Originalism as Judicial Restraint

Unity is acting together even when we don't think alike. And one of the primary aims of the American Constitution is to support a democracy of those unified in diversity. Yuval Levin joins Mark Labberton to explore the precarious state of American constitutional life and the imbalance of power between the branches of the U.S. government. Drawing from his book America's Covenant, Levin argues that the Founders designed the Constitution above all to preserve unity in a divided society. Yet today, he warns, the imbalance of power—particularly the weakness of Congress and the rise of presidential authority—threatens democratic legitimacy. In this conversation, Levin reflects on originalism, the courts, Donald Trump's expanding influence, and the dangers of both passivity and autocracy. With clarity and urgency, he calls for renewed civic engagement and for Congress to reclaim its central role.

Episode Highlights

1. "Unity doesn't mean thinking alike. Unity means acting together. And the question for a modern political society is how do we act together when we don't think alike?"
2. "The biggest problem we have is that Congress is under-active, radically under-active and has turned itself into a spectator."
3. "The president is in charge of the executive branch, but the executive branch is not in charge of the American government."
4. "I am very concerned about this kind of Caesar-ism. I think it is very dangerous."
5. "What we're seeing is constitutional creep, where the president is pushing and nobody's pushing back, and only Congress can do it."
6. "I worry a lot about Donald Trump. But the reason I worry is because Congress isn't doing its job."
7. "The politics of an autocratic state is a politics of spectators, and we just cannot become spectators."
8. "All of us will find ourselves in the minority sooner or later."

Helpful Links and Resources

• America's Covenant: The Constitution and the Path to National Unity, by Yuval Levin
• American Enterprise Institute (Find Yuval Levin's current research and publications)
• *New York Times Opinion* – Yuval Levin's columns at the New York Times

About Yuval Levin

Yuval Levin is director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute (AEI), where he also holds the Beth and Ravenel Curry Chair in Public Policy. He is the founder and editor of National Affairs, senior editor of The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at The New York Times. He is the author of several books on political theory and public policy, most recently American Covenant: How the Constitution Unified Our Nation—and Could Again (Basic Books, 2024), which examines the U.S. Constitution through the lens of national unity in a divided society.

Show Notes

• Constitutional unity and division
• Yuval Levin summarizes America's Covenant as a reintroduction to the Constitution framed around the challenge of unity in diversity.
• "Unity doesn't mean thinking alike. Unity means acting together."
• The Constitution prioritizes bargaining, negotiation, and legitimacy over efficiency.
• Congress was designed as the "first branch" of government to embody pluralism and force compromise.
• The decline of Congress and rise of the presidency
• Levin argues Congress is radically under-active, ceding ground to presidents and courts.
• "The biggest problem we have is that Congress is under-active, radically under-active and has turned itself into a spectator."
• Excessive focus on the presidency erodes democratic legitimacy.
• Current frustrations stem from misunderstanding the system's design: it resists narrow majorities and forces broad coalitions.
• Courts, originalism, and the unitary executive
• Levin affirms he is an originalist: "a philosophy of judicial interpretation … a mode of self-restraint for judges."
• Supreme Court decisions in recent years repeatedly signal: "Congress, do your job."
• He outlines the unitary executive theory: the president controls the executive branch, but not the government as a whole.
• "The president is in charge of the executive branch, but the executive branch is not in charge of the American government."
• Trump's expanding power
• Levin warns of the growing push to centralize authority in the presidency.
• "I am very concerned about this kind of Caesar-ism. I think it is very dangerous."
• Trump's second term differs because restraints have vanished; his circle now encourages unrestrained executive action.
• Disruption of long-held norms has weakened trust in American institutions globally and domestically.
• Constitutional crisis vs. constitutional creep
• Levin distinguishes between "creep," "conflict," and "crisis."
• He argues the U.S. is experiencing constitutional creep: unchecked executive power without Congress pushing back.
• True crisis would involve direct defiance of the courts—something still possible but not yet realized.
• The role of citizens and civic responsibility
• Levin stresses the danger of passivity: "The politics of an autocratic state is a politics of spectators, and we just cannot become spectators."
• Citizens should keep writing to Congress, vote with clear expectations, and engage in local governance.
• State legislatures, though less visible, often function better than Congress today.
• Clear thinking itself, Levin suggests, is a moral act for a healthy republic.

Production Credits

Conversing is produced and distributed in partnership with Comment Magazine and Fuller Seminary.