Making a Relic of the Constitution

For the last 100 years our grand political debate has centered on the tension between the principles and mechanics of the Constitution and the ideals of the Progressive movement. Under FDR the Progressives became known as liberals, but the term ‘Progressivism’ has re-emerged under Hillary, who described herself as a Progressive Democrat in order to distinguish herself from the self-proclaimed socialist who has ‘trumped’ her party’s nomination process.

The early Progressives sought changes necessitated by rapid economic growth and industrialization. They regulated food and drugs, interstate commerce, labor laws, and successfully sought to break up monopolies and trusts that they thought had gained too much economic and political power. Woodrow Wilson believed in a unified will of the voters, molded by strong leaders, and a professionally staffed administrative institution to manage government much as the new managerial class was running large businesses.

Wilson was critical of the structural constraints of the Constitution designed by the Founders. The Progressives sought to tilt the balance of power substantially from the states to the federal government, contending that parochial interests centered in Congress made national action too difficult and incohesive.

Eventually the strong leaders and compliant courts succeeded in implementing the Progressive agenda. The administrative state became a large regulatory state and gave birth to the welfare state.

In Relic. How Our Constitution Undermines Effective Government--and Why We Need a More Powerful Presidency by William Howell and Terry Moe, Wilson’s political theories are rejuvenated as the authors seek a second age of Progressivism. They lament the inability of the Congress to overcome partisan and parochial interests and blame the structure of the Constitution. Their solution is greater legislative authority for the president. Specifically, they propose to grant the president fast track authority on all policy matters, not just trade negotiations. The president would draft policy legislation, submit it to Congress who would vote it up or down in a limited period with no amendments. If the Congress refuses to take a vote the proposal would become law.

In the view of the authors, the president is more focused on national concerns and is able to make policy on complicated and important issues without the distraction of special interests and parochial concerns. Since Congress can vote no on the bill, the president would have to consider the will of Congress and would be unable to unilaterally impose radical changes on the American people.

Harold and Moe are unable or unwilling to find fault with the past results of the Progressive policies. While there is much to agree with them on the difficulty of Congress to enact major policy changes from either party, there is also much to be concerned about with their solution.

The Founders may have failed to imagine the kinds of changes the country faced a century ahead, but their concern was not the efficiency of government, but the misuse of its power. Thus they dispersed it between the states and the federal government and among the three branches. The great challenge for the modern Progressives is to make the government more responsive to current needs without losing sight of the potential for the abuse of its power. Wilson thought this concern for circumscribing political power was an outdated concept, and the authors of Relic clearly agree.

But many do not agree. Author Randy Barnett in Our Republican Constitution. Securing the Liberty and Sovereignty of We the People takes an opposing viewpoint: our problem lies not in the structure of our Constitution but in our efforts to stray from its essential principles. Our unelected Administrative State acting like a fourth branch of government has bypassed constitutional constraints and electoral accountability. Our courts have strayed from the mission of protecting individual constitutional rights to upholding majoritarian democracy. Justice John Roberts said it is not the job of the courts to correct bad legislation, but critics contend that the courts should oppose unconstitutional legislation. That line has become quite blurred. 

Howell and Moe presume that the president is purer in his motivation by his concern for his legacy. I do not find comfort with that thought. An unrestrained ego seeking a place in history can yield great reforms, but it can also drive destructive actions. The thought that Congress can vote the president’s fast track policy legislation up or down offers little comfort. There are periods where the president can count on a very compliant Congress. The ACA was such a case.

While our constitutional constraints make comprehensive legislation difficult they also provide a needed break on bad legislation. Barnett notes that the regulatory bureaucracies have upset the balance of power, making reversal of administrative rules extremely difficult. We have found a way to work around the Constitution to pass rules in a branch without accountability yet can invoke the Constitution to block any correction.

Perhaps Relic fails most in its assumption that centralized decision making is more likely to be correct than decentralized decisions. There is a myopic view that all great problems require systemic solutions, or that several smaller problems indicate a systemic problem. This complex approach hides costs and pretends that difficult decisions do not exist. We end up with reforms to correct the problems brought by our previous reforms.

We should avoid bestowing power on any position without picturing our worst nightmare in that position able to exercise that power. Charles Cooke at National Review suggested that the potential for a Donald Trump presidency may make even the Progressives reconsider their fondness for greater executive power. In the aftermath of Watergate, Congress saw fit to reduce executive power.

The prospect of the candidates in front of us may unite the parties in appreciating the limits the framers saw fit to impose. It is the Progressive agenda that is becoming the ‘relic’, not the Constitution.

Henry Oliner blogs at