Secretary of State Thomas Jefferson and Congressman James Madison, Republicans of Virginia, took a lengthy trip through northern climes together in the spring of 1791. Contemporaries surmised that the two of them had in mind to invigorate the Republican proto-party of which they were understood to be the leaders. Louis P. Masur’s exquisite little book A Journey North: Jefferson, Madison, & the Forging of a Friendship shows that they did far more than that.

Masur refers to the Virginians’ northern sojourn as “a gambol through upstate New York and parts of New England” and what we would nowadays call an opportunity for them to recharge their batteries. Their ongoing conflict with Alexander Hamilton’s Federalist party had somewhat dampened their spirits, and a bit of sightseeing would perhaps reinvigorate these prominent political contestants—even if it is somewhat difficult to imagine James Madison in so light-hearted a mood as to be gamboling. Masur’s other description of the journey as an “excursion, maybe an adventure” is more apt. They did do some work along the way, the author avers, as their sightseeing at Revolutionary battlefields and meetings with local eminences perforce had political implications.

In his prologue, Masur shows that Jefferson, at least, had in mind traveling with a companion from an early age. For example, he asked John Page—a young friend and future Virginia governor—whether he had in mind to travel: “If you have,” Jefferson told him years before the Revolution, “I shall be glad of your company.” As Page would not join him, Jefferson had to wait until he was posted several years later to represent the Confederation Congress in Europe to take in the sights in much of England and France. Of rural France, he wrote, “I am now in the land of corn, wine, oil, and sunshine. What more can man ask of heaven?” He counseled a younger kinsman that traveling “makes men wiser, but less happy.” As he was likely to learn to value his homeland less if he traveled abroad, Jefferson opined that the younger man should just take in American sights: “There is no place where your pursuit of knowledge will be so little obstructed by foreign objects as in your own country, nor any wherein the virtues of the heart will be less exposed to be weakened.”

One suspects that spending time together was what the two rising statesmen enjoyed most about their voyage.

James Madison was loath to undertake significant travel. He first rejected an invitation from Jefferson to spend much of 1784 in France and then the following year turned down James Monroe’s invitation to accompany him to the Ohio territory. Monroe’s suggestions of Montreal and Quebec sojourns drew no more positive a response. In 1784, however, Madison did accompany the Marquis de Lafayette to New York and up the Hudson River (which he had visited before). He told Jefferson in the wake of this journey that he would like to see “the eastern states,” i.e., New England, on the first convenient occasion.

Masur provides a kind of précis of Jefferson’s life prior to the trip with Madison, capturing all of the main points in a slight space and giving a good impression of the older man’s personality along the way. A substantial deepening of the two men’s friendship followed the death of Jefferson’s wife, particularly as the two shared time together in Philadelphia between that lamentable event and Jefferson’s departure for diplomatic duty in France. In 1784, not for the last time, Jefferson tried to persuade Madison to establish an abode close to Monticello.

Their political relationship is also succinctly presented. Like most Federalists of the 1780s, Madison was aghast at Shays’ Rebellion; Jefferson, away in France, found something very un-French to admire in Berkshires Massachusetts men’s tax resistance. A similar impulse left Jefferson quite skeptical of the proposed United States Constitution, which his friend had played the lead role in writing. To placate Orange County Baptists, Jefferson, Governor Edmund Randolph, George Mason, and George Nicholas, Madison took up Jefferson’s dear cause of constitutional amendments. Masur’s account of these matters, familiar to students of the men and the period, is brief and clear. So too that of the Jefferson/Madison-led Republican Party’s opposition to Treasury Secretary Alexander Hamilton’s program.

Some of the material Masur includes is of interest to students of Jefferson, Madison, and the United States in this period, though not likely to people solely interested in the Northern Sojourn of 1791. For example, the story of the slave James Hemings’ service to Jefferson in Virginia and France, besides his eventual emancipation in America and ultimate suicide, has little to do with the events of 1791. So too the imbroglio over publication of Jefferson’s comment on a copy of Tom Paine’s “Rights of Man” that it would counteract certain “political heresies which have sprung up among us.” The “heresies” he had in mind had been endorsed by Vice President John Adams, whom Jefferson certainly did not intend to contradict in so direct a manner before the public—yet here it was. Masur seems to include these marginally relevant tales just because he finds them interesting. (The Paine tale ends with an observation that Timothy Pickering was due to have a distinguished career, which is one way to describe it.)

We are told after this that Madison and Jefferson fell into “the very party system that they dreaded,” and by the end of the same paragraph, Madison says that party disputation “could not be prevented,”—which anyone familiar with his famous Federalist #10 would find totally unsurprising. Jefferson stooped to secret partisan machinations and lied to President Washington about being involved, as the President surely must have known. That the two Republican chieftains dined with prominent administration critics before their departure to the north cannot have allayed anyone’s suspicions.

“No question,” Masur says, “politics was on everyone’s mind” as our heroes began their journey. “Jefferson and Madison’s tour through Federalist New England undoubtedly reinforced for them the necessity of taking a firm public stand against what they saw as the heresies of the day. Yet, in the end, politics was not their main purpose.” “Health, recreation, and curiosity,” said Madison, prompted their trip. What else might we expect him to have said?

From then on, each chapter of the book about the journey itself is titled to refer to one of the main matters of interest to Jefferson and Madison as they made their way. Jefferson famously was a man of encyclopedic interests, and Madison, too, could be prompted to take up matters of fascination. While we are prone to think of them now as among the premier politicians in the country’s history, both of them were first substantial farmers, of course, and one of the purposes of their journey was to investigate the problems posed to American agriculture by the Hessian fly.

Masur provides information about the new pest’s appearance in Europe, about Jefferson’s role in spurring the American Philosophical Society to investigate the Hessian fly, about the questions regarding the fly—when it first appeared, whether it grew from egg or worm, the type(s) of wheat it attacked, how it had been successfully fought—to ask people along their route. “Jefferson’s most extensive writing” on the trip, we learn, “was his notes on the Hessian fly.” “They are never in the grain or chaff,” he jotted, likely irked by the British government’s measures to exclude American wheat imports. Though an amateur scientist, Jefferson was a notable one. In his leisure time, he did significant mental work, and Madison was right along with him. Much of their recreation on the trip had practical application.

Masur also describes Jefferson’s relationships with one of his daughters and a slave, as shown on this trip. Rather than a single narrative account, the book presents a timeline with several points of interest along it, at which the author delves into related, sometimes distantly related, matters. The “forging of a friendship” in the book’s title does not exactly capture the book’s content. For example, there are sections on Jefferson’s relationship with his younger daughter and on the slave man he took with him to France, neither of which is related to the older man’s relationship with James Madison.

A substantial section on Madison and slavery, though interesting, is not much about the men’s friendship either. Like Jefferson, he thought seriously about slavery, and Masur considers his record in this regard. Like many other Upper South liberals of his day, Madison believed that the sole practicable solution to the slavery problem was to find someplace to which American slaves could be sent. While Masur’s account of this matter will hold the interested reader’s attention, it is not obviously related to the book’s supposed theme.

In sum, A Journey North ably tells the story, with substantial digressions, of the northern trip James Madison and Thomas Jefferson took in 1791. Perhaps the most memorable aspect of this well-written little book is the story of Jefferson’s leaving his walking stick to Madison “as a token of the cordial and affectionate friendship which for nearly now an [sic] half century, has united us in the same principles and pursuits of what we have deemed for the greatest good of our country.” Masur illustrates it with a photo of the stick, which Madison returned to Thomas Jefferson Randolph, Jefferson’s favorite grandchild, thus accounting for its presence at Monticello today. One suspects that spending time together was what the two rising statesmen enjoyed most about their voyage.

In the eighteenth and nineteenth centuries, the war over war powers demonstrated a healthy, albeit messy, constitutional system. In both branches, there were battles about when and where the US should use its military and how large that military should be. These questions would shape deliberations between the executive and legislative branches for decades, with men in both branches attempting to assert their preferences, and they would claim those who disagreed did not have a proper understanding of the founding principles. Arguably, those who favored a larger military capable of helping the US become a great power tended to win out, even in the early years. Only a few decades after independence, they doubled the size of the US with the Louisiana Purchase in 1803, followed by the acquisition of the Floridas in 1819, the annexation of Texas in 1845, the acquisition of the Oregon territory in 1846, and finally seizing half of Mexico’s territory by the end of the war in 1848. Those who hoped for a larger military could point to the expansive territory and the two oceans as a justification for increasing the size of the military.

The desire to move across North America did not come exclusively from the executive branch. Voices in both branches wanted continental dominance, and they won out over those whose preference was for a small republic. Even in the nineteenth century, when the United States was considered isolationist, these acquisitions and the Mexican-American War showed a clear victory for those with grand ambitions for the United States and its place in the world.

During this time, we do not see presidential unilateralism. If a president wished to initiate a military operation, he would ask Congress for permission to purchase territory or start a war—in Jefferson’s case, he asked for forgiveness after a fait accompli. Congress, in turn, would engage in a meaningful debate about the merits of the action, and provide him with permission or deny it. Subsequently, if a war effort proved questionable or problematic, they would again debate the merits of the prosecution of the war and hold the executive accountable. During an operation, spending would increase, and a president would have more power. At the conclusion of the operation, the military would draw down, and Congress would return to its coequal status.

This changed with the Spanish-American War. President William McKinley assumed a great deal of power—at the expense of Congress—and military spending started ratcheting up. The healthy push and pull over the eighteenth and nineteenth centuries between the branches began eroding then continued to do so through WWI. The healthy balance never returned after WWII. The Cold War and the War on Terror then exacerbated an already problematic relationship. Congress did not have the incentives to reassert its coequal status. This is certainly problematic for the separation of powers and the health of the constitutional system; there is a bigger problem. Congress facilitated unilateral presidential decision-making when it comes to the military without much oversight from the people, the courts, or Congress. This lack of deliberation and accountability has led to the operationalization of bad policy. This policy creates new security threats rather than diminishing them, and we have seen decades without a coherent grand strategy. Despite mountains of evidence proving the need for a more assertive Congress, presidents continue to make the same kind of mistakes in military engagements, large and small.

World War I

World War I was a flash point in the balance of power between the branches, with Congress standing firm against a president encroaching on legislative powers. In the early days of the war, Congress and President Woodrow Wilson agreed that the US should stay neutral. The sinking of the passenger ship, Lusitania, in 1915 changed their thinking. At this point, Wilson felt compelled to bring the United States into the fight due to the immorality of the Germans. He followed the steps outlined in the Constitution and solidified by nineteenth-century norms: He produced a war message for Congress explaining that he had exhausted every diplomatic avenue available. He emphasized the inhumanity of the Germans and requested a declaration of war, which Congress then provided. In the declaration, it claimed that the Imperial German Government (not the people) was at war with the American Government and that the German government was the aggressor. As a consequence, “the President … is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful term.”

After WWII, the United States and its industries remained intact, making it the sole liberal democracy capable of defending that form of government.

Congress told the president what he was authorized to do, what he could do to accomplish it, and the expected conclusion of the conflict. Until that conclusion, Congress accepted its responsibility to use its power of the purse to ensure a successful conclusion. We see in Wilson’s application to Congress and its declaration, coequal branches with different but interlocking responsibilities to each other and the people of the country.

As the American constitutional system allowed, during wartime, Wilson enjoyed more discretion and a greater ability to command. At the end of the war, a healthy rebalancing occurred. Wilson came to the Senate with the League of Nations Treaty and commanded them to pass it without revisions. Quite legitimately, the Senators claimed that if they signed the treaty, they would lose some of their Article I powers. Wilson attempted to go over their heads to the people, but this did not sway the Senators. They rejected it a second time.

