On Our Post-Constitutional Moment, Pt. 1

After they leave office or government service, high ranking, former government officials usually do not present a vision of how things might well be improved in their former abodes. After all, doing so implies confronting one’s failures in office. The more usual path is to write self-justifying memoirs or to cash in in the private service. (A few noble souls go into teaching.)

By contrast, in 2022 Russell Vought (the returning Director of the United States Office of Management and Budget) published a very informative essay in The American Mind, “Renewing American Purpose: Statesmanship in a post-Constitutional moment,” that — if you read a bit between the lines — admits that the first Trump administration didn’t amount too much. But the purpose of the essay is to show that a different approach may yield quite a bit of fruit. That is, there is an implied analysis of what went wrong and how to change things. Trump II may well be, in part, that experiment. (I learned about Vought’s essay from this piece last week by Jack Landman Goldsmith & Bob Bauer [HT: Brian Leiter).

The first half of the essay is a diagnosis of the failure of Trump I (that is, it got nothing done). One way to put it (not his) is that in a certain sense, Hayek won formally, but not substantively during the twentieth century:

Our system is now much more like an unwritten constitution which operates based on precedents, like the English system. No constitutional amendments have been passed to enact this, but new legal paradigms have been introduced—a “living constitution,” independent agencies, permanent, “expert” civil servants—that have changed the underlying separation of powers at the core of our system.

Let’s call this technocratic Hayekianism. The system evolves slowly as the executive branch tackles new social problems or meets new political demands. One advantage of this system is, then, that by reducing uncertainty over the background rules and norms it generates a framework for business and individual decision-making. And because it is quite permissive to new kinds of organizations and businesses, it facilitates (despite the cost of regulation) a highly dynamic society.

Now, you might think that in this system, the President as the chief officer of the executive branch becomes ever more powerful. But the point is that the presidency is also hemmed in by precedent and that his/her control over the branches she is in charge of is curtailed by the rules that govern the civil service and appointments:

Yes, power has been delegated to the executive, but the president and the executive branch are no longer quite the same thing, in practice. The agencies care more about the congressional appropriations committees than they do about their president. They draft rules according to the authorizing committees’ interests. And they are all influenced by the values and milieu of a permanent ruling class in a capital city divorced from the everyday concerns and wishes of the American people themselves.

As regular readers discern, lurking behind this analysis is the theorizing of Burnham and Samuel Francis. There is a lot more Burnham here because in quite Machiavellian fashion Vought proposes “to return to the original Constitution.” And to my new reader, please be aware I am not using ‘Machiavellian’ as a pejorative here.

Before we get to the positive program (of re-establishing the original constitution), it’s worth noting that in Vought’s analysis there is also a bit of Bagehot (as mediated by Michael Glennon’s National Security and Double Government):

Bagehot drew a distinction between what he called the “dignified institutions”—the monarchy and the House of Lords—that needed to retain its “emotional hold” on the public through its history and theatre, and the so-called “efficient institutions,” such as the House of Commons and the Cabinet, where real power resides…

The president and the vast supermajority of the House and Senate are the “dignified” in our system, and the congressional leadership, the committee barons, and the entirety of the administrative state, are the “efficient.”

Crucially, the efficient part of the system controls and sets the agenda for the ongoing evolution of the technocratic Hayekian system. Notice that on this view, elections that change the majority of both houses do matter quite a bit, but that on the whole there is quite a bit of continuity. Simultaneously this picture implies that in a 50-50 country structural power in the efficient part of the system shifts to the upper ranks of the civil service, the lobbyists, and the courts.

Either way, there is huge status quo bias built into this system, and one may come away thinking quite rationally that most elections don’t matter all that much. Let’s stipulate for the sake of argument that Vought’s picture of the double state is more less accurate.

Now, before I continue, it’s worth noting an important distinction between the UK and US. In the UK (and most European constitutional monarchies), the dignified part of the government has a very fruitful role: it blocks, or at least makes much more difficult, the emergence of charismatic leader for whom constitutional limitations are an obstacle to all-encompassing power.

As regular readers know, the name to drop here is Benjamin Constant, who saw this as powerful veto on Bonapartism and excessive democracy. This implied veto is especially effective in contexts where the monarch is, in fact, the nominal commander of the armed forces. This is why focusing on the costs of running a monarchy is often so misguided; it’s an insurance policy to protect liberal democracy. By contrast, in the US the positions of the dignified part of the constitution are open to very ambitious politicians who may well do damage.

