A More Modern Constitution?

Richard Epstein*

Richard Epstein

Richard Epstein

The dreaded presidential showdown between Donald Trump and Hillary Clinton will spur many thoughtful people to rethink the structure of America’s basic political institutions. One notable proposal has been offered recently by Terry M. Moe and William G. Howell. Their recent column for Defining Ideas offers a summary of their book, Relic: How Our Constitution Undermines Effective Government—and Why We Need a More Powerful Presidency. Moe and Howell locate our current political malaise in the Founders’ decision, made some 229 years ago in a largely agrarian society, to vest a great deal of power in Congress, which explains why government is so dysfunctional today.

In their view, the fact that society has drastically changed since the time of the founders cries out for a more modern government and Constitution. Their proposal for a more efficient and effective system is to put the President at the center of today’s political ecosystem. No longer will the President only have the power to veto proposed legislation. Instead, the new regime will confer on the President the same kind of universal fast-track authority that is today reserved for international trade agreements. Once the President proposes legislation, each of the two Houses of Congress will have to respond within some pre-set time with an up-or-down simple majority vote. No amendments and no filibuster. Congress will of course retain its power to initiate legislation in the traditional fashion, subject to the usual rules on Presidential veto and overrides, but the President, Moe and Howell believe, will be able to break today’s legislative gridlock on key questions like immigration.

Moe and Howell misdiagnose the problem. They assume that the 1787 Constitution, as augmented by the Bill of Rights of 1791, is only suitable for a small agrarian country. But the philosophic foundations of our constitutional system were never so provincial; nor have the difficulties in governance that the founders identified diminished or transformed themselves over time. The framers understood that any government they put into place had to be strong enough to maintain a system of ordered liberty, but not so strong as to allow the nation to fall into tyranny. The most famous exposition of this point is Federalist 10 in which James Madison warned of the dangers of faction, which he defined as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Ironically, Moe and Howell make the same diagnosis of the current situation by repeatedly pointing out that Congress is hopelessly dominated by special interest politics, which in turn leads to awkward compromises and convoluted legislation.

They err, however, in thinking that presidents are immune to factional pressures because, Moe and Howell write, they “think in national terms about national problems.” All too often, factional interests influence the President’s national views on issues from healthcare to labor to banking. Moe and Howell point to the crude Obamacare concoction, which in 2010 the Democrats rammed through the House and Senate without a single Republican vote. Reverse the sequence of events, and allow the President to propose the legislation, and it becomes easier for an even more partisan piece of legislation to get through, so long as the Democrats hold simple majorities in both Houses. But if they did not, the simple Republican strategy would be to vote down every piece of legislation the President proposes until we are back to the current system in which all legislation begins in Congress, subject to presidential veto. This new proposed system will thus lead to one of two equilibrium positions. Either a partisan President gets all that he wants, or a determined Congress forces us back into the legislative pathologies that are rife today.

The latter is far more likely. Moe and Howell note that their position would apply to all appointments. But right now, the Constitution already gives this power to the President, subject to an up or down vote by the Congress for senior officials and judicial nominees. This allocation of powers makes sense because it is far easier for a president to vet an appointment than to craft legislation. But impasses will still occur when the stakes are high. For example, President Obama’s nomination of Merrick Garland for the vacant Supreme Court seat continues to be held in limbo in the Senate, given that the Republican majority is not prepared to cede a shift in power that makes the Court’s liberal wing ascendant. Moe and Howell’s proposal, however, could make the nomination system even more convoluted by requiring all presidential nominations to receive majority votes in both Houses of Congress, not just the Senate (as in the status quo). The current political divisions will thus just make it that much more difficult to overcome delay and compromise. There is no silver bullet to deal with deep political discord.

Nor is there any reason to think that adding to the strength of the President is the proper cure to our current national ills. The President is not just one person; his influence spreads over the entire executive branch—which is massively powerful already. Recently, President Obama has initiated serious abuses of power on immigration, has made a highly questionable decision to extend the prohibitions on sex discrimination contained in Title IX to cover cases of gender identity, has coerced highly dubious distributions and settlements of criminal and civil cases by the Departments of Treasury and Justice, and has countenancedconsistent abuse of power in the Consumer Finance Protection Bureau. None of these difficulties will be ameliorated, let alone solved, by giving the President the added power of fast-track legislative proposals.