World War II

The American response to WWII echoed their view of WWI. They wanted to remain out of another European war. Reflecting their will, Congress passed several neutrality acts. They did not see what President Franklin Roosevelt saw: the battle for a metanarrative. For him, the fascist governments would continue to expand unless liberal democracies fought back. He attempted to work around the will of the people as expressed through these laws.

As I noted in my book on the theory and history of US war powers, “it is shocking to see how far FDR and his lawyers pushed the concept of executive power in what should have been a balanced system, with the political branches working in tandem.” One such example was the “destroyers-for-bases” agreement, in which FDR provided warships to Britain in exchange for basing rights, all by executive agreement. At the time, eminent legal scholar Edward Corwin said that Attorney General Robert Jackson’s opinion justifying the action threatened all congressional authority and constituted a step toward “totalitarian” rule. Despite his efforts, members of Congress did not check him or take steps to either support or undo the destroyers for bases agreement.

The following year, on December 7, 1941, the Japanese attacked Hawaii and the Philippines. This was a proverbial breaking point for Congress. Roosevelt asked for a declaration and, like Wilson, explained that they had to resort to war. In turn, Congress produced a declaration using the same language used in WWI, which authorized and commanded the president to act. It told him what resources he had at his disposal, who he was fighting (the governments of the Axis powers), and what happened at the conclusion.

Cold War

After WWII, the United States entered a new era with the largest economy, one of the largest militaries, and a victor’s sense of righteousness. Unlike their allies in Europe, their nation and industries remained intact, making it the sole liberal democracy capable of defending that form of government. They accepted this role as an international police force. Perhaps curiously, Congress would increasingly recede into the background as more and more power accumulated into the hands of presidents. It is almost breathtaking to see how members of the Senate reacted to the United Nations treaty and the NATO treaty. In both instances, they did not stand up for their control over the declaration of war and other Article I powers—as Senators did after WWI. The emerging imbalance in wartime decision-making came very quickly. In 1950, the UN Security Council (UNSC) created a resolution calling for a police action in Korea. Truman circumvented Congress and justified sending 6.8 million American men and women to fight using the UNSC resolution as his legal justification. Congress did not stop him.

What explains this dramatic change? There are several major factors. First, there was a broad consensus on both sides of the Atlantic that the Europeans needed to demilitarize. It was a feature of NATO. As the first NATO Secretary General Lord Hastings Lionel Ismay quipped, it would “keep the Soviet Union out, the Americans in, and the Germans down.” Second, the Americans had created nuclear weapons. The Soviets were not far behind, successfully testing their own nuclear weapon in 1950. The destructive power of this new weapon led to questions about who would control it. There was a broad consensus that the president alone should wield it to ensure flexibility and nimbleness (there are still no restraints on presidential control). The third reason is closely related to the second. Once the Soviets also had nuclear weapons, Americans worried they would use them. The Soviets wanted communism to win out over liberal democracy, and they were ruthlessly spreading it. As Russians increased their weaponry, the Americans responded in kind. Both engaged in an arms race and maintained large militaries.

While all of these contributed to the increase in presidential unilateralism, the large standing military caused the most damage to the powers of the legislative branch. In essence, they had already given tacit permission to the president to exercise his discretion by passing a large military budget, year after year. With a standing military, the president did not have to explain his decisions to Congress. He could send the military anywhere in the world, for any reason, without any significant check on his discretion.

One of the worst examples of this power is the war in Vietnam. US involvement dates back to President Dwight Eisenhower, but the escalation of the war occurred under President Lyndon Johnson. During his administration, Johnson attempted to keep the war away from the public, quietly escalating month after month. Members of his administration convinced him that if they just sent more troops, they could overcome the threat from the Viet Cong. Instead, the United States was pulled into a war it could never win and used tactics that caused a great deal of suffering. Congress only authorized force long after US involvement began, and when it did, it gave the president broad authority to escalate the conflict and use his own discretion to determine what would constitute a successful conclusion. When the legislative branch became more aware of the circumstances and realized the impossibility of achieving a victory, they used the power of the purse to draw down troops. In 1973, during the Vietnam War, Congress passed the War Powers Act to try to constrain presidential unilateralism. While there has been some controversy about the act and about how presidents address it, there are rare examples of presidents ignoring it or failing to abide by it.

The War on Terror

The tragedy of 9/11 facilitated a great deal more presidential unilateralism and congressional abdication. Due to the shocking nature of the attack and the immense pain it caused, Americans and many around the world were psychologically primed to bring the fight to this stateless enemy. Problematically, unlike the Germans or the Japanese, with a stateless enemy, there is no return address. Terrorists existed in a variety of countries around the world.

In contrast to the WWI and WWII declarations, the 2001 Authorization for the Use of Military Force (AUMF) is remarkably vague. It says the president is:

authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.

The broad grant of power arguably shows congressional support. One could also argue, however, that this is Congress ceding its coequal status and allowing the president carte blanche to make decisions—putting even more power into presidential hands. Bush had complete control over how and when to use military force to carry out an ambiguous mission without a sunset clause or an objective that would indicate when the war concluded. Even the Gulf of Tonkin Resolution—which was hardly a good example of Congress ensuring accountability—had a sunset clause. When compared with earlier declarations of war, it is clear that Congress has turned towards ambiguity and away from clarity.

Armed with such sweeping authorization, Bush’s 2002 State of the Union announced that he could and would search for terrorists in any nation. If you were not with the US, you were against it, he claimed, leading many allies to feel bullied. He labeled North Korea, Iran, and Iraq, the “Axis of Evil,” giving many the impression that the US would intervene militarily in at least one, if not all three.

By the summer of 2002, the Bush administration started beating the drum for war in Iraq. By the fall, Bush asked Congress for an authorization. Once again, we see that Congress failed to perform its duty. After listing the problems caused by Iraqi leader Saddam Hussein and the attempts by the UNSC to stop him, Congress authorized the president to:

Use the Armed Forces of the United States as he determines to be necessary and appropriate in order to 1) defend the national security of the United States against the continuing threat posed by Iraq; and 2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The ambiguity and the grant of power are staggering. Congress allowed the president to decide what was necessary and appropriate when it comes to the use of force. Furthermore, the president is defending “national security.” What is within the scope of national security? With another carte blanche, Bush and members of his administration convinced themselves the American military could overwhelm Hussein’s forces quickly—as they arguably had in 1991—and they would be “greeted as liberators.” He launched the invasion in March of 2003.

The rest of the decade would see a civil war in Iraq, followed by a surge authorized, this time, by an opposition Congress, Democrats having gained the majority in the legislature in 2006, partly due to their campaign promise to end the unpopular and disastrous war. These decisions created an appetite among the American people for a dramatic change. Tapping into this unique moment, Senator Barack Obama entered the race promising hope and change. Domestically, he had many accomplishments that pleased Democrats. In the realm of foreign policy, however, he essentially continued Bush-era policy, albeit on a smaller scale and with more circumspect rhetoric.

In this very complicated world, the decisions about when and where the US military will engage in operations large and small rest in the hands of one man.

In his campaign, Obama labeled the war in Afghanistan the “good war” and Iraq the “dumb war.” Feeling pressure from the military and the public to show strength, he was pressured into a troop surge in Afghanistan. He claimed the military would achieve success if he had these additional troops. Success, however, was ambiguous. Did it just involve degrading al Qaeda, or did it involve degrading the Taliban as well? He suggested both in a speech at Westpoint in 2009, announcing the surge. Congress did not scrutinize any of these issues. They simply provided him with the funding without reviewing whether 30,000 more troops would produce the desired result (let alone what the desired result was). This war would quietly continue until 2021. At this point, Biden planned to withdraw completely. They had accomplished what they came to do—degrade al Qaeda—and it was time to leave. Americans would leave by the end of August 2021. Due to the weakness and corruption of the Afghan government, the Taliban swept across the country and took control of Kabul on August 15.

The Arab Spring

In the spring of 2011, after decades of corrupt and brutal leaders, citizens of the Middle East and North Africa rose up and demanded change. There were crackdowns in many countries, but the two most salient ones for US foreign policy were in Libya and Syria. In Libya, Muamar Qaddafi openly expressed his violent intentions, leading the Arab League and the African League to abandon him, and they implored NATO to take action. Within a month of the violence, Obama ordered the American military to carry out air strikes in Libya as he explained in a letter addressed to Congress. Without even suggesting that he has to obtain permission from Congress, he explained the “regional and international threat” posed by Qaddafi’s actions. They had to avoid “wider instability in the Middle East” and the civil war in Libya was a threat to “the national security interests of the United States.” This level of unilateralism would shock the Founders and presidents well into the twentieth century.

Simultaneously, the Syrian leader, Bashar al-Assad, cracked down on his people. Unlike Muamar Qaddafi, however, he had close allies in Iran and Russia. NATO decided not to act, allowing a civil war to draw out for years and a refugee crisis to destabilize countries near and far. Besides these horrible consequences, the anarchy allowed for the rise of the Islamic State. Starting in 2013, this group inflicted brutal violence. In the summer of 2014, they took the dam outside of Mosul after the Iraqi military (that the US had trained) fled. Without asking permission from Congress, Obama immediately deployed US military forces to Iraq to address the very real threat.

Once again, Congress shirked its responsibility, and the president acted unilaterally to address an issue. In an attempt to find legal justification for his action, Obama reached back to the 2001 AUMF to claim that his actions against ISIS are legally sanctioned by that document and he does not need any new legislation. Congress made some attempts to revise the 2001 AUMF or create a sunset clause, but they failed. While these operations succeeded in driving ISIS off the land they claimed, the region remains unstable.

The Contemporary Landscape

Unlike his two predecessors, President Donald Trump did not start any new military operations in his first term that required a congressional response. He continued the war in Afghanistan on a low simmer, but he generally left military affairs to the generals, and they did not find any “monsters to destroy.” That doesn’t necessarily mark a turn away from presidential unilateralism, however.

On January 3, 2020, without even alerting any members of Congress, Trump ordered a lethal drone strike against the Commander of the Quds Force, Qassem Suleimani. This decision sent shock waves around the world and could have easily caused war between the US and Iran. Yet in a precedent-setting move, unlike previous presidents of both parties, he only asked executive branch lawyers to produce a justification well after the fact. The strike clearly violated international and domestic law, to say nothing of norms. Yet Congress did not rise to the occasion to restrain presidential unilateralism.

Today, in the second Trump term, the war in Ukraine persists and shows little sign of ending. There is concern that the Chinese may invade Taiwan, especially if Russia succeeds in Ukraine. War still rages between Hamas and Israel, and there is a growing humanitarian crisis in Gaza. Iranian nuclear program likely continues in some capacity despite the US strike in June, undertaken without congressional approval or input. Relations between the United States and its closest allies remain tense. In other eras, there were serious deliberations between the branches and within the branches about the direction of US foreign policy. There were still mistakes and lapses in judgment, to be sure, but all was not exclusively determined by one individual. Over the last 20 years, Congress has made only limited and unsuccessful attempts to create laws that would restrict presidential unilateralism or restrain the use of military force. The Islamic State and Obama’s use of the 2001 and 2002 AUMFs to justify his actions caused many to worry that Congress had sanctioned a forever war. In this very complicated world, the decisions about when and where the US military will engage in operations large and small rest in the hands of one man.

