America’s antiquated constitution

The founding document of the United States is wholly unsuited for a modern democracy—and a potential danger to its survival

February 02, 2017
Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940
Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940

For more than a year, Donald Trump warned Americans that their political system was rigged to subvert the will of the people. When the votes were counted on Election Day, the outcome did indeed subvert the will of the people—but hardly in the way Trump envisioned. Hillary Clinton won almost three million more votes than Trump did, beating him by a margin of some 2.1 per cent. Yet Trump was elected president.

How could such a thing happen? The answer lies in the Electoral College, a grossly undemocratic provision of the American Constitution. Writing in 1787, the founders wanted to avoid mob rule—and give extra voting power to small states and the slave-holding South—by putting the selection of presidents in the hands of state-chosen electors rather than ordinary people. Although voters now choose the electors, the battle for the presidency turns on who wins each state, and on winning a majority of state electors—not a plurality of the popular vote. No one today would design such an oddball electoral system. It makes no sense. It offends the most basic of democratic norms. Yet we are stuck with it—a relic of the past that degrades American democracy.

The Electoral College is not the only thing we are stuck with. In fact, the Constitution imposes an entire structure of government that is wholly unsuited to modern times, and that operates like a straitjacket on us today. America’s greatest and most consequential challenge, long term, is that it is burdened by a government that just doesn’t work very well, and indeed is dysfunctional. Even if the nation could somehow free itself from the Electoral College and arrive at a more democratic way of electing its presidents, those presidents would still assume office and inherit a government that is ungovernable.

In our recent book, Relic, we explain how the Constitution undermines the prospects for effective government in America. The real problem rests with the core components of government that, as the Constitution designed them, are responsible for making the nation’s laws. The US Congress is right at the center of the lawmaking process—and right at the center of the dysfunction. As a decision-maker, it is inexcusably bad and utterly incapable of taking effective action on behalf of the nation. Most observers point the finger at partisan polarisation and the accompanying vitriol between the Democratic and Republican parties. They say that, if we could just move to a more moderate brand of politics, Congress could get back to the good old days when it did a fine job of making public policy, and all would be well. This conventional wisdom is partially correct: polarisation is indeed a serious problem. But any notion that American government functioned wonderfully in the good old days is pure fantasy. The fact is, the good old days were not good.

With some exceptions, Congress has never been capable of crafting effective policy responses to the nation’s problems. (For documentation, take a look, for example, at Peter Schuck’s Why Government Fails So Often, which provides a mountain of historical evidence.) Polarisation has made a bad situation worse. But even so, it is not the underlying cause of Congress’s core inadequacies, which are baked into the institution and not of recent vintage. Congress is an ineffective policymaker because it is wired to be that way by the Constitution, whose design ensures that legislators are electorally tied to their local jurisdictions and highly responsive to the constituencies and special interests that get them reelected. Congress is not wired to solve national problems in the national interest. It is wired to allow hundreds of parochial legislators to promote their own political welfare through special-interest politics.

"Any notion that American government functioned wonderfully in the good old days is pure fantasy. The fact is, the good old days were not good"
With Congress’s pathologies rooted in the Constitution, the ultimate problem is the Constitution itself. The founders crafted a government some 225 years ago for a simple, isolated agrarian society of less than four million people, 700,000 of whom were slaves. Government was not expected to do much, and the founders purposely designed a byzantine government that couldn’t do much, separating authority across the branches and filling it with veto points that make coherent policy action exceedingly difficult.

As any student of history knows, American government has had its moments of frenzied action—Franklin Roosevelt’s New Deal and Lyndon Johnson’s Great Society, most notably. But these have been rare and due to special circumstances. The historical norm has been that legislation is a slow, tortuous, wrenching process that makes any action at all exceedingly difficult. And when government has been able to act (including during these two special eras), congressional lawmaking has typically led to cobbled-together policy concoctions that are crafted as they are, on purely political grounds, to get disparate legislators representing very different special and local interests on board—not to provide coherent, intellectually justified means of addressing the nation’s problems. In modern America, look no further than US tax policy, which is not a policy at all, but a grotesque conglomeration of thousands of special-interest favors and loopholes. Or witness the ways in which insurance companies, hospitals, drug companies, and other vested interests profoundly shaped the Affordable Care Act, turning it into something that no one would have designed that way if they wanted a cost-efficient, well-working system.