Nor will the fast-track proposal make any sense in foreign affairs, as the negotiations over the Iran nuclear treaty suggest. The current law on the treaty power is a mess. The basic constitutional provision reads: The President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Unfortunately, no one quite knows which executive agreements count as treaties. This means that, today, the President can negotiate an executive accord without the consent of the Senate so long as he is prepared to take the risk that his successor might revoke that deal unilaterally, thus creating regrettable instability in foreign arrangements.

In addition, the President currently enjoys a high level of unilateral power in foreign affairs that goes beyond that given to him under the original constitutional design. The Supreme Court’s highly controversial 1936 decision in United States v. Curtis-Wright Export Corporation gave the President a well-nigh free hand in foreign affairs. That attitude was carried forward in the recent case of Zivotofsky v. Kerry, which, on a difficult point of constitutional construction, acquiesced in historical practice by allowing the Secretary of State to reject a congressional directive to list Jerusalem, Israel, as Zivotofsky’s place of birth on his passport. It is highly disputable whether increased presidential control over foreign affairs is preferable to the division of authority now written into the Constitution.

The uncertain prospects of constitutional fast-track stems, moreover, from a serious misreading of American constitutional history. Properly understood, much of the current angst over our system of divided government arises not because we continue to follow a 1787 Constitution, but for precisely the opposite reason. During the New Deal and afterwards, key features of that Constitution were junked when the Supreme Court yielded to pressures from the progressives to rewrite the Constitution to allow Progressives to advance their own political agenda. The simple truth, however, is that the Constitution (slavery to one side) that worked well in 1787 worked well for the next 150 years. As Robert Gordon showed, the greatest period of American growth was between 1870 and 1940, when (until 1937) classical liberal ideals of limited government flourishing.

Changed social circumstances have not rendered the framers’ constitutional design obsolete. If anything, the opposite is true. The old Constitution has worked better as society has become more complex. Just consider some of the features of the document that Moe and Howell don’t address in their article. Starting with matters of Congressional power, chiefly under the Commerce Clause, the original constitutional design called for all local matters to be regulated solely by state governments. These activities included manufacture, mining, agriculture, and all commerce (e.g. buses and taxis) that operated solely within one state. Yet at the same time, the federal power was available to prevent any one state from imposing barriers to free transportation and communication across state lines.

That is exactly the right division of power today, because the power to enter and exit puts states in competition with each other without allowing any state to destroy the American free trade zone. When the Supreme Court in 1937 first held that business activities inside the states could be regulated by the central government, two horrendous consequences followed. First, much more material was put on the Congressional plate, which in turn tended to overwhelm all three branches of the federal government. Second, the legislation that was passed was highly protectionist by promoting cartel behavior in labor, agriculture, transportation, and communications markets. Those moves were unsound in 1937 and they remain unsound nearly 80 years later.

The Constitution, then, protects us against some of the abuses of government power that make our system today so dysfunctional. Another example is New Deal jurisprudence, which violates the constitutional principle of separation of powers. The New Deal paved the way for the rise of independent administrative agencies that combined legislation and judicial powers in the same body, which in turn were given huge levels of deference by the courts to impose their will on the nation. Hence, the more complex legislative deals could be extended, often in strange ways, by administrative action that was not subject to any effective form of oversight. To give yet another example, the traditional protections that had previously been afforded to private property and economic liberties were substantially eroded by the same deferential attitude toward legislation, both federal and state, that placed an ever stronger stranglehold on the economy.

The combination of these three factors undid the two essential pillars of limited government: strict delineation of government powers and strong protection of rights of property, contract, religion, and association. In the modern setting, we have more to fear than gridlock. We also face the risk that our political process will spew out new measures like Obamacare and Dodd-Frank, which threaten to hamstring so much of the economy. Thus, Moe and Howell are right to be concerned with the current state of American government. But their incorrect diagnosis leads to the wrong cure. We don’t need more government—we need less. The problem with the original Constitution is not that it has become obsolete. It is that its store of institutional wisdom has been forgotten or repressed by modern thinkers who have failed to understand its philosophical underpinnings and institutional achievements.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.