When looking at the Constitution and the debate in the Constitutional Convention, it is clear that the power of the legislative branch concerned the Founders. Comparatively, the executive seemed weak and required ways to ensure the administration could defend itself against legislative encroachment. Over time, the executive branch has managed to draw power into its branch at the expense of legislative power. We do not see “ambition … made to counteract ambition.” Instead, we see a constantly encroaching executive and a supine Congress. As a consequence, the president essentially has the authority to initiate any military operation, anywhere in the world, for any reason. The lack of oversight leads to questionable decisions, from the war in Iraq to the operation in Libya to the lethal drone strike against Qassem Soleimani. Without scrutiny and accountability, presidents are going to follow their own impulses and interests when making decisions that have consequences for the United States and the world. Without a healthy constitutional system where another branch checks the worst impulses of the executive, the US will continue to see questionable decision-making from an unchecked executive branch.

Next year, the Supreme Court is expected to clarify the scope of birthright citizenship. In other words, the Court will determine who may, and who may not, claim to be American citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.

The Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, to qualify as a birthright citizen, a person must have been both (1) born or naturalized in the United States and (2) born “subject to the jurisdiction of” the United States. Disputes about the scope of the clause center on the meaning of “subject to the jurisdiction of.”

Problems with the Fourteenth Amendment

Congress proposed the Fourteenth Amendment in 1866, and state legislative ratification was declared complete on July 9, 1868. The amendment was designed primarily to protect newly freed slaves from hostile state governments. It has also been the basis for some of the Supreme Court’s most memorable, fair, and popular decisions. Some even hail it, along with the Thirteenth and Fifteenth Amendments, as the basis for a “Second Founding” (a characterization I consider overdrawn).

The value of the Fourteenth Amendment has made writers reluctant to criticize the measure’s text or its drafters. Candor compels, however, the conclusion that the Fourteenth Amendment is very poorly written.

Much evidence of poor drafting is in the results: Section 2, dealing with congressional apportionment, has proved unworkable. Section 3, the Disqualification Clause, is filled with uncertainties that fueled extensive litigation during the months leading to the 2024 presidential elections. Scholars are still debating the Privileges or Immunities Clause—not merely its specific applications but even its basic purpose. Scholars and jurists continue to debate the amendment’s Due Process Clause as well.

Thus, it is unsurprising that the scope of birthright citizenship also remains unsettled.

One reason for the difficulties in construing the Fourteenth Amendment is that, while the 1866 Civil Rights Act is often cited as an interpretive source for the amendment, the language of the amendment differs appreciably from that of its predecessor statute. One cannot dismiss the legal effect of those changes, as some have, simply because a senator or two thought (inaccurately) that they meant the same thing.

Another source of difficulty is that, unlike the framers of the original Constitution, the amendment’s drafters rarely relied on words and phrases with recoverable historical and legal meanings. Instead, they coined their own phrases (such as “equal protection of the laws”) or—as in the case of the amendment’s Privileges or Immunities Clause—referred to idiosyncratic definitions rather than established ones.

The most important source for the original meaning of a constitutional provision is usually the ratification record. And yet the Fourteenth Amendment’s state ratification records, to the extent that they are published at all, often are unhelpful—although the late James E. Bond has used them to show that ratification evidence contradicts the incorporation doctrine.

Because of the poor drafting of the Fourteenth Amendment, the conflicting statements among those who proposed it, and the lack of useful ratification history, there can be no perfect interpretation of the Citizenship Clause.

If you try to interpret the phrase “subject to the jurisdiction,” you encounter all these obstacles. This language differs from the corresponding phrase in the Civil Rights Act (“not subject to any foreign power, excluding Indians not taxed”). The traditional legal meaning of “subject to the jurisdiction” (that is, “within the territory governed by”) would render that phrase redundant, and the Senate debates confirm that a new, unprecedented definition was intended. But those debates are very unclear on what that new definition was.

The Senate Debates

Commentators on several sides of the birthright citizenship issue quote from the Senate debates to support their positions. They can do this, because the debates support several sides. Sometimes, even the same Senator is found supporting several sides.

To illustrate the point, let’s consider some comments not from opponents—who would be expected to issue conflicting interpretations—but exclusively from the amendment’s supporters:

• Jacob Howard (R.-Mich), the principal sponsor, stated in his introductory speech that “subject to the jurisdiction” excluded the children of foreigners born in the United States.
• But John Conness (R.-Cal.)—another supporter—expected the amendment to grant citizenship to the children of resident Chinese nationals. Timothy Howe (R.-Wis.) claimed the Fourteenth Amendment would admit to citizenship “all men … who are born and reared upon American soil”—thereby adding a requirement of being reared and deleting any exclusion of foreigners.
• Lyman Trumbull (R.-Ill.) contended that “subject to the jurisdiction thereof” meant subject to the complete jurisdiction thereof: “not subject to some foreign Power”… owing “allegiance solely to the United States.” Thus, he agreed with Senator Howard that the amendment would exclude the children of all foreigners. But on another occasion, he said it meant, “birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.” The latter statement seems to include the children of foreigners subject to US authority.
• In his initial speech, Senator Howard made no suggestion that tribal Indians in the territories were excluded by the phrase “subject to the jurisdiction”—even though they had been excluded by the Civil Rights Act. When challenged on the point, however, Howard claimed they were excluded. This reader gets the impression that he manufactured the exclusion for the moment.
• Senator Howard also averred that the language—which, he said, excluded children of all foreigners—was merely “declaratory of … the law of the land already.” But, as explained below, it was not.

These incidents only begin to describe the confusion that characterizes the debates over the Citizenship Clause.

Deducing Principles

Unfortunately for Supreme Court justices, the jumbled state of the historical records does not excuse them from interpreting the Constitution as best they can. In this case, specific drafter expectations differed. But we may be able to deduce some common principles, and if so, those principles will have to trump divergent expectations. And the drafting history does disclose principles accepted by most, if not all, of the participants.

First: Both the presumption against redundancy and the Senate debates tell us that “subject to the jurisdiction” imposes a requirement additional to being born within the country. A 2011 Time Magazine cover story opined, “The 14th Amendment … holds that if you’re physically born in the US or a US territory, you’re a citizen. Full stop.” We can be confident this assessment is wrong.

Second: Several senators, including the principal sponsor, acknowledged that “subject to the jurisdiction” excluded the children of all or some foreigners.

Third: Several senators said, without contradiction, that the amendment restored the law as it had existed prior to the Dred Scott decision.

Fourth: Several suggested, without specific contradiction, that “subject to the jurisdiction” was tied to the Anglo-American concept of allegiance. For example, Edgar Cowan (R.-Pa.) said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.” He affirmed the prerogative of states to evict people “who acknowledge no allegiance, either to the State or the General Government.” Similarly, Senator Trumbell declared that tribal Indians “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”

Supreme Court Precedent

Supreme Court precedent is broadly consistent with these principles. The Slaughterhouse Cases (1872) included dicta stating that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Elk v. Wilkins (1882) adopted the allegiance rationale to endorse Senator Howard’s view that tribal Indians were not “subject to the jurisdiction”:

The main object of the opening sentence of the fourteenth amendment was to … put it beyond doubt that all persons … owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. … The evident meaning of these last words is … not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.

Although that language seems to exclude the children of all foreigners, United States v. Wong Kim Ark (1898) corrected course by ruling that legal foreign domiciliaries as well as citizens can pass citizenship to their children. In addition, the court imported wholesale the traditional principles of allegiance:

[The Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance. … The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual … and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

The Law of Allegiance

In an earlier essay for Law & Liberty and, along with co-author Andrew Hyman, in an article for the British Journal of American Legal Studies, I outlined the traditional rules defining when a person was in or out of allegiance. The rules were as follows:

Citizens were in allegiance. A foreign diplomat was in allegiance only to his own nation and not to the host country. Otherwise, a foreigner from a friendly nation (an “alien friend”) was in “local allegiance” to the host country, in addition to the superseding allegiance he owed his sovereign. A foreigner from a hostile nation could be in local allegiance to a host country if the host country granted a special dispensation. One who seriously broke the obligations of allegiance was guilty of treason.

A person without a dispensation and from a hostile nation was an “alien enemy” and not in allegiance to the host country. The host country might prosecute an alien enemy for other crimes, but not for treason. Any person who entered the host country illegally or otherwise rejected allegiance and was likewise an alien enemy. Despite the court’s suggestion in Wong Kim Ark, a foreigner need not be in enemy-occupied territory to qualify as an alien enemy.

Observe that nothing in the law of allegiance limited it to those foreigners who were permanent residents. Foreign merchants temporarily in England were routinely considered in local allegiance to the Crown.

Observe further that allegiance was a concept applicable to free people. It did not apply to slaves, who, like other “property,” were always “subject to the jurisdiction” of the prevailing government. In Somerset v. Stewart (1762)—the case in which Lord Mansfield ruled that there was no slavery in England—the former slave James Somerset was able to establish allegiance because under English law, he was free.

Because of the poor drafting of the Fourteenth Amendment, the conflicting statements among those who proposed it, and the lack of useful ratification history, there can be no perfect interpretation of the Citizenship Clause. But there is a best one: A child is born “subject to the jurisdiction” of the United States when his or her parents are in allegiance to the United States. That means they are either US citizens or non-diplomat foreigners from friendly countries—temporarily or permanently, but legally—in the United States.

Congress is down, but how close is it to being out? What is the ultimate source of its vitality, and how might it return to that wellspring in our deeply cynical political moment?

The three excellent responses to my initial essay, “Choosing Congressional Irrelevance,” helpfully probe these questions and bring to light some useful disagreements. Yuval Levin, Joseph Postell, Shep Melnick, and I look at Congress from different enough angles that we each perceive different possibilities for further marginalization or, perhaps, revival. In this response to their perspectives, I start by probing what I take to be the fundamental question: what animates Congress? I then consider just how gloomy we ought to be about Congress’s prospects and briefly take up a few solutions.

Do We Believe in Representation?

As is so frustratingly often the case, Yuval Levin lays out many of my central ideas with greater clarity and force than I mustered. Although Congress is our lawmaking body, Levin insists we remember that “Congress’s most fundamental purpose is not to advance major legislation.” Rather, “It is to facilitate bargaining across factional and party lines.” To the extent we think of Congress as a tool for efficient action, we will naturally come to think that “members are the problem and leaders are the solution.” If we want a congressional renaissance, we will need members to take their own role in producing a legitimate political order more seriously.

Postell takes nearly the opposite tack. He says that giving members more opportunities for influence is likely to be a recipe for institutional stagnation. In his reading of the historical record, “decentralized structures and procedures such as open amendment processes, leadership shorn of committee assignment and agenda control powers, and powerful committees, have tended to fragment Congress and render its collective action more difficult.” Were we to move away from the centralized, omnibus-heavy procedures behind most of the contemporary Congress’s enactments, our legislature would quickly find itself even more stymied by internal dissent and even more irrelevant than it is today.

Postell is surely correct to say that, at present, congressional policymaking depends on this path—but, with Levin, I take very different lessons from the historical record. Members have sought efficiency, but their energies have dissipated. As Levin puts it, the ironic result of prioritizing programmatic, ideological coordination has been to devalue their own representative function.

What does that mean, exactly?

What makes representation potent is the sense that there is something real in each congressional district that needs to be made present in national deliberations. This is something different than the political beliefs held by the majority of a district’s voters. I’m happy to go with Postell in identifying the relevant distinction as being between (national partisan) ideology and (locally rooted) interest. I share Edmund Burke’s belief in the solidity of interests, separate from opinion, as a sturdy basis for politics. We want to grapple with realities, not fantasies, even when they are somewhat grubby. Henry “Scoop” Jackson of Washington was, for decades, known as the Senator from Boeing. This was meant as an insult, but it seems healthy for a corporation at the heart of America’s military-industrial complex, which employed many tens of thousands of Washingtonians, to have had its say. (Jackson, in turn, forcefully brought the public’s concerns into the corporation.)

