Opinion

Our ‘imbecilic’ Constitution?

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Richard Epstein
Senior Fellow, Hoover Institution
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      Richard Epstein

      Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).

The bad news about our stalled economy is distressing on two fronts. The unemployment rate recently crept back up to 8.2 percent and the stock market lost all its gains for 2012. The second reason concerns the long-term soundness of our institutions. California’s fiscal crisis, for instance, is in large measure driven by its outsized pensions for retired public employees.

Today’s problems are so pervasive, some argue, that we should rethink the fundamental structure of our venerable Constitution. University of Texas law professor Sanford Levinson’s recent book, Our Undemocratic Constitution, argues for jettisoning our present constitutional structures in favor of more flexible institutional arrangements that, he thinks, will prove better adapted to our troubled times.

In a recent New York Times column, Levinson raised the ante by calling the Constitution “imbecilic.” The title of his column, “Our imbecilic Constitution,” draws on the Federalist Papers’ use of the epithet “imbecilic” to describe the state of affairs under the ill-fated Articles of Confederation, under which the United States suffered from a weak central government that was unable, for example, to levy taxes to support its endeavors. The federal Constitution fixed that problem by creating a stronger national government than existed under the Articles, albeit one that exercised only a fraction of the powers that are now vested in Congress, some of which have been delegated to the administrative agencies. In Levinson’s view, the same harsh indictment can now be made of the 1787 Constitution. His argument rests on his distaste for two principles that create gridlock: separation of powers and checks and balances. He writes:

Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

The many obstacles toward legislation, in his view, make it well-nigh impossible to form a coherent national policy.

To find a cure, Levinson argues, it is important to take a page from the progressive policies of Woodrow Wilson. Long before he was elected president, Wilson insisted that the structural safeguards of the original Constitution were an impediment to responsible social policy. Historically, it is clear that Wilson won that debate. Today’s working Constitution is quite different from the sparer government regime put in place by the original Constitution, the 1791 Bill of Rights, and the Civil War amendments, most notably the Fourteenth Amendment of 1868. The Fourteenth Amendment gave citizenship to all former black slaves, and imposed extensive limitations on the powers that the states could exert over their own populations. Its net effect was to make government at both the federal and state level smaller than it had been in 1787.

For the most part, those restrictions worked well through the early years of the twentieth century. Indeed, in writing about this issue just last week, David Brooks noted that the size of the federal government throughout the nineteenth century was about 4 percent of GDP, and it grew to about 10 percent under the New Deal. According to the CBO, that number has increased to about 25 percent today. The increased role of the government in the economy has had a negative effect on American society: all too often, efficient private activities have been displaced by less efficient government programs with large transfer payments and high regulatory costs that do wonders for their beneficiaries but little good for anyone else.