popular will lack the kinds

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of, checks,

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that are required to keep, to keep a stable government.

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So all these non-democratic aspects of the Constitution,

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and they are there as we've, I think I've already mentioned,

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that America's not a democracy, sorry,

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that's purposeful.

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What we do is we, we create not obstacles

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to democracies, hurdles for democracy.

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In the long run, the popular will wins out.

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It's a question of restraining it, of creating

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arenas for serious deliberation, which is what our House

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of Representatives and Senate are supposed to be.

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If we have time, we can see why that's not working so well.

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But I don't know if we have time for that.

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Um, so the emphasis of the,

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constitution is mitigated democracy to provide the time

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and space for deliberation.

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And, you know, both sides prevent challenges. To what?

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To the constitutional grain.

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The emphasis is always on Trump.

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And, the risks that he poses.

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And those are, Adam braided by January 6th.

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So, I, I don't pretend to be sanguine, about Trump.

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I, I have a strong sense in the residual strength

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of our institutions.

17:10.485 --> 17:14.045
I, I don't think we're going to, descend

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to fascism under Trump,

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but the Democrats, have been,

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saying mostly responsible

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for a whole trend in our government

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that I talk about at some length in the book of

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replacing a constitution based

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essentially on representation

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and deliberation with a cons, with a, an actual government

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that's run mostly by government agencies and courts.

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This is profoundly

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Anti-democratic, and, and

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because of the total lack of democratic accountability,

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a totally anti-Republican.

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So both sides present challenges

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that Trump is the more flamboyant challenge.

"Defending the Foundations: The Resilience and Critique of American Constitutionalism"

00:00:00 - Defending American constitutionalism, which wouldn't need defense if it wasn't under such absolutely, vast attack from law, professors, journalists, other political scientists, they, there's a famous headline in the New York Times by two Harvard law professors, or, no, I think the two Harvard Political Science professors. The Constitution is broken and cannot be redeemed. It's obsolete. It's undemocratic, it's egalitarian. It, it, it fosters greed.
00:00:47 - of the criticism. So that was our immediate aim. This, this has to be responded to. But our larger aim, we do have a larger aim. And that, that's really to, to give a, a, a sense of why our constitutional order, is so well constructed to enable the United States to retain a Republican democracy in the face of all the challenges that modernity offers. And I, I do wanna add, you, you have to,
00:01:25 - You, you have to build a constitution for the people you have. I'm not saying this is the best constitution for uk, but, it's the best. The American people are very strange and somewhat difficult, rambunctious set of people. This constitution is admirably designed for us, not for you. So the key to our constitution is that it really was our founding. there was no United States before the Constitution.
00:02:09 - I mean, there was, there was France before there was a republic. there was certainly England, before the rise of Parliament. But, but we founded ourselves. And that's really important because our co mo, many constitutions ri everybody has a written constitution now that's just dere. But in most places, it's only part of what's important in the governing of the country. For us, it's the essence. It's who we are. It, it really does found us as a people.
00:02:52 - heritage, and from, I'm sorry to say, the oppression we suffered from Britain. Militias Were formed in all the colonies, local militias, farmers, and, you know, merchants who on imagine Saturday morning, came to the town green and oiled their muskets and, and, hopefully practiced a little shooting. So it's, it, it's ingrained in us. And when you, most, most people,
00:03:29 - But this is a big country. And I'm telling you, I'm recently back from Ohio, and people who live in rural areas where that are very lightly policed, they, they would not give up their guns. And they have the, the advantage that it is written into our Bill of rights, which is part of the Constitution. The criticisms, I, I think there are of, of several different kinds. One is just the specific criticism against the non-democratic aspects of our constitution.

Title: "Evaluating the Critiques and Legacy of American Constitutional Democracy"

00:04:11 - The way we have every, every state represented equally in our upper house, which, unlike yours, is equally powerful, in some ways more powerful. It's undemocratic. There's no, our system of federalism, which allows different, states to go off and to very, very different directions is undemocratic. So it's a powerful ca it's a powerful argument. And so there's efforts to ref, to change the Senate, to change the electoral college, to reform the Supreme Court, which doesn't exactly require
00:04:52 - but is our, our view, the way of our Supreme Court is deeply ingrained in our constitutional tradition, I think. I think those are the biggest ones. and then there's a broader critique I call the critique. Not so much of the letter as the spirit of the Constitution, that it's anti-democratic egalitarian, fosters materialism, excessively capitalistic. there there's a sense that we as a people have, have, have taken too much,
00:05:36 - So I, I would combine those two. Well, let me speak to the Great Society. I'm old enough to have lived through the Great Society. So I feel that both is a certain kind of affection and certainly a certain kind of experiential knowledge of the, of the Great Society. Great society is a, is a great place for us to look at a theme that we raise in the book called The Constitutional Grain. We are, we're saying just like, in, in furniture building, you wanna stick with the grain.
00:06:17 - orient us, I think, to see that there are certain ways to do reform that are in the constitutional grain, certain forms of, of reform that are against the grain. So John, the, the Great Society had both. Let's talk about, talk about the whole Johnson administration. So the Civil Rights acts of 64 and 1965 are probably the most important, in the constitution, in the grain reforms of the, of our modern history, right?
00:06:58 - discrimination on the basis of race in public accommodations in, eateries in, employment. and then most importantly in the 65 Act voting, this was the kind of, well, I would call it a conservative revolution, because it, it really did change America, but well within the, the grain of our, of our constitution. But the great society also,
00:07:37 - probably the clearest example, well, first of all, affirmative action was born in the, in the great society, even though it's not in, it's not at all in the civil rights laws, never has been. But, Johnson went beyond the law. He was so moved by the plight of African Americans that he said, you know, it's not enough to just set up a a, put it letting everybody get to the starting gate at the same time. Because if some people have lousy footwear and haven't been coached