Narrow-minded “parochialism” is generally contrasted with high-minded universalism, but I hold with Willmoore Kendall in believing that the two values need to be in constant conversation with each other, and that Congress is the appropriate venue for the rooted interests to contend with each other and temper the grand schemes that often emanate from the White House.

Especially because of the rise of artificial intelligence, we are heading into a time of massive social upheaval, and we need a functioning politics to help us find our collective way through.

For that vision to make sense, we must believe in the connection between the organic community and its representative, who has a distinctive way of knowing about his or her community and its needs. There are three components of that: 1) believing that the organic community itself is real and distinctive; 2) believing that the elected representative has a special relationship to it; and 3) believing that, in carrying out the activity of representation, the representative will hold faith with the community, rather than betraying its interests. If all those hold, then, as Levin says, Congress takes on the emergent “capacity [of facilitating] broadly acceptable negotiated legislative bargains,” which is of immense value to our constitutional republic. (This is what I argued makes Congress “indispensable.”)

Each of these three necessary beliefs is strained today. Our belief in the integrity of geographic communities has waned as people forge more of their connections in life through the Internet, and more people work for firms far away from their homes. We are justifiably more skeptical of the idea that our representatives orient themselves toward their districts, given how much more nationalized our politics has become. If the “D” or “R” appearing next to a candidate’s name vastly outweighs everything else about them, how special of a relationship can that person really have with the district? And, finally, as Melnick points out, we live in a time when we are generally dubious of fidelity in all forms. This certainly holds regarding the public’s views of their legislators. Recent research indicates that Fenno’s paradox, in which citizens hold their own member of Congress in high esteem even as they mistrust the institution, has lost steam in recent years. Many voters clearly feel that their members of Congress care little about them, rather than their place in the news cycle. With representativeness itself under strain, Congress’s institutional self-confidence sags.

Melnick calls our attention to an even deeper concern: Counterintuitively, the juggernaut of democracy itself may be working against representation in a development that spans centuries rather than decades. Citing Tocqueville’s apprehensions of the individualistic, leveling tendencies of the democratic spirit, he notes that the purest little-d democrats may be naturally “allergic to forms and formalities. They want their favorite policies, and they want them now.” Citizens who think in these terms are likely to be skeptical of the complicated give-and-take of congressional bargaining and attracted to the presidency’s promises of instant gratification, even if they are dimly aware that the president is offering sugar highs rather than real sustenance. I, too, worry that the democratic logic triumphant in our time promotes distrust of intermediaries of all kinds. Why should representatives have any greater voice than you or I? This impulse flares up constantly in the public’s relationship with Congress.

How Bleak Is It, Really?

Then again, that point surely rang true at much earlier points in our nation’s history, and Congress has time and again shown its resiliency. We have to be careful of taking any sort of historical logic to its endpoint, or presuming we live there.

Attending to our own specific moment, we should consider: Is anything so bad about Congress in the present moment? Postell reminds us of the ongoing importance of “Secret” (“low-salience” Congress, which can achieve a good deal with little fanfare. And he (with me) notes that members of Congress did play a large role in shaping the reconciliation law that is the centerpiece of Trump’s busy 2025. He also asks whether overall productivity might be holding up just fine, notwithstanding consistently negative media coverage of Congress. Maybe legislators have changed how they work, without losing influence.

I hope these suggestions (which, to be clear, Postell offers as helpful provocations) turn out to be right, and that Congress is poised to unleash a gusher of productive legislation. But I doubt it. I tried to make clear in my original piece that Congress still does a great deal, and that it would be a mistake to simply write it off. But my sense is that the institution is genuinely on a downward trajectory. Based on previous research, I can say with some confidence that the 118th Congress (2023–24) was historically unproductive. It is too early to judge the 119th, but I’m willing to bet on low output (coupled with continued historically high reliance on omnibuses). We have lost a great deal, without reaching a nadir. We can lose much more.

Supposing that is correct, how difficult would it be to turn things around? In a different vein of his response, Postell brings out an inevitability argument: “Reducing partisan loyalty and incentivizing cross-cutting policies may simply be out of touch with the mood of the people, and perhaps no amount of institutional reform within Congress can change that.” Our Congress is what it is because we are what we are, and no amount of reformist messing around can change that. Melnick also strikes a pessimistic note, saying Americans’ dislike of open conflict will make it difficult for Congress to ever regain people’s trust.

I (try to) maintain more hope for Congress because I feel that the American people really are more complex (and interesting) than our current Manichaean style of politics, which repulses enough people to make burnout and reinvention a live possibility. Especially because of the rise of artificial intelligence, we are heading into a time of massive social upheaval, and we need a functioning politics to help us find our collective way through. Trust generated by shared experience of place may be harder to come by, but it is still a real force, which makes geography-rooted representative government the best solution. That’s especially clear given how obvious it’s become that the public fora of social media can never function as an acceptable “universal town square.” The deficiencies of mass plebiscitary democracy, unmediated (or poorly mediated) by a powerful representative legislature, are clearer every day.

How to Make It Better

Of course, articulating the good that a more self-assured Congress could bring is no recipe for actually delivering one. So let me conclude with a brief run-through of some of the suggestions laid out by my interlocutors. Postell recommends:

• Expanding the House such that, instead of representing some 750,000 constituents, each member would represent only 250,000, thereby strengthening the connection between citizens and their representatives. The principle is good, but I worry that a House of 1,300 members would be too large to support any genuine deliberation. Madison warned in Federalist #55 that an assembly’s number must be low enough “to avoid the confusion and intemperance of a multitude.” That concern makes me more receptive to the recommendation to expand to 585 members made by the American Academy of Arts and Sciences report on the subject, which Yuval Levin coauthored.
• Cancelling direct congressional primaries. Yes, but how could this possibly gain political momentum? Likewise with the cause of devolving policymaking powers back to state and local governments.
• Reforming campaign finance so that a district’s constituents are privileged. I’ve been persuaded by Michael Malbin’s work on this subject, though devising a workable scheme that doesn’t run afoul of the First Amendment is difficult.
• Limiting the presidential veto and reviving the legislative veto. I’m sold on both, but trying to practice constitutional politics outside of our current partisan divide seems very difficult, and so all Article V amendments seem like longshots. We should build bipartisan support for constitutionally valid mechanisms that approximate the legislative veto.

Rather than seek a reformist groundswell, my inclination (shared by Levin) is to urge members of Congress to reorient their chambers toward committee work, especially in the House. That this sounds dull as bricks to outsiders is an advantage; it is a program that can be pursued underneath the din of national politics. Members who care about policy and plan to spend years in Congress need to see how institutional reconfiguration can serve their own ambitions. Hard work needs to be rewarded with agenda control. Back benchers have nothing to lose but their leashes.

What is the United States’ greatest achievement? Winning World War II? Landing a man on the moon? Hollywood’s global reach? For Dartmouth College historian and Episcopal priest Randall Balmer, all these accomplishments pale in comparison to a less celebrated but more enduring breakthrough: the separation of church and state. Few ideas, he argues, have done more to preserve both religious vitality and civic peace. In America’s Best Idea, Balmer offers a spirited defense of this foundational principle, contending that the First Amendment’s twin guarantees—no establishment of religion and free exercise thereof—have made the United States a uniquely fertile ground for religious pluralism and, in turn, a more virtuous and democratic citizenry. 

He is alarmed, however, by what he views as a growing desire in some quarters to return to an older model in which church and state walked much closer together. His book is at once a historical account of how this achievement was won and a warning (at times a touch hyperbolic) about the threats now arrayed against it.

For Balmer, this arrangement is not only good for the country, but good for the faith itself. It protects religion from state corruption and safeguards government from sectarian dominance. From Roger Williams’s exile in Rhode Island to William Penn’s “holy experiment” in Pennsylvania, Balmer traces how a long line of dissenters, reformers, and visionaries helped craft a constitutional order rooted in freedom of conscience rather than religious coercion.

And in our own unsettled moment, when some Americans fear the rise of Christian nationalism, others lament Christianity’s retreat from the public square, and religious liberty lawsuits surround everything from Ten Commandments displays to Satanic Temple nativity scenes, Balmer contends that the American model remains both radical and essential. In a nation where Hindu, Muslim, Jewish, Catholic, Mormon, and secular candidates now routinely seek office, and where the religiously unaffiliated continue to grow as a cultural force, his argument feels all the more urgent. 

A mixture of history, polemic, and pastoral plea, America’s Best Idea is Balmer’s attempt to remind Americans why the First Amendment was worth creating and why it is still worth defending. His sense of urgency stems from what he sees as a growing and deeply troubling threat: the rise of Christian nationalism. For Balmer, recent efforts to conflate Christian identity with American citizenship (whether through Ten Commandments mandates in schools, public funding for religious education, or political campaigns wrapped in religious rhetoric) represent a betrayal of the founders’ vision and a danger to both church and republic. But given the flood of recent books attacking Christian nationalism, Balmer’s critique adds little that hasn’t already been said. His concerns and arguments closely mirror those found in works like Katherine Stewart’s The Power Worshippers and Andrew Seidel’s The Founding Myth, both of which portray Christian nationalism as little more than a cynical power grab built on a willfully distorted reading of America’s founding. Like them, Balmer treats Christian nationalism as a manifestly bad-faith movement—historically dubious, theologically misguided, and politically corrosive. But while those critiques may carry some merit, Balmer’s tone often lacks nuance. He shows little interest in understanding the appeal or growth of Christian nationalism and is often more interested in denunciation than diagnosis.

The notion that the United States is on the brink of becoming a theocratic nation-state owes more to Twitter threads and fringe podcasts than to any measurable political reality.

Nevertheless, what distinguishes America’s Best Idea from many other recent critiques of Christian nationalism is that Balmer is not merely issuing cultural warnings—he is casting a historically grounded, theologically informed vision for the American experiment in religious liberty. As both a historian and an Episcopal priest, Balmer defends the separation of church and state not as a secularist imposition, but as a theological and civic gift that has allowed religion in America not only to survive, but to flourish. He situates the First Amendment as a radical break from the European model of established churches, tracing its lineage to figures like Roger Williams and the Baptists, whose commitment to religious voluntarism was rooted in the gospel’s refusal to coerce. Balmer sees this system not as a safeguard against religion, but as a safeguard for religion, protecting it from factional capture and state corruption. 

His account celebrates this pluralistic religious economy as central to both the vibrancy of American faith and the health of its democracy. 

Along the way, Balmer reminds readers that evangelicals were once at the forefront of social reform movements, from abolition to temperance to women’s education. In that spirit, he calls today’s believers to recover that legacy of public witness, not by grasping for political power, but by preaching from the margins. Rather than lamenting the decline of cultural privilege, America’s Best Idea urges both religious and secular Americans to preserve the delicate architecture of the First Amendment, a system that, in Balmer’s view, has conserved both faith and freedom better than any official religion ever could.

