Defining Ideas

Conservatives And Constitutional Change

Wednesday, June 22, 2016
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Kim Davies

Editor’s note: The authors’ new book Relic: How Our Constitution Undermines Effective Government—And Why We Need a More Powerful Presidency was published on April 26 by Basic Books. They wrote an essay about the book for Defining Ideas on June 2, 2016, and Richard A. Epstein responded to that essay here. Below is the authors’ response to Epstein.

Conservatives love the Constitution, and their love is understandable. By any standard, the Constitution is among the most remarkable achievements in the history of human governance. But love is also blind. And it leads conservatives to put the Constitution on a pedestal, and to recoil at any suggestion that this hallowed document, for all its merits, also has some important negative consequences for the governance of modern America.

That the Constitution does indeed have such a downside is the theme of our new book, Relic. In it we show that the Constitution’s architecture of government, with a parochial Congress at its lawmaking center, may well have been fine for a small, isolated, agrarian society in 1789, but it is profoundly ineffective at dealing with the complex problems of modern times, from globalization to poverty to health care to immigration to infrastructure to Social Security, and on and on. It was designed for a bygone era, and is wholly out of sync with the requirements of effective government in today’s world.

Relic has been in print for less than two months, but already we can see that the conservative response (with some exceptions) is to circle the wagons. Our hope, in writing Relic, was to stimulate a serious conversation about the Constitution’s impact on the prospects for effective governance in modern times. So far, conservatives have contributed little to that conversation. What they have said, however, reveals a great deal about the ways in which ideological commitments can impede thoughtful consideration of institutional reforms.

Conservatives are a diverse and lively lot, and we don’t mean to suggest that they all march in intellectual lockstep. In their reactions to our book, however, certain commonalities come through, which are well reflected in a recent essay by Richard A. Epstein, the prominent legal scholar and libertarian. As a window into conservative thinking, there are dividends to be gained by taking a look at the basic arguments that Epstein brings to bear—and why they miss the mark.

Relic is a book about effective government. Specifically, it is about how the Constitution undermines effective government and what might be done to improve matters. For the most part, Epstein doesn’t address any of this. He has very little to say about effective government; he doesn’t explore whether the Constitution has an impact on it; he doesn’t recognize the very different capacities of Congress and presidents to deal with the nation’s vexing social problems; and he doesn’t evaluate the evidence in favor of our proposed reforms. He basically ignores the content of the book.

Instead, Epstein mainly talks about what kind of government he wants as a libertarian. If there is an overriding theme to Epstein’s critique, it is that he favors small government—and that, because we are (allegedly) making an argument for big government, our analysis is completely misguided and pushes the nation in a bad direction. “We don’t need more government—we need less,” he concludes.

The essence of Epstein’s argument in favor of small government has little to do with whether small government is more effective than big government at addressing the nation’s social problems. His embrace of small government, instead, is rooted in his belief that it is better suited to safeguarding individual freedom—the philosophical lynchpin of libertarianism—and to protecting “rights of property, contract, religion, and association.” But is small government better at dealing with pollution? With the disruptions of globalization? With persistent poverty? With health care? Epstein doesn’t say. As a libertarian, he believes that government should not even be in the business of trying to deal with society’s serious problems.

This is not what most Americans think. They want a government that can solve social problems. And throughout modern history, they have demanded action from their elected officials, Democrats and Republicans alike. There is a reason that Libertarian candidates for president regularly get less than one percent of the total vote: very few Americans share Epstein’s view of government.

Of course, there are legitimate debates to be had about the scope and purposes of government. Reasonable people can also disagree about which level of government—local, state, or federal—is best equipped to address different challenges. Such, in fact, are the main points of difference between the nation’s two major parties. Democrats favor a more expansive government that spends more and supports greater top-down interventions, whereas Republicans favor a smaller government that spends less and relies more heavily on local and state government action. Both parties, though, regularly seek to use government and its authority to address the nation’s major problems—they just do it in different ways.

In Relic, we offer no judgment on the proper size of government, or which party has the better solutions to the nation’s problems. At the heart of our analysis, rather, is a simple question: does the structure of government handed down by our 225-year-old Constitution enable political leaders—be they Democrat or Republican—to deal with the vexing problems of modern society in effective ways?

Our answer to that question is no—and the answer has nothing to do with our ideological views or partisan convictions. It is based on an objective analysis of how, given the nation’s constitutionally prescribed institutions, presidents and members of Congress can be expected to behave, and what it means for the effectiveness of policy. This is the logical core of our argument. What we show is that members of Congress, rooted in their local states and districts, are wide open to parochial constituencies and special-interest power, and cannot collectively function (except rarely) to take effective action in addressing the nation’s problems. We also show that presidents—largely motivated by their historical legacy—are far more likely to pursue effective policies. Compared to Congress, they are the nation’s champions of effective government. Under the original constitutional design, then, with Congress at the lawmaking center, American government is—and long has been—doomed to ineffectiveness. The path to improvement lies in changing the Constitution to give presidents a more central role in legislation, and to give Congress and all its pathologies a less central role.

