Our ‘imbecilic’ Constitution?

Richard Epstein Senior Fellow, Hoover Institution
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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.

How did we get into this position? Very simply, it was through our conscious deviations from the original constitutional plan. Historically, the overall system of limited government started to erode even before the great progressive triumphs of the New Deal era (and, most dramatically, the 1936–1937 Supreme Court term). The Seventeenth Amendment to the Constitution, adopted in 1913, authorized the direct election of senators. Before its passage, senators were chosen by state legislatures. Without question, the amendment reduced the power of the states to restrain national legislation.

The Supreme Court chipped in as well. Even though it had the power of judicial review, it did not always choose to exercise it. Between 1900 and 1920, the court gave its blessing to the progressive income tax and to estate and gift taxation. In the 1920s, it upheld New York’s rent control law in Block v. Hirsh and extensive zoning powers in Euclid v. Ambler. The 1930s saw the rise of independent administrative agencies, the end of constitutional protection for economic liberties, and a vast but questionable expansion of congressional power under the Commerce Clause. The simple truth of the matter is that the areas in which this nation finds the greatest distress are the very areas in which federal power has expanded the most.

Levinson does not appreciate the force of these trends because he regards gridlock as a dirty word and thinks that unified government action is required to get us out of the current malaise. His suggestions are strong stuff indeed. One idea is that the winner of the 2012 presidential election gets to appoint 10 members to the Senate and 50 to the House of Representatives for his four-year term.

These numbers are not chosen at random, but are selected to give the president far greater leverage in moving through Congress whatever legislation he wants. These extra senators and representatives are, after all, not beholden to the voters in any particular state, and can thus do the bidding of the president. Levinson’s idea is to introduce into the United States a parliamentary system of government through the back door, something long championed by progressives like Woodrow Wilson. Levinson suggests removing or weakening the presidential veto as part of this scheme. The point seems, however, rather idle. The president will have few occasions on which he is likely to want to veto legislation that his beefed-up party supports.

In addition, Levinson thinks that we should do away with the Electoral College; the president can thus be chosen by a popular majority. To be sure, the Electoral College has its problems. For instance, candidates don’t bother to campaign in safe states. But that hardly counts as an indictment of the system. Without the Electoral College, each candidate will campaign almost exclusively in his safe states and devote far more effort in bringing out the loyal voters than in winning over the fence hangers. The likely result is greater nationwide polarization, especially by region. And if the election’s outcome is too close to call, we would have to endure a nationwide recount that would make the Bush v. Gore dispute a comparative walk in the park. On this issue, it is best to leave the status quo well enough alone.

Levinson also wishes to undermine judicial supremacy. One possibility, he coyly suggests, is to require seven out of nine Supreme Court votes to overturn unconstitutional legislation. Of course, that would, in the current setting, totally insulate President Obama’s health-care plan from judicial assessment, and effectively gut the practice of judicial review in all but the most extreme cases. Another possibility is to make Supreme Court justices responsive, in some way, to the will of the electorate, which could lead to election campaigns or recall elections on a grand scale, during which the court would still be required to function. The template for these and other unwise reforms is the pattern of governance that is found in the states, which have had little or no trouble amending their own constitutions on countless occasions.

We shouldn’t take any comfort in Levinson’s desire to jump from the frying pan into the fire. California has passed many constitutional amendments. It has elected judges, held recall elections, and passed popular initiatives — resulting in a set of ingrained institutional problems that threaten to heap ruin throughout the state. New York and Illinois also have lots of activity at the constitutional level, and their budgets and internal politics are in turmoil as well. The modern world offers no escape from our constitutional problems.

Nor should we expect it to. It is simply irresponsible to propose massive structural changes in constitutional governance without any theory to indicate why and how they are likely to improve the situation in front of us. The only way to think about governments is to first identify the set of individual rights that they are supposed to protect, after which it is possible to put in place the constitutional provisions on both individual rights and government structure that might best serve to protect those rights.

Again, David Brooks’s thoughtful recounting of the role that Alexander Hamilton played in formulating a strong national government shows that the ideas of the Founding period deserve to be taken seriously. Brooks rightly notes that progressives put too much faith in government planning, but he is dead wrong to think well of Wilson, FDR and LBJ for their many initiatives in regulating labor, consumer affairs, health and education.

The expansion of government power through judicial interpretation made all these developments possible, so the Supreme Court must bear its fair share of the blame. But the root causes go deeper. Ultimately, the set of public institutions in place at the federal and state level depend critically on articulating a strong theory of rights that sufficiently limits government discretion at all levels. In my view, it is virtually certain that the United States will continue to totter unless and until its political leaders take strong steps to reestablish the institutions that can allow government to perform the few key tasks that it can do best, without intruding endlessly into the lives of ordinary citizens.

At the federal level, I have stressed over and over again that long-term tax policy should abandon progressive taxation in favor of a simpler and more stable flat tax as the sole source of revenue; the estate tax be damned. Yet, right now, every important tax rate is prey to political manipulation. Similarly, the weak protections afforded to private property and private contract allow all levels of government to use their powers of taxation and regulation to undermine private businesses for no long-term public advantage.

No one should defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation, whether or not we continue to operate under what remains of the federal Constitution. The original Constitution was not imbecilic. On many questions, it reflects a level of wisdom that has unfortunately been lost today.

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). This article originally appeared in Defining Ideas, a journal of the Hoover Institution.