By the end of America’s Best Idea, readers will likely come away with a renewed appreciation for the remarkable achievements of the First Amendment. Balmer’s historical sweep makes clear just how dangerous (and often deadly) state-established religion has been. Beginning with the sectarian conflicts that plagued Europe for centuries, Balmer shows that religious establishment has more often led to coercion and violence than to piety or peace. Against this grim backdrop, the American model of religious disestablishment appears not just prudent but inspired. Balmer underscores that it is precisely under this framework of constitutional neutrality that once outlawed or marginalized faiths have flourished. Baptists were once jailed in Virginia, Mormons driven west by mob violence, Catholics viewed with suspicion, and Jews barred from elite institutions. But all of these, along with newer movements like Pentecostalism, Islam, and Hinduism, have found space to grow, organize, and even shape public life in America. While the experience of religious liberty in the United States has certainly not been a straight line, when set against the alternatives found in both past and present, Balmer’s case for the First Amendment’s enduring genius is inspiring. 

While one can appreciate Balmer’s passion for the First Amendment, aspects of his framing are historically problematic. He rightly celebrates early champions of religious liberty such as Roger Williams and William Penn, yet he often portrays the American experiment in religious freedom as if it arose chiefly in opposition to traditional Christianity, rather than emerging from within it. The very Baptists he praises (figures like Isaac Backus and John Leland) were not theological progressives or pure Lockean liberals; their arguments for liberty of conscience were rooted explicitly in biblical exegesis and evangelical convictions. Furthermore, Balmer’s repeated appeals to a “wall of separation” between church and state rely on a modern and legally contested interpretation of the First Amendment. One shaped more by mid-twentieth-century jurisprudence than by the text, context, or original intent of the founding generation. Jefferson’s metaphor, which was lifted not from a legal text or constitutional debate, but from a private letter to a Baptist association, has come to bear far more constitutional weight than the framers ever intended or could have imagined. 

In emphasizing rigid separation, Balmer overlooks the fact that early American states routinely supported religion without establishing it, tied public morality to religious belief, and defended the right of religious citizens to contribute meaningfully to public life. Massachusetts, for instance, maintained religious tests for public office well into the 1830s. Connecticut’s 1818 constitution explicitly affirmed “the duty of all men to worship the Supreme Being,” and several states, including Maryland and North Carolina, required public officials to profess belief in God or in divine judgment. Far from being anomalies, such measures reflected a broad consensus that religion, particularly Christianity, was essential to civic virtue and republican self-government, even if no single denomination should be elevated above others. Much of what Balmer presents as a timeless constitutional principle is, in fact, a projection of modern jurisprudence and liberal Protestant values onto a founding generation that held a far more complex and variegated view of church and state. 

One is left to wonder why Christian moral witness is celebrated in one era but viewed as suspect in another.

Balmer’s narrative tends to flatten this complexity into a simplistic binary, either establishment or total separation, when the historical record reveals a spectrum of arrangements across the states, many of which retained close church-state ties well after 1791. By reading back a post-Jeffersonian, mid-twentieth-century model of “separation” as the founders’ original intent, Balmer risks turning a rich and pluralistic founding landscape into a legal abstraction better suited to modern polemic than historical accuracy.

Then there are the words of warning against Christian nationalism. Like many books in this genre, America’s Best Idea offers warnings that feel hyperbolic and out of proportion to the actual threat. Balmer largely overlooks Christian nationalism’s limited real-world influence, its lack of theological or organizational coherence, and its marginal growth beyond chronically online circles. As Mark David Hall and Miles Smith IV have persuasively argued, the notion that the United States is on the brink of becoming a theocratic nation-state owes more to Twitter threads and fringe podcasts than to any measurable political reality. In fact, and somewhat ironically given Balmer’s earlier work on the rise of the Religious Right, the more significant transformation in recent years has been the emergence of a non-religious right. In contrast to Christian nationalism, this is a tangible and measurable shift: according to the Public Religion Research Institute, the share of religiously unaffiliated Republicans has tripled, from about 4 percent in 2006 to roughly 12 percent in 2022, and Gallup reports that nearly one-quarter of nonreligious Americans now lean Republican. Ironically, this growing secular bloc on the right (which is probably far more aligned with Balmer’s pluralist ideals) gets far less attention than the overhyped specter of Christian nationalism, despite representing a deeper and more lasting shift in American life.

Which brings me to a perplexing tension in Balmer’s account. He lauds evangelical involvement in nineteenth-century reform movements (particularly abolition, temperance, and women’s education) as exemplars of Christian public witness. These efforts, in his view, demonstrated faith speaking truth to power and working for the common good. Balmer also praises historical figures like William Jennings Bryan for his economic populism and Martin Luther King Jr. for his prophetic civil rights leadership, holding up such examples of progressive, justice-oriented engagement as faithful expressions of Christianity in the public square. More broadly, he voices admiration for faith-based activism that advances values like social justice, equality, and inclusion.

Conversely, Balmer is consistently critical of recent evangelical political engagement, especially when it aligns with the Republican Party or centers on issues such as abortion, gay rights, or religious symbolism in public life. He often portrays such activism not as prophetic witness but as a bid to reclaim lost cultural privilege or enforce sectarian morality through legislation. One is left to wonder why Christian moral witness is celebrated in one era but viewed as suspect in another. Of course, Balmer is entitled to his political and theological commitments, but the criteria by which he distinguishes faithful from inappropriate activism often seem ad hoc and selectively applied. The result is a framework in which Christian political engagement is endorsed when it advances progressive goals but dismissed when it reflects more traditional convictions.

In short, Balmer seems comfortable rendering unto Caesar when Caesar shares his views, yet eager to proclaim “Jesus is Lord” when Caesar does not.

Despite its limitations, America’s Best Idea stands as a compelling progressive tribute to the Madisonian tradition and its vision of religious liberty. Balmer’s greatest strength lies in his passionate and historically informed defense of the First Amendment as a civic and theological breakthrough, one that has allowed an astonishing diversity of religious communities not merely to survive, but to flourish. In an era when “religious pluralism” can often sound like a platitude, Balmer roots the phrase in real historical struggle, making clear just how hard-won (and how uniquely American) this achievement truly is. His narrative reminds readers that the separation of church and state was not designed to diminish faith, but to preserve its integrity and safeguard public life from religious domination. While reasonable people may disagree over how this principle has been interpreted or applied over time, Balmer makes a compelling case that our church-state separation truly is one of America’s best ideas.

Another academic year will bring a lot of debate about the nature of debate on college campuses. It is tempting to say that if the First Amendment is the gold standard of public debate, why not import it wholesale into the university, even if the institution is private and beyond the Amendment’s formal reach? In fact, enthusiasm for applying the modern First Amendment in full to the campus is the position of much of the classical liberal right, because they see it as the way to protect conservative dissenters from left-wing university bureaucrats. Yet the fit between the modern First Amendment and the university as originally conceived by classical liberals is far from perfect. A university is an institution for finding truth by reason. But modern First Amendment doctrine is a charter for expression, protecting speech and even conduct with little, if any, rational content.

Moreover, the First Amendment protects not only speech but also assembly. That guarantee is aimed less at truth-seeking than at collective action. It empowers citizens peacefully to organize and press their government to change policy. The ideal university, by contrast, should resist any pressure unrelated to truth. An idea does not become truer because many people gather to demand its adoption. Moreover, given their role as facilitators of reasoned discourse, universities should not be adopting political or cultural positions as institutions.

Thus, even if public universities are bound by modern First Amendment case law, private universities should not sign on. Of course, they should model an epistemic openness in which all reasoned arguments are welcome and encouraged. They may also need to impose institutional constraints on themselves to make sure that the unsettling ideas are heard, mandating neutral and unbiased tribunals to protect speech and inquiry. Judicial review thus is a legal idea that may have some lessons even outside the public university context. Building on that old idea rather than on the modern First Amendment may be the better way to protect dissenters while still upholding the classical ideal of the university.

The focus of the university on discovering truth through reason links the institution from its growth as a medieval foundation for disciplined disputation to the modern research center of today. At Bologna and Paris, the first universities, theses were stated, critiqued, and then defended by reasons. The Enlightenment sometimes redirected that method toward empirical inquiry but preserved the same architecture of truth-seeking. Conclusions were based on evidence and could be disputed based on better evidence. Modern research institutions continued this tradition and added new safeguards such as academic freedom and tenure that are designed to secure independence from faction and fashion.

The university ideal thus has remained that of a social technology for the discovery of knowledge. Sadly, the ideal is not always honored. Ideological monocultures can dull reason’s blade. But when challenged politically, at least, universities never tire of aligning themselves with their proud tradition of preserving epistemic openness bound by reason. It remains their best argument for independence from the threats of politics.

The free speech regime at the time of the Framing likely better comports with that university ideal because speech had to be an exercise in reasoned persuasion to gain protection. The point appears beneath the surface of state charters: Pennsylvania in 1790 guaranteed “the free communication of thoughts and opinions” and allowed citizens to “freely speak, write and print on any subject,” while making them “responsible for the abuse of that liberty.” That text both ties speech to the exchange of reasons and appears to draw a line at non-communicative abuse. Johnson’s influential eighteenth-century dictionary defined “speech” as “the power of expressing thoughts by vocal words,” thus framing it as an instrument of rational expression. Jefferson stated in the Virginia Statute for Religious Freedom that citizens are “free to profess, and by argument to maintain, their opinion in matters of religion”—again, the vocabulary of argument and persuasion rather than brute verbal force. Consistent with this view, states maintained and enacted laws punishing profane cursing, blasphemy, and kindred offenses in the 1790s and early republic—Massachusetts’s “Act to Prevent Profane Cursing and Swearing” in 1798 is one example. Thus, at the time of the Framing speech was prized, but as an instrument in the service of reason. When speech departed from reasoned persuasion, it lost its protection.

Universities would have spared themselves a great deal of grief with a simple rule against political assemblies and demonstrations so long as it was rigorously enforced against everyone.

Modern doctrine, however, has entirely pivoted from “reasoned persuasion” to a broader ideal of expressive autonomy. One inflection point was Justice John Marshall Harlan’s opinion in Cohen v. California. Paul Cohen had been convicted for wearing a jacket reading “F__- the Draft” in a courthouse corridor. But Harlan refused to let the state regulate speech on the basis of its vulgarity. He emphasized that expression carries both a “cognitive” and an “emotive” message and that the Constitution protects the latter as part of how citizens communicate meaning. Because Cohen’s expletive was not obscene, not directed at a particular person, and not likely to provoke a fight, the state’s interest in decorum yielded to a principle of tolerating offense in the name of free expression. In short, Cohen decoupled protection from the provision of reasons and anchored it instead in a robust commitment to expressive freedom, even when the mode of expression may even retard rational argument.

After Cohen, the Court moved further from reason as the touchstone of free speech. First, “fighting words” category shrank. Second, incitement was narrowed to advocacy intended and likely to produce imminent lawless action. Third, offense to sensibilities, however profound, did not suffice to suppress speech (Hustler Magazine, Inc. v. Falwell, Snyder v. Phelps). The Court also protected symbolic acts like flag burning (Texas v. Johnson). The governing tests for free speech now turn on such matters as content and viewpoint neutrality and imminence of violence, not on whether speech is connected to public reason. That shift has yielded a First Amendment regime that is capacious, but indifferent to a speech’s rational quality. It gives the widest berth to expression, including that made solely for shock value, but at the cost of abandoning the requirement that the speech display even a modicum of reason.

Public universities are thus probably stuck with having to accept expressive self-fulfillment as the mandate they need to follow. Even public universities, however, can use time, place and manner regulations to make sure that this kind of expression does not obstruct their core business, whether conducted by their own teachers or outside speakers. But private universities need not accept the modern view. They should instead use the older First Amendment paradigm because it better roots the right to speech in the right to reason to gain the truth. Thus, universities should provide protection for any speech that attempts to reason under a broad definition of what reason is. Reasoned persuasion can take the form of dissent against the vast weight of opinion and authority. But reasoned persuasion does not consist in insults, fighting words, and personal invective. 