The founders’ approach to governance may have been fine for the late 1700s. But that era is long gone, and it isn’t coming back. Within 100 years of the founding, the nation grew to fifteen times its original population, stretched all the way to the Pacific, and was developing explosively into a modern industrial society—generating countless problems along the way, from rapacious monopoly to child labor to urban poverty to unregulated drugs and more—that the founders never anticipated and the government they designed was never intended to solve. It was already way out of sync with the society it was supposed to be governing.

The Progressive movement of late 1800s and early 1900s, the most powerful movement for governmental reform in American history, arose in reaction to these developments. Its aim was to bring about transformations—through, for example, a stronger presidency (think Teddy Roosevelt) and a merit-based bureaucracy (to replace the spoils system)—that would better equip government to deal with the problems of modern times. But while these reforms surely helped, the disjunction between government and society only got worse over time as society continued to change.

During the last century, the pace of social change has only accelerated, driven by stunning technological innovations and an increasingly complex and globalised economy, and giving rise to a mind-boggling array of vexing problems that weigh upon American society today. Terrorism. Pollution. Inequality. Persistent poverty. Climate change. A crumbling infrastructure. Intense international competition. A broken immigration system. Weak economic growth. And much more. Modern society also generates, quite inevitably, all sorts of basic social needs—for health care, transportation, retirement, education, safety, and on and on—that government is called upon to deal with. What we need is a government that is up to the challenges thrust upon it by the modern world. But what we have is a government designed in the late 1700s for a primitive world nothing like our own.

Is there a promising path forward? The United States clearly isn’t going to shift to a parliamentary system. And other radical reforms are off the table too. That being so, a practical strategy under the circumstances is to seek out small constitutional changes that promise big pay-offs for effective government. Here, specifically, is an approach that we think makes good sense: with Congress the prime source of dysfunction, it should be moved to the periphery of the lawmaking process where its pathologies can do less damage—and presidents should be moved to the center where they can do the most good.

Why presidents? Because their wiring is very different from Congress’s and actually propels them to be the champions of effective government. This is so regardless of whether they are liberals or conservatives, Democrats or Republicans, seekers of big government or small government. Quite unlike most legislators, presidents think in national terms about national problems, and their overriding concern for their historical legacies drives them to seek durable policy solutions to pressing national problems. Needless to say, they are not always right or successful. Conservative presidents seek very different policy solutions than liberal presidents do. And many of us, on the losing end of elections, may strongly disagree with a president’s agenda. But regardless of their differing approaches, all presidents aspire to be the nation’s problem-solvers-in-chief. That being so, if policymaking power can be shifted partly in their direction—and away from Congress—the prospects for effective government will be much improved.

A straightforward and responsible way to do this is through a constitutional amendment that grants presidents universal “fast track” authority. The nation has 40 years of positive experience with fast track in international trade, and that same model would simply be applied to all legislation. Presidents would craft policy proposals—which are likely to be far more coherent, well integrated, and effective than anything Congress would design—and Congress would be required to vote up or down on those proposals, within a specified period of time and on a majoritarian basis, without changing them. No indefinite delays. No filibusters. No earmarks. No loopholes for special interests. Congress would retain the authority to pass laws on its own, while presidents would retain the authority to veto them.
"What we have is a government designed in the late 1700s for a primitive world nothing like our own"
To our British readers, fast track may conjure up images of a procedure sometimes used in the British Parliament—the guillotine motion—that is adopted to strictly limit discussion of a (usually controversial) legislative bill, and thus to streamline the process. Fast track is like a more robust and enduring guillotine. The American system needs a remedy with extra potency because Congress is a minefield of veto points fueled by parochialism—a far more obstructive place than Parliament—and a comprehensive redesign of the decision process is required in order to overcome all the structural messiness. Fast track isn’t just a procedure. It’s a new—and beautifully simple—decision model. Your Parliament is already beautifully simple, guillotine or no.

But if the United States were to adopt fast track, what about the elephant in the room? Donald Trump has been elected, so wouldn’t a shift in power from Congress toward presidents be a threat to American democracy? We want to be up-front about where we stand on this man. He revealed himself during the campaign to be a demagogue whose distortions, lies, ignorance, and bigotry are beyond troubling. As president he won’t become a totally different person. But what it takes to win the presidency is different from what it takes to be a successful president. Caring deeply about his legacy, as he surely does, President Trump will seek solutions to the nation’s problems as he sees them.