"Affirmative Action and the Constitutional Landscape: Navigating Rights and Responsibilities"

00:08:18 - to the starting gate at the same time. So the whole idea of affirmative action was to give special consideration to a, a particular race of people. And there's, I have enormous sympathy with this idea, except it is so flagrantly unconstitutional, and it, in its actual what it amounted to. In fact, and this was even clear in the very first executive order that Johnson issued to implement affirmative action.
00:08:57 - You can't really do that kind. You can do affirmative action in a very positive way by literally, you know, searching out minority applicants, certainly providing all kinds of opportunity for remedial education. I'm so proud that my school, Boston College now has started a two year separate school for, disadvantaged high school graduates to bring them up to speed. Right? You can say that's good affirmative action, bad affirmative action, of course means quotas, which
00:09:37 - and the spirit of the Constitution, life, liberty, the pursuit of happiness assembly. Every imaginable political question of political liberty is settled by the Constitution in favor of liberty. Now, the interesting modern phenomenon is the extension of rights beyond what you might say government can't do to, rights that we, that that have become largely part of the, public understanding, a right to security in your old age.
00:10:24 - to, medical care, despite what you may hear in some circles. the, the US covers medical care for everybody, as well as anybody else. Well, I'm not saying anybody, you know, the Scandinavians always do better, but I, I think we compare quite favorably to Britain and France, Germany. you know, now we have discussion of a right to, a stable climate, a right to clean air. I mean, these, these are very much in the
00:11:01 - I think they, they're extremely difficult matters, but Constitution does not prevent any of that. if the people, if the people's Representatives wanna pass laws that are very protective of environment, constitution is, is quite neutral on that. The Constitution is a capitalist document. If you don't like capitalism, you are, I think, quite free to not like the, the Constitution. Remember I said that the Constitution was written for the,
00:11:45 - America was then and is now an extraordinarily enterprising nation. People love private property. They love the ability to compete that as long as it's protected by some broad notion of equal opportunity, that holds, that can be called capitalism. I, I think that's a little too, reified. What I think it really re we are an enterprising people. Japanese are an enterprising people, right?

"Navigating Welfare Reform and Democratic Challenges in Modern America"

00:12:25 - but since we are that way, we have a constitution that reflects that. If you are able-bodied, if you are, if you are poor, you are entitled to help from the government. But if you are able-bodied poor, you must work. It's not enough to say you're training to work, you're looking to work, you must work. And it also is time limited. You can only stay on for a few years at a time to a total of five. And this has been an extraordinarily successful reform.
00:13:11 - to poor people, who in the previous regime, it was very hard for them to really have a great motivation to work because the amount of money they would make working, might not be all that much greater than what they could get from the government dole. But interestingly, with this work incentive, millions of, poor people left the dole and are working. And of course, it creates all kinds of inconveniences
00:13:52 - mothers with young children. But, first of all, there is embedded in most states, welfare reform, some real efforts at improving, daycare. And of course, you know, other working poor women had to, had to find daycare. So one of the things that welfare reform does is to abolish this invidious distinction between working poor women and welfare women. The main argument, is really quite simple,
00:14:35 - of emphasizing the theme that, we didn't discuss yet. But it's one of the most important themes of the book. Modernity presents terrible challenges to Republican democracy. The size, the mass, the, the modern state is huge. It's heterodox, it's fractionated. it's very difficult for people to exercise the kind of democratic, participation that was possible in Athens that was possible in the,
00:15:16 - no, this isn't gonna work. You need a mitigated form of democracy. The popular will cannot directly unfettered expressions of the popular will lack the kinds of, checks, that are required to keep, to keep a stable government. So all these non-democratic aspects of the Constitution, and they are there as we've, I think I've already mentioned, that America's not a democracy, sorry,
00:15:56 - What we do is we, we create not obstacles to democracies, hurdles for democracy. In the long run, the popular will wins out. It's a question of restraining it, of creating arenas for serious deliberation, which is what our House of Representatives and Senate are supposed to be. If we have time, we can see why that's not working so well. But I don't know if we have time for that. so the emphasis of the,

"Challenges to Constitutionalism: Trump, Democracy, and Institutional Resilience"

00:16:39 - and space for deliberation. And, you know, both sides prevent challenges. To what? To the constitutional grain. The emphasis is always on Trump. And, the risks that he poses. And those are, Adam braided by January 6th. So, I, I don't pretend to be sanguine, about Trump. I, I have a strong sense in the residual strength of our institutions. I, I don't think we're going to, descend to fascism under Trump,
00:17:19 - saying mostly responsible for a whole trend in our government that I talk about at some length in the book of replacing a constitution based essentially on representation and deliberation with a cons, with a, an actual government that's run mostly by government agencies and courts. This is profoundly Anti-democratic, and, and because of the total lack of democratic accountability, a totally anti-Republican.
00:17:59 - that Trump is the more flamboyant challenge.

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