To be sure, as in any free speech regime, there may be reason to distrust the administration in making ideologically neutral decisions about what speech is protected under the rules employed. But this is an institutional problem, not a conceptual one. Universities should create tribunals on the model of judicial review to resolve disputes about the boundaries of their rules that are composed of neutral arbiters. Distinguished alumni, particularly lawyers, of diverse viewpoints might be appointed arbiters. And here one should be relatively sanguine about their decisions. For instance, whatever one thinks of the current Supreme Court’s First Amendment doctrine, its application to parties of widely varying ideologies seems eminently fair.

Universities, unlike the government, also possess an obligation to facilitate debate and conversations between different reasoned positions. The First Amendment protects negative rights, preventing the government from interfering with speech, but not requiring it to aid in building knowledge. But the truth-seeking function of the university requires it to facilitate and encourage debate aimed at discovering reality. Sadly, because of their ideological monoculture many universities fail to do so. My own law school even took money from a well-meaning donor who wanted the expression of the diversity of views but created forums that lacked them.

Providing students a fundamental right to assemble or demonstrate, by contrast, discourages the kind of reasoned speech essential to free inquiry. The right of assembly in our Constitution was not about reasoned persuasion but instead protected the right of the people to peacefully assemble to press for the redress of their grievances. Founding-era texts treat assembly as the people’s right to gather in order to act politically—to consult, instruct representatives, and petition. Massachusetts’s 1780 constitution provides an example: citizens may “assemble to consult upon the common good; give instructions to their representatives; and … request … redress” by address, petition, or remonstrance. Pennsylvania’s 1776 declaration uses the same similar terms such as “assemble,” “consult,” “instruct,” and “apply,” making clear that the right protects coordinated political pressure in a lawful, orderly form.

The university, however, is not a political institution, and neither its students nor its faculty are its citizens. Both have freely chosen any particular university in a market of higher education and, if unhappy, can go elsewhere to one of its many competitors. Reason, not pressure, should govern the relations of all members of the university, whether the issue is a political or moral one outside the university or one of governance within.

Thus, universities should not permit demonstrations for or against speakers or causes on university campuses. They should certainly not allow, as my university did, the erection of structures to make some political point. Building improvised structures may be a useful skill but it is unrelated to the university’s business and may obstruct it. Universities would have spared themselves a great deal of grief with a simple rule against political assemblies and demonstrations so long as it was rigorously enforced against everyone.

The university secures its authority not by importing the First Amendment’s modern, autonomy-maximizing sweep, but by reclaiming the older freedom that privileges reasoned persuasion. Its charter is to find truth through reason, not protect expression as a means of personal fulfilment. Its objective requires safeguards for any good-faith attempt at reasoning but excludes individual insults and mob pressure. Protect reasons, not rage. The university can then enjoy the freedom calibrated to its mission.

The guilty secret among students of American politics is that many of them—perhaps most—have not read The Federalist in its entirety. They may have been introduced to “Publius,” the nom de plume of Alexander Hamilton, James Madison, and John Jay, early in their studies, as undergraduates or even in high school. But the demands on the time and attention of both teachers and students to “cover” many things typically meant that only the “greatest hits” of the eighty-five essays were assigned and discussed. Sometimes the authors of introductory textbooks on American government will include pivotal essays such as No. 10 and No. 51 in an appendix, and editors of anthologies of primary sources may include as many as eight or ten numbers of The Federalist. The work is sampled more often than read as a coherent unity.

Even the editors of complete editions recognize that many of the essays will go unread. Clinton Rossiter, the editor of an inexpensive and popular 1961 edition under the inaccurate (but evidently unkillable) title The Federalist Papers—an edition refreshed, reissued, and (annoyingly) repaginated under the editorship of Charles Kesler a quarter century ago—had this to say in a “Note on Text”:

Those readers who do not have the energy and fixed purpose to make their way through the whole of The Federalist may wish to know that, by common consent of learned opinion, the following numbers are the cream of the eighty-five papers: 1, 2, 6, 9, 10, 14, 15, 16, 23, 37, 39, 47, 48, 49, 51, 62, 63, 70, 78, 84, 85 (ten by Hamilton, ten by Madison, one by Jay).

Those twenty-one essays, with perhaps a half dozen more besides, constituted my own introduction to Publius as a freshman in the 1970s. And when I began to teach American politics in the 1980s, this “cream” of The Federalist made up the essays I assigned—fewer in introductory courses, these and more in upper-level American political thought. In advanced courses also on Congress, the presidency, or the courts, I might home in on just a handful of essays, adding several more to the relevant few on Rossiter’s list.

True confession: I had been teaching for more than twenty-five years before I assigned The Federalist in its entirety to any class I taught—and it was only then that I finally read each and every one of them myself! That was in spring 2007, and concurrently with my class at Radford University, I blogged my way through all the essays for National Review’s Bench Memos page, with a short entry on each one. A decade later, at Princeton University, I teamed up with a visiting fellow to lead a noncredit weekly reading group through all the essays over the whole 2017–18 academic year.

Everyone who assigns even selections from The Federalist should have this book, and using it will be a spur to teach the work in its entirety, which would be all to the good.

I strongly recommend making the time to do this, and I wish I’d done it years earlier. For teacher and student alike, nothing beats reading the whole of The Federalist. In descending into its granular detail, one begins to see why these essays, written on the fly from October 1787 to May 1788 to urge first New Yorkers but ultimately Americans everywhere to ratify the new Constitution, have had unique staying power among all the contributions to the ratification debate. And with the work involved in grasping the nuances of Publius’s supple arguments, one also begins to ascend again to a bird’s-eye view of the whole series. Close study of this kind will lead you to see why Thomas Jefferson told his son-in-law in 1790, “Descending from theory to practice there is no better book than the Federalist.” 

And now has come into my hands a little book I wish I’d had many years ago, one that should quickly find a place in the library of all those who teach and study The Federalist. It is The Framework of the Federalist: Visualizing the Structure of the Argumentation, just out from St. Augustine’s Press. The author, Harvey Flaumenhaft, has been teaching for more than fifty years at St. John’s College, Annapolis, where The Federalist is part of the “great books” curriculum. Whether one calls his book a guide, a synopsis, or an analysis—each description would be accurate—The Framework of the Federalist is plainly the fruit of long and close study of all the essays. Eschewing the formal divisions of an outline into numbered and lettered parts and levels, Flaumenhaft moves back and forth from a high-level overview of the series and its major headings to finely detailed breakdowns of the structures of individual essays. The cycle of ascents and descents is not at all disorienting. Quite the opposite: frequent recurrence from detail to overview and back again keeps the reader oriented, as one would turn from compass and nearby visual landmark to a map one carries to be sure of one’s progress over a whole journey.

Instead of formal outline divisions, Flaumenhaft employs the visual technique of indenting successive levels of the argument, making sure as well that each page of the book is a self-contained unit of The Federalist as a whole. This requires him frequently to interject a signpost that “expanded detail on” some feature of the present page will be found on the next, with that descent followed by a renewed ascent after the detailed analysis has been unpacked. But Flaumenhaft’s strategy of making each page of his book a coherent unit has a remarkable synoptic effect. It provides, as his subtitle puts it, a visualization of the argument’s structure, and it is hard to convey its effectiveness without a visible sample. Here, for example, is how Flaumenhaft begins to break down Federalist #45, answering the concern that the new Constitution grants such a great mass of power that the sovereignty of states is in jeopardy:

And so on. Although Publius’s elegant prose is stripped away, and with it the full rhetorical richness of The Federalist’s case for the Constitution, it is fair to say that the entire argument of the series is present here in skeletal form, in a mere fifty pages. (Two appendices, a page tabulating the authorship of The Federalist and fourteen pages analytically formatting the Articles of Confederation, conclude the book. I should like to have seen a similar formatting of the unamended Constitution as well, and wonder why the author did not provide it.)

The publisher’s website tells us that this book is eighty pages in length, and measures eight and a half inches by eleven. That size may have been originally intended, but Flaumenhaft’s unique approach to visualizing the text’s structure required the enlargement of the pages and a consequent reduction of their number. The work’s 66 pages measure a full twelve inches a side in order to achieve the author’s intent. And still, in order to pack into each page every structural feature that belongs to it as a unit of the whole, the printers were obliged to employ 8-point type, which is a bit taxing for aging eyes like mine. The desired effect has been accomplished, however: Flaumenhaft has both distilled the essence of Publius’s argument and presented it in a series of text-images that can be grasped by the mind.

One perhaps unintended effect of this book is that it may give some readers the impression that Alexander Hamilton and his co-authors—but chiefly Hamilton, who conceived the series and wrote the majority—gave The Federalist an exact and predetermined design, in structure and in substance, that was carried out with precision and polish. But these eighty-five newspaper essays are not a Platonic dialogue, a treatise in analytical philosophy, or a leisurely legal commentary. They were furiously written exercises in advocacy in a newly independent country going through a political crisis. It is well known that Hamilton sketched, in the first essay, a six-part outline of the coming series; then, when he wrote the concluding essay some seven months later, he noted that only the first four parts had been systematically finished—but begged the reader to recognize that the final two parts had been miscellaneously accounted for along the way! All that being noted, however, Flaumenhaft’s analysis brings to light the care taken by Hamilton, Madison, and (yes, even) Jay to fashion rigorous arguments with moving parts that incline the reader strongly toward embracing the Constitution.

Aside from judicial precedents, nothing is more often cited than The Federalist in opinions of the Supreme Court, not to mention the lower federal courts. Unfortunately, the isolated sentences and phrases of Publius that wind up in judicial opinions are usually so abstracted from their context that the point-scoring achieved by them cannot always be trusted. Copies of The Framework of the Federalist should be on the shelves in every justice’s chambers to help guard against this failing. It is not only judges who forage for authority in The Federalist, of course; scholars frequently offer a specious reliance on Publius for their own agendas, sometimes quite innocently, thanks to their unfamiliarity with the whole.

But the primary beneficiaries of Flaumenhaft’s painstaking work will be teachers. Everyone who assigns even selections from The Federalist should have this book, and using it will be a spur to teach the work in its entirety, which would be all to the good. Teachers should want their students to have The Framework as well, though I can imagine some of them holding it close as their pedagogical secret weapon. 

As I turned Flaumenhaft’s meticulously crafted pages, one more thought occurred and recurred to me: that at a time when we hear much about the power of “artificial intelligence” to do analytical work for us, and even to write for us, here is a book that only a human intelligence could have produced. Only, that is, a real mind, dwelling with a work like The Federalist over a period of years, talking it over with students, and determined to learn not just about it but from it, could possibly have made such a thing as this. Students of our country’s Constitution, and the thought of its makers, are in Harvey Flaumenhaft’s debt.

During my brief stint as a Senate staffer decades ago, I would sometimes walk from the Senate office building into the Capitol itself. Virtually everyone—be they former anti-war and civil rights protesters, unreconstructed defenders of racial segregation, or purveyors of bizarre conspiracy theories—treated the place with reverence, dressing appropriately, speaking quietly, and obeying the many rules of decorum (such as no reading in the staff gallery). This, after all, was the cathedral of our civil religion. Years later, it continues to fill me with awe.

When hooligans ransacked the building in early 2021, I expected all members of Congress to be horrified by this assault on our nation’s sacred place. After all, this was a direct and violent attack on their institution. High time to defend that institution from angry mobs and the demagogues who urge them on. Time to reclaim some of the constitutional powers ceded to presidents, Republican and Democratic, in decades past. Yet this extraordinary moment quickly passed, leaving almost no institutional imprint.

