Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
A good explanation of the Clinton-Trump clash we are living through, and of Trump’s having taken the Republican Party by storm, is in Eric Posner and Adrian Vermeule’s 2010 brief for executive supremacy as the way we do constitutionalism. The Posner-Vermeule thesis in The Executive Unbound is that the Madisonian philosophy of separation of powers as a constraint on the presidency no longer exists, and good riddance. The more authoritative check on executive power, they say, is majority opinion and the fact that the President must face the voters every four years. This, and not Greg Weiner’s paean to Jemmy Madison, is the only source we have now for safe, effective, and informally limited government. Those wanting Madison on demand, Posner and Vermeule inform us, are whistling past the graveyard of a constitutionalism that no longer fits this American nation.
But is public opinion or democracy writ large capable of restraining an enthusiastic executive and sustaining a free society? What we are more likely to get is the politicization of virtually every corner of our lives and the magnifying intensity of every election contested. Commenting on the Posner-Vermeule thesis, Christopher DeMuth summarizes the forces that will emerge:
No doubt the concentration of power in the executive has prompted more intense public scrutiny of the president and political competition for the presidency, which in turn have disciplined the exercise of executive power. But the arrangement operates through politicization — the intrusion of politics into many hitherto private areas of life. It requires the public to be continuously attentive to political developments for the purpose of making an occasional, highly problematic decision — casting a vote every four years for one of a few presidential candidates, each one standing for a lengthy menu of policy positions in combination with a general philosophy and personal characteristics. . . . These circumstances surely contribute to the political pathologies of the age: bitter partisanship, extreme and simplistic formulations of policy questions, routine personal vilification of the president, and the “permanent campaign”. . . , all of them leading to popular disillusionment with our system of government.
DeMuth’s misgivings have been reflected in the 2016 presidential campaign, whose outcome we are repeatedly told will indelibly shape our future — will ruin or save the nation, as the case may be. We have, as it were, only one final chance to get America back on track.
DeMuth also touches the deeper problem, one that surely predates Trump versus Clinton, of our government and much of our politics turning on presidential elections whereby the victor has the authority to enact the mandate he received from the voters. To this we can couple what Senator Mike Lee (R-Utah) succinctly noted in National Review:
Whatever the merits of same-sex marriage, Common Core, amnesty for illegal immigrants, forcing Catholic nuns to buy contraception, or requiring high schools to open their girls’ bathrooms to teenage boys, the fact that all of these things recently became federal policy without ever receiving a vote in Congress represents a huge threat to American self-government. (emphasis in original)
Thus to presidential majorities is now joined the activist regulatory state, with some very intimate consequences.
We need a better practice of republicanism and for that we need to recover better thinking about majority rule—or rather the way in which majority opinion should be reflected in our institutions and our laws. We are surely not devoid of resources to help us think our way out of this predicament. However, we might need analogously to walk young Ted Boynton’s walk in Whit Stillman’s Barcelona. Boynton, seeking to understand his incessant failures with women, upon consulting the Old Testament, notes that “some of the advice was very tough.” Indeed. And things are never tougher than when we consult Willmoore Kendall’s scholarship on the constitutional morality that Publius elaborates in The Federalist Papers.
In his 1960 essay “The Two Majorities,” Kendall prescribes a painful cure that is as applicable to the perky postmodern of our age as it was to Progressive political scientists of Kendall’s. We must, he says, try on the morality that arises from majorities being restrained in our system by the whole of the people in the inter-branch competitive process, for it is this process that ensures that temporary or indulgent or weak majorities are weeded out. But note that Kendall, like Publius, says the majority will govern. That isn’t really a possibility that can be foreclosed.