We strongly oppose his policy agenda, as well as most of the cabinet appointments he has made, and we quake at the thought of Trump as the leader of our nation. As a matter of institutional design, however, it is a mistake to think that government should be tied up in protective knots—for the ages, regardless of who holds elective office—to ensure that no president or government could ever do anything that we don’t like. The price of such super-protective arrangements is that action of any kind becomes very difficult, and government will rarely be able to do anything positive either. Most important, it will lack the capacity to do what government should be doing, by responding effectively to the pressing demands and needs of society. The challenge of reform is to maintain adequate protections—which American government already possesses in abundance—and to seek out nonthreatening means of enabling action and responsiveness.

Fast track is one such reform. And it does not entail a generically more powerful presidency. Fast track only enhances presidential power in a way that is very specialised and highly constrained. Whatever policy a president might propose under fast track, both houses of Congress would still need to give their separate consent before the proposal becomes law. Policy would be a three-way decision, not a presidential decision. And the court system and separation of powers would remain intact, along with the Bill of Rights and its vast protections. The entire constellation of checks and balances would continue to limit what presidents could do, much as it has for more than 200 years.

A related concern that some might raise has to do with presidential “overreach.” For most people, this is probably the aspect of presidential power that first comes to mind in worrying about Trump or some other autocratically inclined president. Yet fast track only deals with legislation—it adds nothing to the president’s unilateral powers, which are what “overreach” is all about. Indeed, a big reason presidents have favored executive orders and other unilateral actions is that, with Congress such an institutional disaster, the legislative process is all but unavailable for solving problems. Under fast track, presidents would use legislation more and unilateral actions less.

Consider immigration, for example. President Bush submitted immigration reforms to Congress in 2005 and 2006, and President Obama submitted another in 2013. All these bills had majority support in Congress, yet the first two lost on Senate filibusters and the third failed because Speaker John Boehner refused to let the House vote. The result? No reform, a festering immigration problem—and a 2014 executive order by Obama that caused much consternation on the political Right. With fast track, the nation would have passed a bipartisan immigration law more than ten years ago. And there would have been no Obama executive order.

One might also worry that by requiring Congress to vote on an up-or-down basis, fast track authority will diminish the kind of deliberation that is needed to address complex and controversial problems. To the contrary, fast track authority will enhance it. Whereas now legislators grandstand in empty chambers and television studios in calculated efforts to delay and derail proposals crafted within their midst, fast track authority would require these legislators to grapple in earnest with initiatives that are designed to solve national problems. They would be perfectly free to vote down the president’s proposal. And should they do so, they could then carry on as they always have, either by sticking with the status quo or introducing new bills of their own. What these legislators could not do, however, is simply set aside presidential initiatives in order to avoid tough votes. Nor could they amend presidential proposals beyond recognition. Under fast track, legislators would have to evaluate these national policies on national terms, formulate judgments about their merits, cast votes, and then justify these votes to their constituents back home. Nothing could be more conducive to democratic deliberation than that.

The brute fact is that, in the practice of American politics, “principled” criticisms of a too-powerful presidency most often turn on short-term calculations of partisanship and whose ox is being gored. Democrats love presidential power—including its unilateral exercise through executive orders—when one of their own is in office, but they hate it when their opponents hold office. Republicans do the same. After eight years of screaming about Obama’s unconstitutional overreach, Republicans will begin happily praising Trump’s orders now that the presidency is in their hands.

None of this self-interested pontificating has anything to do with an impartial assessment of whether enhanced agenda-setting power for the presidency—regardless of party—would be good for the nation over the long term. Fast track is not about advantaging one party over another. It doesn’t inherently favor the Republicans, it doesn’t inherently favor the Democrats. And it doesn’t threaten to produce some sort of imperial presidency. What it does do is recognise reality—that Congress is dysfunctional, that the system as a whole doesn’t work—and offer a simple, well-tested means of promoting a more effective government whoever happens to be in office.