We could not expect a party dominated by Donald Trump to favor limits on presidential power, at least as long as he might hold office. But what about the Democrats? They had majorities in both houses in the 117th Congress and managed to pass several important pieces of legislation. But none imposed significant restraints on presidents.

In late 2020, Bob Bauer, President Obama’s White House Counsel, and Jack Goldsmith, an eminent Harvard Law professor who had served as George W. Bush’s second head of the Office of Legal Counsel, published After Trump: Reconstructing the Presidency. They noted that during his first term, Trump had

operated the presidency in ways that defied widely held assumptions about how a president might use and abuse the powers of the office. … His words and actions exposed the presidency’s vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability. Trump was not the first president to raise these dangers, obviously, but he did so unlike any of his predecessors.

Bauer and Goldsmith offered over fifty proposals to constrain such abuse of authority, ranging from ethics rules to control over the Justice Department, from vacancies and civil service protection to pardons and delegation of emergency power. With but one exception, the Democrats who controlled Congress for two years ignored them. The 123 statutes that allow a president to exercise “emergency” powers—including the International Emergency Economic Powers Act of 1977 that Trump used to impose steep tariffs on friends and foes alike—remain in place. Warned of the dangers of a rogue president, Democrats in Congress devoted their efforts to enacting the program of a president from their own party.

One might have expected conservatives to show more respect for tradition, for restraints on executive power, and more disdain for overwrought rhetoric.

As Philip Wallach has shown, the current Congress has been even less willing to protect its institutional prerogatives than those in the past. The Trump administration has refused to enforce laws recently enacted by Congress. It has usurped Congress’s authority to tax and spend. Congress has routinely confirmed nominees who obviously lack the expertise, integrity, and credibility required of the office they seek to fill. It has ceded oversight of agencies’ performance to an ill-defined collection of young tech bros with little understanding of how government bureaucracies differ from those in the private realm. The fact that the official name of the only significant legislative accomplishment of the current Congress is “One Big Beautiful Bill” indicates how undignified and unserious the institution has become.

Wallach explores the question of whether Congress can recover from this “decrepitude” and become, if not the “first branch of government,” then at least a powerful counterweight to the presidency. He notes that during previous periods of presidential ascendancy, Congress did mount substantial comebacks. The presidencies of Theodore Roosevelt and Woodrow Wilson were followed by nearly two decades of congressional institutionalization and assertion. If Franklin Roosevelt dominated Congress during his first term in office, that was no longer true by his second (or third or fourth). The “imperial presidencies” of Lyndon Johnson and Richard Nixon were the catalyst for congressional reforms that produced a surge of legislative activism. The cyclical nature of congressional organization and activity was captured by the title of James Sundquist’s masterful book, The Decline and Resurgence of Congress.

Our Constitution, after all, does not count on altruism or virtue to protect separation of powers, but rather expects “ambition to counteract ambition”: “the interest of the man must be connected with the constitutional rights of the place.” There is no denying that most members of the House and Senate are ambitious. So in the long run, won’t they find it in their interest to protect the rights, powers, and responsibilities of their institutions? Perhaps, but we know what happens to all of us in the long run.

One could argue that Congress’s current dysfunction is the product of two unusual and possibly temporary features of American politics: partisan polarization coupled with the narrow and short-lived majorities each party has held in the House and Senate. Bipartisan majorities on major issues are hard to come by, so each party rushes to jam through its program in unwieldy omnibus bills before it loses the next election. Each hopes that this will finally be the year and these will finally be the issues that produce a partisan realignment and a permanent majority. Until that day comes, party loyalty will remain paramount, even among members who have serious doubts about the institutional and policy damage it does. As Daryl Levinson and Richard Pildes put it, “separation of parties” has replaced separation of powers.

Compounding this political problem is the federal government’s fiscal plight. In a time of peace and prosperity, we are running up huge, unsustainable debt. Since addressing this problem will require both raising taxes and cutting spending, neither party is willing even to admit the extent of the rapidly looming threat. Budgeting—the central task of Congress—becomes an endless game of evasion and obfuscation.

Perhaps Congress can revert to “regular order”—passing appropriations bills before the beginning of the fiscal year, reauthorizing programs on schedule, conducting serious oversight hearings, taking a hard look at the qualifications of nominees, applying pressure to presidents who ignore their laws, and allowing major legislation to go through the committee process and floor debate rather than being stuffed into gargantuan reconciliation bills—once one of the parties attains a comfortable and stable level of public support. Then again, maybe not. For there are other, equally substantial obstacles Congress must overcome in order to avoid “decrepitude.”

A central feature of a legislative body not dominated by parties is the gap between individual and collective responsibility. In the US, legislatures at both the state and national levels must put together diverse majorities in each of two houses—and even super-majorities in the US Senate. For such legislation, those in the majority can take credit once they return to their constituencies. But often it is more attractive to take credit for refusing to join a majority that endorses items unpopular among one’s general election or primary constituency. As Richard Fenno put it many years ago, members of Congress often run for Congress by running against Congress: “Reelect me so I can protect you from the 534 crooks up there.” Especially since the 1970s, running as an “outsider” has been a popular strategy, even among congressional veterans.

Social media did not create this dynamic, but it certainly exacerbated it. Today, media mavens such as Alexandria Ocasio-Cortez, Matt Gaetz, and Marjorie Taylor Greene can attract far more public attention than the old “whales” of the Senate or “committee barons” of the House ever could—or wanted to. For this growing breed, negotiating and producing legislation is not just a distraction, but a threat to their image. Once the iron grip of partisan necessity begins to relax, the hazards of policy individualism will loom large, as they did in the late 1970s. 

Only now that centripetal force will be even stronger, due not just to social media, but to a phenomenon explored by Yuval Levin and Hugh Heclo: the broader cultural decline of institutional loyalty. Strong, resilient institutions, Heclo explains, establish not just a set of rules, but an ethos. They are, as Levin emphasizes, formative. They inculcate a strong sense of how one is expected to behave within this institution. In vibrant institutions, veterans pass this ethos along to novices—and impose sanctions on those who fail to conform.

Having seldom encountered them, our students have a hard time envisioning such institutions. Levin notes that these days “we don’t think of our institutions as formative but as performative,” most evident “when the presidency and Congress are just stages for political performance art.” But we need only to look back a few decades to discover a Congress that not only followed its own rules, but imposed a powerful ethos on members from different regions, parties, temperaments, interests, and political views.

The more visible political conflict within an institution, the less the public trusts it. And Congress is the most transparent branch of government.

Descriptions of the House and Senate from the late 1930s through the early 1970s by Donald Matthews, Ralph Huitt, Richard Fenno, Nelson Polsby, and others provide a wonderful picture of the informal norms that were passed from generation to generation: seniority, apprenticeship, specialization, reciprocity, civility, restrained partisanship, and institutional pride. “Be a work horse, not a show horse.” Liberals chafed under these norms more than conservatives, and often for good reason, especially on civil rights matters. Eventually, the liberal Democratic Study Group came to dominate the Democratic caucuses at a time when Democrats dominated Congress. The norms and constraints weakened as Baby Boomers and Watergate Babies took over.

Just as important (and more surprising) is the extent to which conservative Republicans, led by Newt Gingrich, went even further in denigrating Congress, its members, its norms, and its guiding ethos. One might have expected conservatives to show more respect for tradition, for restraints on executive power and policy individualism, and more disdain for overwrought rhetoric. But no—just the opposite.

As Wallach has explained in a 2020 paper, Republicans emerged from the political wilderness in 1994 with a deep antipathy toward Congress. They “took an almost punitive attitude toward the First Branch that they now found themselves controlling. They were determined to root out petty corruption, but more fundamentally their agenda was about cutting Congress down to size.” Thus began their love affair with presidentialism, which grew ever-stronger once the party remade itself as the instrument of angry populism. Democrats were once the party of insurgencies, iconoclasts, and norm-breakers. Now the GOP is the preeminent anti-institutional party.

The biggest question before us today is whether the anti-institutional forces we see operating in Congress are the result of a concatenation of temporary forces or the inevitable working out of American democracy and individualism. Little-d democrats, Tocqueville explained, are allergic to forms and formalities. They want their favorite policies, and they want them now. For better or for worse, they distrust career politicians. They mistakenly believe that politics and policy are simple, and that disagreement is a sign of corruption. They are, to use Jonathan Rauch’s clever term, “politiphobes.” The more visible political conflict within an institution, the less the public trusts it. And Congress is the most transparent branch of government.

As unpopular as it may be to admit, Congress performed best when it managed to remain, to some degree, removed from public observation and current opinion. Closed committee mark-ups and quiet negotiations among party and committee leaders can provide the degree of insulation that Madison considered essential for wise legislation. Except in a few corners of congressional activity—most notably its intelligence committees—modern communications have eviscerated that insulation. 

Can Wallach and other thoughtful people help Congress escape from “decrepitude”? I certainly hope so and have learned never to bet against American revivals. But I am old enough to doubt that I will live to see yet another resurgence of Congress. For the foreseeable future, the political and cultural deck is stacked against it.

Even decades after her premiership, and despite vicious criticisms from both the left and right of the political spectrum, Lady Margaret Thatcher remains a dominant figure in Britain’s political imagination. The centenary of her birth has been marked by a festival, an academic symposium, and numerous new books. The two that have particularly stood out to me, so far, are Terrence Casey’s Forging the Iron Lady (which I have previously reviewed for this online magazine), focused on Lady Thatcher’s years before she became prime minister, and now Peter Just’s, Margaret Thatcher: Life After Downing Street, focused on Thacher’s years after her time as prime minister. Together, these studies mark the bookends of Thatcher’s political career.

Just’s book is on, as is stated in the subtitle, Thatcher’s life after Downing Street; that is, from 1990 to her death in 2013. It is the first full-length examination of this period of her life, which, as Just writes, is “under-researched and largely misunderstood, if not actively misrepresented.” Just has achieved a true reassessment through thorough research—the book is erudite and full of fascinating quotes from people who worked with Thatcher, met her, and wrote about her. These provide a kind of insider’s view, and readers of the book receive a glimpse of what it would have been like to be on the receiving end of a Thatcher talk, grilling, or a handbagging. 

One prominent misrepresentation of Lady Thatcher in her post-premiership years is that she was permanently unhappy. Just makes a strong case that this is not true and that Lady Thatcher’s premier emerita years ought to be viewed more positively. Certainly, as Just notes, Thatcher found it difficult to transition from being prime minister to a backbench Member of Parliament. Thatcher recalled, “I remember hearing when the tanks had gone into Vilnius. I kind of leapt up and dialled the telephone. Then I realised it was no longer me anymore.”

Thatcher’s entire career illustrates that substance is important, but how you argue for your beliefs and how you present them is paramount.

Just provides us with some tools to study Lady Thatcher after her time in 10 Downing Street, as well as frameworks and categories to enable our evaluation. He frames the book around Thatcher’s private life, public life, political life, her work, philosophy, party, policy, performance, and her legacy. In addition, he provides us with categories for this period of her life. From 1990 until 2002, he refers to these as Lady Thatcher’s “siren” years. From 2002 to 2013, the year of her death, he calls these Thatcher’s “symbol” years. In her “siren” years, Thatcher was active in the political world on topics such as the “European Union, the former Yugoslavia, General Pinochet, and Hong Kong and China.” Moreover, the “symbol” years were when her presence or support could be just as powerful as when she was delivering commanding speeches across the world. Just recounts the time when Thacher attended President Reagan’s 80th birthday party, where she “received two standing ovations,” and as Just remarks, “one of those standing ovations was the longest of the night,” as she was the party’s “superstar.”

