On April 26, Basic Books published a new book by Terry Moe and William G. Howell, Relic: How Our Constitution Undermines Effective Government — And Why We Need a More Powerful Presidency, which then they thereafter summarized in a Defining Ideas Column on June 2. I responded in my own Defining Ideas Column on June 6, which challenged the idea that a modern constitution — or more precisely, their modern constitutional changes — was an improvement on the current structure. Their basic proposal is that the Constitution should create a second track for enacting new laws, whereby the President may propose new legislation which the two Houses of Congress must vote up-or-down, no amendments allowed, within some short period. The gist of that provision is to increase the power of the presidency relative to that of the Congress, in a way that virtually guarantees, especially when both Houses are in control of the President’s party, the passage of many new laws. Moe and Howell think that there is much to be had in ending gridlock and in overcoming the “profoundly ineffective” constitution that the Framers put into place for the agrarian nation of their time.

In my view, their proposal represents a huge backward step in constitutional government. The system with separation of powers on the one side, and checks and balances on the other, is not a peculiar response suitable only for a small agrarian politics nation. It is a calculated response against the dangers of political faction — one which rests on the judgment that the hasty enactment of laws is more dangerous that the delayed enactment of new laws. The obstacles that are put in the path of new legislation are a conscious effort to counter an endemic risk to all political institutions, ancient and modern, large or small.

Moe and Howell, unfortunately, are oblivious the firm foundations of the system they critique. Indeed their deep confusion becomes even more evident in their recent response, Conservatives and Constitutional Change, in which they castigate me, and presumably others for their “blind” love of the past which leads them “to recoil at any suggestion” to tamper with sacred text.

Not so. Moe and Howell make their first mistake in their choice title of their article. I am not a conservative, but a classical liberal, who embraces on normative grounds a polity with limited government and strong property rights. Classical liberalism is a clarion call for innovation and change whenever these principles are flouted, as they are under modern American constitutional law. But it is a call for conservation and continuation when those principles are respected. In no case is there ever a blind adherence in favor of the status quo.

My objections to the world of Moe and Howell are specific to their structural reforms. It is not an effort to block any reform at all. Thus no one who studies the original Constitution has much to say on behalf of the three-fifths clause or with the fugitive slave clause, which helped perpetuate slavery until it was overthrown by the Civil War and the Reconstruction Amendments. And no one who looks at the Constitution can think that the provisions that remain should all be impervious to change. To mention just two points, I have long been a proponent of a constitutional amendment that would place 18-year limits on the terms of Supreme Court justices. In addition, the original Constitution contains huge gaps on foreign affairs. It provides, for example, no clear guidance on whether the President or Congress has the power to recognize foreign nations — a serious gap in the laws that the Moe and Howell proposals does not touch.

So let’s turn for a moment to the supposed merits of their case, which offers us a laundry list about the inability of the current Constitution to deal “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.” To which they later add pollution. Just take these on one at a time.

Why is the Constitution unable to deal with the problems of globalization? The Constitution says: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” Surely no one could say that this power is somehow obsolete in dealing with international affairs. But by the same token, no one can say that this provision does not bristle with serious interpretive difficulties. For starters, it is not clear how the treaty power interacts with the power of Congress, both House and Senate, to make laws. There is no limitation on the proper subjects of treaties that is written into the treaty clause, and it is exceedingly difficult to find an implied principle that places some topics off-limits to the treaty power. As written, power let the President and the Senate into an agreement with some small country in order to limit the power of states to punish certain offenses, to impose the death penalty, or to raise taxes. Nuts, of course. But at the same time there is nothing whatsoever in the Treaty Clause that prevents the use of treaties for their core function of dealing with national security and trade agreements.

Moe and Howell note that right now the Congress authorizes the President to enter into treaties with foreign nations, subject to an up-or-down vote on ratification. This procedure is in tension with the text of the Treaty Clause. Yet there is no good reason to think it foolish or unwise. The key point is that the up-or-down vote is needed for the United States as a nation to make credible commitments with other nations to secure their agreement. There could be no bargaining with foreign nations if Congress could burden the treaty with a bunch of amendments that render it unacceptable to all our trading partners in some international agreement. But it hardly follows from this innovation that the fast-track authority should be adopted for traditional domestic issues, where cooperation with foreign nations is no longer in issue. A constitutional amendment that firmed up this qualification to the treaty power might be welcome. But by the same token the amendment process is always fraught with risk, so perhaps it is better to just leave current practice as it is.

On the question of poverty and health, it is comical to insist that gridlock is the problem. Under the original Constitution welfare was the exclusive province of the states, and there is no obvious reason why state regulation on this matter, with opportunities for experimentation is inferior to the vast federal colossus that now pervades every nook and cranny of this field. The difficulty here is not with gridlock, but with excessive government at two levels. First, Congress finds it all too easy to address these matters by legislation. The Obama administration was able to secure the passage of the Affordable Care Act, all of whose vices are those of too much regulation rather than too little. The adoption of their proposal to fast-track key legislation would have left us in 2010 with a statute that would have been more convoluted than the one now in place.