Those majorities that are able to capture Congress, the executive, and the federal courts are those that turn the country in their direction, perhaps decisively reshaping it. Moreover, it is the interplay of the federal branches that protects minorities against having mandates shoved down their throats, because the majority will, in most situations, be compelled to bargain, compromise, and trade on certain policies in order to obtain its more dear policy objectives. Of course, narrow majorities among members of the Supreme Court or panels of regulators in executive branch agencies now frequently act apart from this deliberative process, the former through insisting that controversial accounts of unenumerated rights are to receive constitutional sanction, the latter by implementing federal statutes through an informal rule-making process outside of even the Administrative Procedure Act of 1946. If we followed Kendall’s method we would counteract both.
In rebutting modern political science orthodoxy and its negative emphasis on the anti-democratic Constitution, Kendall underscores that the aims of the Philadelphia Convention of 1787 were not to act against the principle of majority will but to build a republican order that would be governed by the people through deliberation and compromise. We might walk in their shoes, Kendall urges, and consider the problems they faced: schism within the country under the Articles of Confederation and the threat of breakaway states; mob rule in certain states that violated minority rights; and general crises of currency inflation and debt that threatened to strangle the political order in its infancy.
Holding the country together in those circumstances was an urgent problem. As Kendall shows, Publius did not respond by making war on majority rule in the name of preserving elitist, oligarchic principles, as legendary theorist Robert A. Dahl argues is embedded in the Constitution. More specifically, the aversion was not to majority rule as such, for surely they understood that in a republic the majority will have its way, but the more interesting question is in what way that will is to be reached, delineated, and enforced. Thus, the separation of powers, the federal government of enumerated powers, the equality of representation of the states in the U.S. Senate, the electoral college, the states’ power to set rules over voting and district maps in the House of Representatives—these are some of the most vital ways to form majority rule into the “deliberate sense of the people” such that majorities are ultimately engaged, shaped, limited, and informed by the whole of the represented people.
Thinking of deliberation in this way brings us to the diverse and extended republic of Federalist 10, with its clashing interests that challenge, or are supposed to challenge, unjust majorities by exposing their weaknesses and/or blocking their ability to shape the country. At the least, Kendall argues, those seeking drastic constitutional change are compelled by the oblique logic of Federalist 10 to wait in the “ante-room” before they are “sanctioned either by a constitutional amendment or by consensus among the three branches.” Our constitutional structure makes it difficult to reshape the vast commercial republic that is America. Another way of making this point, Kendall notes, is the argument in Federalist 64, which concerns itself with the Senate’s needing to provide a two-thirds concurrence to ratify any international treaty. Publius argues that the “good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.”
Even though Kendall is writing in 1960 about “The Two Majorities”—meaning the clashing representations of the two political branches of the federal government—he limns core political truths that connect with our self-government problem today. He had taken up his pen in response to the position advanced by the legendary scholar Robert A. Dahl, who argues in Preface to Democratic Theory (1956) that the only legitimate majority is the presidential majority, as expressed in quadrennial presidential elections, which grant the winners of these contests a national mandate to make policy. But is there such a thing as a national majority, one that simply floats coast-to- coast, somehow above or at least apart from the “structured communities” of legislative districts and states represented in Congress? What type of majority does Dahl speak of?, Kendall inquires.
To be sure, says Kendall, it does rise above parochial or more limited points of view found within a majority of congressional districts on spending, immigration, foreign policy, trade, entitlements, and other issues. These political communities are bounded, insular—which means that when arguments about national policy are made, they become arguments about something concrete and particular that is refracted through existing communities with various interests. The appeals made to a national majority necessarily exist apart from actual communities. We might ask if such a thing as a national community and its majority can even properly exist; or if what really emerges is a sentiment of how things should be ideally. Then of course the question becomes, whose ideals shall prevail?
The arguments made on behalf of the national community partake, Kendall observes, of ideals that have been formed by faculty opinion and more cosmopolitan sectors of society, and then amplified by media organs. Such appeals are then concretized and reduced to rules by those certified within the regulatory agencies. The President and the regulators in the federal bureaucracy are not in the position of congressional representatives, who are beset with arguments, interests, prejudices, of many varieties as they go about representing a particular place. Apparently the unlearned senators and representatives need to be taught and educated by the national majority, or what is really the same, in Kendall’s conception, elite opinion.