Finally, we should address a concern that conservatives may have about fast track: that by making governmental action easier, it promotes “big government.” This needn’t be the case at all, and indeed, the opposite may well be true. Consider. Under the current separation of powers system, with Congress and all its pathologies at the lawmaking center, American government spends enormous sums for policies that don’t work very well, can’t be fixed or gotten rid of, and stay on the books while new programs are incrementally added over the years—producing a massive, messy, ineffective governmental system that soaks up the nation’s resources without resolving its problems. Any notion that the current system promotes “small government” is simply wrong. American government is not small. If its entire corpus is fully measured, including the “submerged state” (of private contractors and the like) that people often fail to recognise, it is just as big as most of the welfare states of Europe. Separation of powers has not prevented any of this from happening. The idea that it is somehow a bulwark against big government is a chimera.

Conservatives who favor smaller government should ask themselves: how successful have Republican presidents been at paring back the American welfare state and achieving a smaller, less wasteful government? Answer: despite occupying the White House for roughly half of the entire post-War era, they have not been successful at all. Why? Much of the answer is that the policy process is stacked against major policy change. On those occasions when Republican presidents, particularly Ronald Reagan, sought to make government smaller, their efforts were readily blocked by congressional and special-interest opponents who used the system’s many veto points to protect their turf. The status quo won. If conservatives want to make government smaller—if they want a real Reagan Revolution instead of just a rhetorical one—they need a political system whose decision model gives presidents, including conservative presidents, the capacity for taking effective action. Without fast track or something like it, conservatives will never be able to enact the retrenching policy reforms they think are needed. They will be stuck with a big, expensive, ineffective government. And the irony is that the separation of powers system they hold in such reverence is a prime reason they will be stuck with it.

The same themes, with slight variations in policy content, could just as well be directed at liberals. Or at Americans generally. Whatever our policy agendas, whatever our ideologies, whatever our visions for the future, we are all stuck. Political campaigns go on forever, candidates vigorously compete for office, the media goes crazy over the horserace, the public is entertained, we all bite our fingernails on election night—and for what? What actually happens after Americans go to the polls and finally pick a new president? The new president inherits a government that doesn’t work, and at its heart is a congressional lawmaking process that turns coherent policy ideas into special-interest protections, carve-outs, give-aways, and loopholes. The policies that emerge always have lofty names. But their contents are so weak and distorted that they don’t solve the nation’s problems—and aren’t responsive, in an effective way, to the electoral forces that brought the president into office.

Why was Donald Trump elected president? A big part of the answer is precisely that American government doesn’t work. For decades now, globalisation and technological change have profoundly disrupted the nation’s economy and society, leaving great numbers of Americans feeling worse off, marginalised, threatened, and in despair about their futures. Yet their government—captured at its core by special interests, incapable of crafting effective policies—has demonstrated time and again that it can’t perform, can’t be trusted, and doesn’t care about their needs. Enter Donald Trump, the rogue outsider, who spoke of “the forgotten men and women of this country,” and who promised a government that would actually recognise and deal with their problems. Trump is a con man, one of the greatest hucksters in American history. But the underlying reality is that many Americans are hurting, and they are fed up with a government that doesn’t work. He gave voice to that reality.

The prospect of a Trump presidency for the next four years terrifies many people who didn’t support him. In foreign policy, where presidents have great unilateral power, the worry is that he could trash our alliances, tolerate Russian adventurism, cause a trade war, and blunder into international crises. These are all major concerns. But they arise from powers of unilateral action, and the dangers remain much the same regardless of whether a reform like fast track is adopted to make government more effective. Indeed, by allowing presidents to present legislative proposals before Congress, fast track may actually subdue the reliance upon unilateral powers to advance a foreign policy agenda—for at last the president could be sure that his proposals would receive a full hearing and a final vote on the merits.