Now, Vought blames progressivism for the existence and growth of technocratic Hayekianism, and the resultant double government. Vought very strongly implies that absent President Wilson (and FDR), the original constitution would still exist. While progressivism is not wholly irrelevant to the nature of technocratic Hayekianism, this analysis is incomplete and even mistaken on a number of levels. In what follows I will try to meet Vought in terms acceptable to a Machiavellianism.

First, the original constitution died at the First Battle of Bull Run in 1861. That constitution is not capable of doing what a constitution must do: provide a framework for enduring political order. Arguably, the content of constitution itself was one of the reasons why war became inevitable.

In fact, Vought kind of concedes this point tacitly. For, the more general innovation of Vought is that he rejects the kind of originalism that has become familiar during the last few decades (associated with names like Bork, Scalia, etc.)

Originalism should not just be interpreting the words in their original meaning. It should be to understand the logic of the original Constitution and how these authorities should be used unencumbered by the scar tissue resulting from decades of bad cases and bad statesmen.

So, returning to the original constitution does not mean toward the text of (say) the pre-civil war Constitution, but toward its inner logic. And if this logic demands a discarding of precedence, so be it. While the details of this logic matter (see part II of this series), for now it is sufficient to note that the underlying aim is to open up space or re-open space for political initiative by the legislative branch “where great questions are debated and decided in front of the American people and the tradeoffs made there” and an “energetic president with the power to bend the executive branch to the will of the American people.”

This gets me nicely to the next reason why the original and even Lincoln’s constitution died. For, second, the President’s control over the civil service requires a far-reaching spoils system. ([Progressivism did attack this.) And that’s clearly what Vought presupposes by ‘bending’ the executive branch. The problem with this is that it opens the door to corruption in Machiavelli’s sense. By this I mean that (recall) corruption is not just about illegal and legalized bribery (including the selling offices), but also and even more about the bending of the rules such that when they function properly the public good is structurally undermined.

It’s also worth noting that on this last point (the role of common/public good), Vought’s approach is quite a bit removed from, say, Adrian Vermeule’s Common Good Constitutionalism or (in an earlier generation) Kendall’s Lockean majoritarianism. Both emphasize the role of the common good as a central feature of the old constitution. I never encounter MAGA-neo-machiavellians that invoke the common/public good.

And while a certain kind of party discipline or loyalty to the president can overcome some of the problems of corruption in Machiavelli’s sense, this presupposes an unrealistic view of human nature (and politics). So, corruption is the foreseeable effect of the President’s control over the administrative branch.

Third, Vought refuses to engage with the foundational epistemic problem that has led to the deference of the legislative branch to the efficient part of the administrative branch and its reliance on experts, career civil servants, and the interests principally concerned. Due to the advanced division of intellectual labor, the legislative branch lacks time and expertise to deal with the details of legislation in most areas most of the time.* (Recall my blogging on

Joseph Heath

’s The Machinery of Government: Public Administration and the Liberal State and

Adrian Vermeule

’s Common Good Constitutionalism.) And because the budget constraint on any given bit of legislation is soft (due to the capacity to borrow), there is really little need or space to debate trade-offs.

Now, it is a foreseeable effect that if you discard the adherence to the legal framework that hems in new legislation and make it easier to legislate new laws or to let the President decide through an executive order on what the will of the American people, that you will allow more “novelty” as Vought advocates, but also that the system as a whole will become more unpredictable and (potentially more likely to be inconsistent). In addition, if you remove the role of expertise and experts (and interests affected) from the process, it is more likely that in many areas you will end up making laws less grounded in knowledge of the way the world actually works. This may well allow more political victories, but also many more quite serious policy failures.

There is a fourth reason that is related to what Vought means by adhering to the logic of the constitution. But let me stop here for now. In a follow up post, I analyze what the logic of the constitution really is according to Vought, and why that entails what he calls ‘radical constitutionalism.’'

To be continued…

(pt. 2, here)

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*My own view is that it was always so even in the smaller city-republic of the ancient Mediterranean. But the point is recognized by all representative democracies, where the legislative branch devolves these responsibilities to select committees.