Considered from the perspective of the represented, though, how does one speak to a national constituency of the size, diversity, and complexity of America? Kendall observes that in the situation of a domineering presidential politics, the country must subscribe to the maxims or general statements of a candidate whose high-sounding principles commit the newly-elected President to pursue “mandate” politics fitting with the general tenor of the campaign that was waged or a new in-office campaign for a given policy.
We argue, it seems, about nothing in particular and about everything nationally but in sheer generalities. Do presidential majorities, having diminished the role of congressional majorities in the making of federal policy, acknowledge tradeoffs and the costs and benefits of policies in healthcare, education, or environmental policies? Or do these policies get placed within overall themes of compassion or inclusion or indifference to those without insurance for the purchase of healthcare; of equal outcomes or equal opportunity in education; and either favoring pollution or favoring economic growth in regulating greenhouse gases? It is the politics of “lofty objectives” somehow translated into policy but in the crudest of ways.
The surest way for us to arrive at a better way for the majority to govern is to recover congressional elections that are about something—shaped by communities of people who can argue with one another, and make a choice among themselves on what they are concretely prepared to favor, tolerate, or oppose. This decision takes the form of choosing a person who will represent the community and is accordingly authorized to deliberate on its behalf. These elections, Kendall notes, are the surest bridge we still have to the Founders’ Constitution. Thus congressional elections turn not only on policies but on fitness of character—that is, the virtue of the person who is to represent a community and deliberate on its behalf is of greater significance. The judgment of character made by those represented as to who should represent them, then, is the unstated premise of our institutions’ capacity to perform their constitutional functions. It is the virtue that our system requires to fulfill its constitutional end.
I hasten to add that Kendall did not lack for a sense of realism. He didn’t invent the term “flyover country” but Kendall might as well have. He makes the appropriate comparison and realistic judgment that as between presidential and congressional majorities, elite opinion and all its trappings rides with the presidency. In its stead, we get a media-driven politics with soundbite platitudes. Deliberation is something that happens inside federal agencies, participated in by government and corporate elites, and obnoxious activists. Put differently, these are the people who couldn’t live one day in a real town with a real job; they are the last bunch you would want to see at your neighborhood bbq. Their calling, as they see it, is to edify the dark recesses of opinion within insular American communities.
This put-upon group of Americans, for the most part—and this is why the two national parties have fallen into such disrepute—finds only virtual representation in Congress and is commanded by a federal rule-making apparatus composed of judicial and executive officials whose promulgations elude curtailment by Congress. What is needed is the authority to change the terms of the debate, terms that have in some respects not changed appreciably in the 50 years since Kendall’s paper was published. What type of country will we become and whose principles will dominate it through majority rule? Rather than teacher President and pupil Congress, we need a debate over what Kendall called the “destiny and perfection of America and of mankind,” and this, he added, ultimately amounts to a contest “between American conservatism and American liberalism” at its deepest level. One thing that must change is for conservatism to make real the principle of self government. Kendall’s scholarship on the deliberative nature of our institutions must be the cornerstone of that refurbished foundation.
 “The Two Majorities,” in Willmoore Kendall: Contra Mundum (University Press of America, 1994), pp. 202–227. In footnote 24 of the essay, Kendall cites as his authority Federalist 58, and its proposition that preventing the majority from having its way reverses “the fundamental principle of free government …” “It would no longer be the majority that would rule….” Similarly, Kendall highlights the words of Federalist 22 to the effect that the touchstone of republican government is “the sense of the majority shall prevail.”
 The Federalist, edited by George W. Carey, The Gideon Edition (Liberty Fund, 2001), “No. 9,” p. 39.
 “The Intensity Problem and Democratic Theory,” in Willmoore Kendall: Contra Mundum (University Press of America, 1994).
 The Federalist ), “No. 64,” p. 336.
 “The Two Majorities,” pp. 202–227.
 Ibid, pp. 223–227.
 Ibid, p. 225.