A very simple, low-risk way to do this, we suggest, is to endow presidents with fast-track authority in policy realms beyond international trade. Congress would then be forced to deliberate and vote on policies crafted by the one political player who, for institutional reasons, pays more attention to the national interest and to finding coherent, durable solutions to the nation’s problems than any other elected official. To be sure, the policies the president endorses will not always be the best. Some may be downright misguided. But we are not talking—even remotely—about giving presidents the power to make policy by fiat, as Epstein wrongly implies. Quite the contrary, it is simply a considered attempt to give Americans a government that actually works—by bringing the champion of effective government to the center of the lawmaking process, while still maintaining all of the legislative, judicial, and electoral checks that currently constrain the exercise of presidential power.

Epstein only superficially engages the actual substance of our fast-track recommendation. He ignores the lessons learned from 40 years of experience under fast-track authority—the compelling reasons that Congress has often freely granted this power to presidents, the ways in which fast track has tempered the influence of special interests, and the extraordinary impact it has had on free trade. Instead, he argues that fast track will lead either to the president getting exactly what he wants (which Epstein abhors) or to Congress remaining firmly in charge (which is more likely, he says, but wouldn’t change the current system). But there is a massive scholarly literature on inter-branch bargaining which shows that this claim is wrong.

Epstein isn’t just rejecting fast track. He is defending the Constitution’s original design, with Congress at the lawmaking center. He does that without providing any assessment of our claim that Congress is incapable of promoting effective government. If he wants to leave Congress at the center of government, he needs to explain why Congress’s pathologies are somehow consistent with effective performance.

Epstein also fails to consider why presidents—all presidents—behave as they do. Why does Obama, like so many before him, turn to unilateral directives rather than the legislative process to advance portions of his policy agenda? This is a question about which we have written a great deal, and we can’t possibly summarize it all here.  One specific point, though, is particularly germane to the discussion at hand. Presidents turn to unilateral directives because they cannot secure a proper hearing in Congress. In many instances, members of Congress altogether refuse to bring presidential proposals up for a vote; and when they do, these same members fill the legislation with all sorts of exceptions, carve-outs, and compromises that make the proposal more palatable to the special interests they are so responsive to.

What would happen, then, if presidents had fast-track authority? In some instances, gridlock would be broken. In others, a more responsible debate about national, long-term problems would follow. Just as importantly, though, presidents would not have as much reason to pursue policy changes unilaterally. Assured that their policy objectives would receive a hearing in Congress, presidents would have less reason to pursue their policies on their own. And should they continue to press their case unilaterally, then legislators, judges, and the American public would be all the more justified (and emboldened) to offer a corrective.

Many conservatives, consumed by their hostility toward Barack Obama, reject out of hand the very notion that more power ought to be given to the presidency.  They forget the ways in which our archaic governance system made it virtually impossible for Ronald Reagan to succeed in his historic aim of rolling back the welfare state. Is that what conservatives want? A government that can’t respond to conservative leadership even with a Ronald Reagan at the helm? So completely preoccupied are they by the current moment, many conservatives refuse to think seriously about the institutions they would need to effectively address the social problems that lie at the heart of their own agenda—including the national debt, terrorism, immigration, crushing entitlements, and the size of government.

Conservatives now have a choice. They can keep their heads in the sand and insist—all facts to the contrary—that a Constitution written for a bygone era is perfectly well suited for the complex challenges of modern times. And in doing so, they will all but guarantee that conservative principles will never be put to truly effective use in solving contemporary problems. Alternatively, conservatives can buck up, face the challenges our nation confronts head on, and contribute to a larger conversation about institutional reform and effective government. By following this path, they needn’t abandon their commitment to smaller government. Indeed, the whole point of taking a hard look at the institutional design of Congress and the presidency is to make it possible for our elected leaders—including conservatives—to actually follow through on their campaign promises and take effective action in addressing the nation’s serious, long-term problems.

Constitution worship is not just misguided. It is pernicious. It invites a kind of nostalgia that, as Thomas Jefferson himself recognized, corrodes the mind and saps the will. Rather than yearn for an era that is long gone, conservatives need to confront the realities of modern times. With all the energy, courage, and urgency that the founders exhibited when they remade the hopelessly ineffective Articles of Confederation, conservatives need to evaluate the capacity of our political institutions to solve today’s problems. And they should not tremble at the thought that a corrective to the Constitution might be needed.