Epstein Takes On Levinson's "Our Imbecilic Constitution"

Our “Imbecilic” Constitution?
Richard A. Epstein
Defining Ideas
June 5, 2012

The bad news about our stalled economy is distressing on two fronts. The unemployment rate recently crept back up to 8.1 percent and the stock market lost all its gain 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.

Richard A. Epstein