Another useful categorization that is utilized in the book is “between Margaret Thatcher the person and Margaret Thatcher the persona.” Just was quick to note that “when Lady Thatcher was playing the character that was Margaret Thatcher, she was true to herself.” He also added that “her performance was authentic and was played with conviction. The character that was Margaret Thatcher was simply the dramatic persona that gave voice to Margaret Thatcher’s beliefs and illuminated her character.” I would highlight here the word dramatic. Just claims that “the character that was Margaret Thatcher, and the way Lady Thatcher played her after Downing Street, was crucial to her legacy.” Why is this, according to Just? He argues that “it helps to explain why, in her centenary year, she persists in British political consciousness, arguably as potent now as an idea as she was as a person between 1979 and 1990” and we must “recognise that, as important as what Lady Thatcher did after No. 10 was the way she did it.” This is because “there’s as much showbusiness as ideology in her performance.” Indeed, this is quite true; substance is important, but how you argue for your beliefs and how you present them is paramount.

Lady Thatcher is fascinating as a political figure in her own right, but her career also teaches us broader lessons about the nature of statesmanship. To name just one example, Just’s treatment of her time after Number 10 raises the question of what other British prime ministers ought to do after leaving office. The same question applies to American presidents or any politician who has reached the top of the “greasy pole,” as Benjamin Disraeli said on becoming prime minister himself. What should one do when one has to slide back down the greasy pole?

There are multiple and overlapping options for a post-greasy pole politician. Should they heed the Roman general, Cincinnatus, and go back to the plow, or return to Mount Vernon, like George Washington? Should one engage in philanthropy or establish a center or foundation, like Jimmy Carter? Should one stay politically active like John Quincy Adams did in the House of Representatives? Should one take up a hobby such as painting, like George W. Bush and Sir Winston Churchill? Or go and earn a significant amount of income from speaking engagements like Bill Clinton and Sir Tony Blair?

This question of what a post-term politician should do and what they do, in the case of Lady Thatcher, was one of the most interesting aspects of the book. Nevertheless, Just could have made the lessons that we can draw from Lady Thatcher’s emerita years more explicit.

What, then, did Lady Thatcher do? We can garner from Just’s books that Thatcher did most of these things, except the painting. She set up the Margaret Thatcher Foundation and wrote two volumes of memoirs: The Downing Street Years, which was published in 1993, and The Path to Power two years later. The latter was much more Burkean in the sense that Thatcher did not just look backwards, but also expressed her views on the current policy situation. Most definitely, throughout the remainder of her emerita years, she remained active in the political world, giving speeches around the world and expressing her views back at home.

Just notes that “Lady Thatcher evangelised on Thatcherism’s behalf.” As he writes, it was a “symbol in the UK and also around the world,” and that “Lady Thatcher frequently spoke about her ‘ism’ on her visits abroad, as well as in the UK.” Just asks the question, “But what was Thatcherism?” Answering this question was going to be an immense task, as whole books can be and have been written trying to provide answers to this very question. Unfortunately, this was one of the areas of the work that was quite slim; of course, the book is not on political theory, yet this section could have been thickened up. Just writes about Thatcher and her “ism” that “sometimes she seemed to suggest it was a leadership type or personal style,” and at “other times, Lady Thatcher spoke of it as if it were a philosophy.” Just added that “she did not need to use the word to emphasise its continuing significance.”

All of this got me intrigued, but Just did not try to unpack this. All the same, he does go on to demonstrate the influence of Thatcherism and Lady Thatcher, as President George H. W. Bush put it in 1991, as a “prophet and crusader.” It would have been interesting for Just to tackle Thatcherism’s continuing significance and relate it to the debate within the conservative movement, both within the United Kingdom and the United States. Despite these minor shortcomings, Margaret Thatcher: Life After Downing Street is a stimulating book, and readers will learn a great deal from it about Lady Thatcher’s character, her policies, and her political priorities and interests in her post-premiership years. We can learn what the path to post-power can be like for a statesman of Lady Thatcher’s eminence.

If bloated, ineffectual, unconstitutional government is your bête noire, the start of the second Trump administration was a heady time. You were promised $2 trillion in spending cuts, and Elon Musk’s Department of Government Efficiency (DOGE) seemed to be running rampant with its chainsaw. One of the administration’s prime targets was the US Department of Education, which over its 45-year existence has been a poster child for ineffectiveness, incompetence, and unconstitutionality. The administration eliminated nearly half of its workforce through voluntary separation deals and layoffs, and Trump issued an executive order for the Secretary of Education “to take all necessary steps to facilitate the closure of the Department of Education.” Crucially, though, this was to be done “while ensuring the effective and uninterrupted delivery of services, programs, and benefits.”

Unfortunately, those high-energy days have seemingly ended, at least when it comes to cuts. Musk is gone from DOGE, which by its own reckoning has achieved savings of only around $200 billion, a tenth of the original goal. For the Education Department, while the US Supreme Court preserved its firings, momentum for deeper cuts appears to have waned. That might be because some cuts, such as for research contracts, are caught in litigation. The administration might also believe it has hit the constitutional limit on what it can ax unilaterally. Finally, it seems to a significant degree that Trump wants to control schools from Washington.

The prospects for eliminating the department, at least in the next few years, are poor, and that is largely because we are past what Trump can, or at least will, do himself. The president arguably can refuse to do things he believes are unconstitutional, even if passed by Congress, signed by previous presidents, and upheld by courts, but Trump has not made that case for ending the department that the Constitution gives no authority to exist. Trump likely believes that Congress created it and the programs it runs, and Congress must end them. Secretary of Education Linda McMahon has said that explicitly. Consistent with that, the administration has cut staff and contracts, but not outright ended major programs and offices.

So the ball is in Congress’s court. Unfortunately, there has not been much energy there for ending the department. This could just reflect the fact that Congress’s overwhelming focus, since Trump’s inauguration, has been on the One Big Beautiful Bill. Perhaps efforts to eliminate the department will rev up now that that is in the books.

There are currently several bills in the House and Senate aimed at ending the department, but so far none have gotten a groundswell of support. Two are just messaging: Kentucky Rep. Thomas Massie (R) and Sen. Rand Paul (R) have introduced legislation simply saying, “The Department of Education shall terminate on December 31, 2026.” Alas, ending the department is not that simple. Over the years, Congress has tasked the department with running numerous programs, from Pell Grants to 21st Century Community Learning Centers, and given it such responsibilities as investigating allegations of civil rights violations by schools receiving federal funds. Those jobs would not just disappear were the department to end. Congress would either have to terminate them or send them elsewhere.

The other pieces of legislation would do those things. Sen. Mike Rounds (R-SD) produced a bill, the Returning Education to Our States Act, soon after Trump’s election. It would reassign education jobs to other federal departments and agencies, for instance, moving Office for Civil Rights responsibilities to the Department of Justice, while Federal Student Aid would be sent to the Treasury. It would also block-grant some monies. It has two cosponsors. 

The goal to eliminate the department will not be reached until the public understands a basic reality: that something sounds good—more education!—does not mean it is good.

In the House, there are a handful of bills, including the States’ Education Reclamation Act of 2025 from Rep. David Rouzer (R-NC) and a bill with no title from Rep. Barry Moore (R-AL). Like Rounds’s bill, these pieces of legislation are typically a mix of block-granting and moving responsibilities to other agencies. So far, Rouzer’s bill has the most cosponsors with 12.

Unfortunately, though many Republicans talk a good game about getting Washington out of education, they rarely act. That status quo remains unchanged. Even while Trump, the party’s undisputed leader, has spoken repeatedly about ending the department, the Senate Appropriations Committee voted 26 to 3 at the end of July to give the department $79 billion in discretionary funds for FY 2026, more than $12 billion higher than what Trump proposed. The committee also voted to keep programs Trump would have eliminated, such as TRIO and English Language Learner initiatives.

The root disincentive to act is likely that Americans are still inclined to think of education as a near-unqualified good. Members of Congress might know that the department is unconstitutional and incompetent, and the programs are ineffective, but when people hear that money is being cut for education, or an entire education department is targeted, they are aghast. They think education is good, so of course we should not cut it. Driving home all the negative impacts of federal “help”—stultifying rules, higher college costs, dangerous centralization—is harder to do than scaring people with the prospect of loss.

That said, the dangers of federal power were more clear in the recent past. What likely drove Trump’s emphasis on ending the department was anger among his supporters over prolonged school closures during the Covid-19 pandemic, and masking and vaxxing requirements when they reopened. Many believed that the country’s behemoth teacher unions—the National Education Association and American Federation of Teachers—had far too much influence in Washington keeping schools closed. Add this to a broader rejection of “expert” authority as Covid guidance whipsawed and the pandemic lingered, and the Education Department made for an attractive target. 

Had the crusade to end the department commenced in 2021, as Covid loomed over everything, public anger might have been sufficient to drive serious congressional action. But when the epidemic petered out, widespread frustration with unresponsive public schools and agencies also abated. 

The best opportunity to eliminate the department may have come even earlier. The No Child Left Behind Act of 2002 (NCLB) gave Washington major power over public schooling. It mandated state standards in math, reading, and science; state standardized tests; and all students making “adequate yearly progress” to full proficiency on state tests by 2014. Schools that failed to make sufficient progress faced a cascade of interventions and punishments. Over time, this generated widespread aggravation over rigid rules and the reduction of education to standardized test scores. 

Resentment of federal intervention rose to a fever pitch after the 2009 Great Recession “stimulus” bill gave the Secretary of Education authority over $4.35 billion, which the Obama Administration used to create the Race to the Top initiative. States competed for shares of the money, including by adopting a specific set of national curricular standards and tests: the Common Core State Standards and attendant, federally selected tests. 

When districts started implementing the Core, which, among many problems, featured infamously convoluted ways to solve basic math problems, a national outcry ensued. Amidst this, the Obama Administration declared that states could get waivers out of NCLB’s 2014 full proficiency deadline, which no state was close to meeting. In exchange, states would, among other things, have to assess teachers using their students’ standardized test scores. This created a rare political confluence: teacher unions joined libertarians and small-government conservatives in opposing hyper-intensive federal micromanagement. The result was that in 2015 Congress replaced NCLB with the Every Student Succeeds Act, which ended the adequate yearly progress “accountability” lynchpin and forbade Washington from mandating adoption of the Common Core. 

The federal government had actually relinquished significant power. It was a rare and wonderful thing, but it also significantly reduced aggravation about federal education intrusion.

Perhaps Trump is trying to engineer such widespread anger again, by using federal funding to pressure schools and colleges to adopt his favored polices, including ending diversity, equity, and inclusion initiatives, participation of transgender female athletes in girls’ sports, and more. It seems unlikely, however, that Trump is being heavy-handed to poison people against the department. That would be some serious three-dimensional chess, and Trump seems to take pleasure in jawboning elite colleges like Harvard, Columbia, and UCLA, as well as blue states and school districts. This is another reason to think that at least the near-term prospects for ending the department are poor: Trump appears to like federal influence.

The Trump administration has catalyzed a national discussion about eliminating the US Department of Education, and that alone is progress. But the goal will not be reached until the public understands a basic reality: that something sounds good—more education!—does not mean it is good. Maybe Trump’s own, heavy-handed actions will help drive that message home, but not quickly enough to end the department in the next few years.