The real weaknesses in the current set-up is that Congress and the President should not have any role at all in what were once regarded as local matters. The conceit that there is need for some national response to a national problem gets it all backwards. The key national problem is that of excessive regulation which is far easier to impose at the national level than at the state level, where exit rights are a more powerful check against government aggrandizement. But nothing that Moe and Howell propose attacks the root problem of excessive federal power, which their fast-track problem only aggravates.

Second, the Achilles heel in the entire business is that the complexity of the problem means that vast areas of poverty regulation is done by unaccountable administrative agencies that all too easily overstep their bounds. Yet Moe and Howell have nothing to say about the broken structure of the administrative state, an area in which some fresh thinking is needed to cut down on the eagerness of administrative agencies to expand their own grants of power under the guise of interpretation of the governing statute.

Turning next to infrastructure, Moe and Howell make this fundamental confusion. Because the creation of infrastructure requires government action, they assume that it requires federal action. But much infrastructure is better done at the local level, and where it concerns interstate highways and rivers, there is ample federal power, and if anything, too much regulation and too many unwise expenditures. The difficulty in this area is that most modern legislative action on infrastructure encourages pork barrel legislation — think of the Davis-Bacon Act that protects entrenched unions — for which there is little or no judicial oversight. Gridlock is low on the list of worries.

Immigration, for its part, is an area where there are serious gaps in federal power, which by constitutional text only extends to the narrow topic of naturalization. The rest has to be inferred from other provisions, such as the power to regulate foreign commence (which is a rather different thing). There is of course much gridlock on the topic, but it hardly seems sensible to say that the appropriate cure is to let the President act unilaterally on this issue, for which he was just slapped down, or to think that even his power of initiative would be able to break the gridlock. We have extensive laws in place on immigration today, and the reason why reform is so tough is that there is no consensus about what should be done. Chalk that difficulty up to current politics, not to some defect in constitutional structure.

Social Security is also huge problem, but the simple response here is that there was no reason for the federal government to get involved in this issue in ways that helped build up an unsustainable system, most notably through the Medicare and Medicaid programs. One can go further on this point. The huge battles over the scope of federal power had this central theme. Those in favor of its expansion, whether in labor or in agriculture, wanted to create strong federal powers so that they could impose monopoly and cartel restrictions on competitive economies. Old-fashioned Adam Smith warned against these dangers back in 1776, and I hope that Moe and Howell do not think that his insights were only applicable to small agrarian societies.

Nor do Moe and Howell gain any traction by playing the pollution card. The common law treated pollution as a tort governed by the law of nuisance back in 1787, and everyone recognizes that pollution can travel long distances, such that pollution that starts in one state can easily end in another. But during the 19th century the courts worked out ways to resolve these disputes between states, without invoking direct federal legislative power, under a set of decisions that is notable for its acumen and accuracy on a wide range of issues, of which Justice Holmes’s 1906 decision in Missouri v. Illinois is but one notable example.

The question is what is gained by the introduction of the EPA? Here the verdict is mixed to say the least. In some instances, it asserts jurisdiction over local matters that are far better left to local control. In other cases, it expands its jurisdiction unpardonably by invoking grotesque definitions of the navigable waters of the United States to cover dry land located many miles from the nearest river, the very situation at issue in Rapanos v. United States and Sackett v. United States. In many cases, it so expands the definition of harm and pollution so as to allow it to confiscate large swaths of land without compensation. Yet at the same time the EPA’s willingness to grandfather old plants and technologies creates huge impediments to the growth of new power sources, including new nuclear power plants. Simply positing a large federal government is often the problem and not the solution.

And so it goes on. Moe and Howell attack a straw man by assuming that anyone who opposes their position is rooted in a hopeless love of the past. In taking the dogmatic position, they make many serious blunders of their own. They assume that active government is the same as effective government, without once stopping to ask about what should be done about the risks of overregulation. They fall into that normative abyss because they remain consciously agnostic of the merits of particular substantive legal regimes. But that ethical indifference as to ends makes it impossible to develop an coherent theory of individual rights or government structures. They then compound their errors by speaking in glittering generalities about the vast problems that cry out federal regulation, without once asking how the federal government has performed in these areas.

No one should defend key pieces of the original Constitution just because it is old. But no one should attack it for that same reason. Moe and Howell have no real knowledge of constitutional history, which leads them to propose ill-considered structural reforms that only make today’s bad situation worse. The last thing we need to do today is increase the scope of the already bloated presidency. Why anyone thinks that an Obama, a Clinton, or a Trump somehow represents the national interest is beyond comprehension.