Our focus in Relic, however, is on the domestic realm, where presidential power is more formally constrained. Here too, Trump’s critics are plenty scared. And the scare is only magnified because he comes into office with a Republican House and Senate, which conjures up a nightmare scenario in which he takes advantage of unified government to ram through radical reforms that turn American public policy upside down. It is important to recognise, however, that he inherits the same unworkable government that got him elected, and that has frustrated and weakened other presidents.
Why was Donald Trump elected president? A big part of the answer is precisely that American government doesn’t work
Yes, Trump and his Republican allies are likely to make some sharp alterations in domestic policy—with regard to health care, taxes, immigration, the environment, and trade—and liberals will surely be up in arms. But because the legislative process is so cumbersome, many of these changes will occur through administrative rulemaking, unilateral directives, and the reinterpretation of existing statutes, and they will tend to be narrow and targeted. The more comprehensive, more sweeping attempts to change public policy will need to go through Congress—and most policies that emerge will not come close to matching Trump’s campaign rhetoric. Republicans in Congress are factionalised along ideological and constituency lines, and they do not agree with one another—or with Trump—about how these policies should be crafted. Interest groups of all sorts, moreover, will continue to influence the details both big and small. As in the past, policies will emerge as the cobbled-together concoctions that Congress specialises in. And they will be ineffective at solving the nation’s problems. In this key respect, the more things change the more they stay the same.

America is now entering a period in which, for many observers of American politics, Donald Trump is destined to become the personification of the nation’s governance problems. The nation is badly governed, they will say, because Trump is president. This is short-sighted, and it does the nation no service. The real problem is that we have a government that doesn’t work, regardless of which person or party is in power. And we have a government that doesn’t work because it is imposed on us by an outdated Constitution.

We can’t blame the nation’s 18th century founders for the bind we are in today. They were admirable men of the highest caliber, but they had no idea what a modern society would look like. They designed a government for a tiny agrarian nation, and they assumed that, as society changed, future generations would change the Constitution to meet evolving needs. But future generations didn’t do that. Instead, they put it on a pedestal to be worshipped.

For a good long time, Americans have treated their Constitution as something akin to scripture, and the founders themselves as the apotheosis of quintessentially American ideals. The Constitution, our politicians tell us, is something that is meant to be protected, cherished, and revered. Indeed, these politicians say, our contemporary malaise stems in no small part from the fact that we have strayed—much like a lost flock—from the Constitution. If we are to set things right, we must humbly return to the Constitution and bow before it.

Nearly a century ago, the renowned civil liberties lawyer Louis Marshall spoke for many when he called the Constitution “our holy of holies, an instrument of sacred import.” Today is no different. Huge majorities distrust the federal government. Many are sharply critical of the president, and Congress is regarded with thinly veiled contempt. But the Constitution is above criticism, embraced with the kind of abiding reverence and sanctimony usually associated with religion. Public officials do bad things. The government does bad things. But the Constitution is good. And if the government and its officials fail this nation in various ways—which they do, regularly—then it is their fault, not the Constitution’s.

To view the Constitution this way is a big mistake. The Constitution is an antiquated document, imported from a distant past, and written by fallible men. It is a document, moreover, that has enormous consequences for how the nation is governed, for how well it is governed, and for countless important aspects of our everyday lives. There should be nothing off-limits about exploring the Constitution’s impacts—rationally, deliberately, and unapologetically. These are matters of objective fact, and they need to be studied, assessed, and openly debated if Americans are to have a clear sense of why their government is disappointing them and what can be done about it. Relic is our attempt to encourage new thinking along these lines.

This kind of thinking does not lead only and irrevocably to the specific reform we propose here. If we take seriously the notion that each generation must come to terms with the challenges it faces, then the work of constitutional adaptation and institutional reform is never complete. Were universal fast track authority adopted, additional correctives may well be needed further down the road as American society continues to change. And change it will, doubtless in ways that we can’t foresee or anticipate today.

What isn’t needed, and what we must renounce, is the rigidity and nostalgia associated with Constitution worship. As none other than Thomas Jefferson wrote late in life, reflecting back on the nation’s founding:

Some men look upon constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched… [But] laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilised society to remain ever under the regimen of their barbarous ancestors.

We Americans owe a considerable debt to these “barbarous ancestors.” The US Constitution is among the greatest achievements in the history of human governance. In it, we have much to value and much to be proud of. But what we need now is a healthier, more objective understanding of how the Constitution actually affects our lives today. Modern America bears almost no resemblance to the America of the late 1700s—and it is up to us, as Jefferson well recognised, to modify the Constitution to allow for effective government in our times. The founders cannot save us. We must save ourselves.

Together, Howell and Moe are the authors of "Relic: How Our Constitution Undermines Effective Government—And Why We Need a More Powerful Presidency"