With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.
No one likes being in a prisoners’ dilemma. The tragedy of the prisoners’ dilemma, as it were, is that all the players in the game can see the cooperative, Pareto-superior outcome, but they can’t reach it, at least not without changing the game. They can’t reach it even though it’s right there, seemingly within grasp, and even though they all agree they’d all be better off if they did reach it.
“Crony capitalism” is the idea that politically well-connected owners of productive factors – land, labor, capital, entrepreneurial skill – can use the government’s coercive power to limit competition and increase their return on those factors. More generally, it’s the use of the coercive powers of the state to redistribute resources to specific groups and their associates.
As Gordon Tullock was fond of pointing out, while government protection is not a factor of production, it can be a factor of profit.
As a result of having fewer popular votes than Hillary Clinton, as well as his controversial candidacy more generally, there’s some discussion whether Trump’s Electoral College electors could vote for someone else for president. Given that somewhere over 100 electors throughout U.S. history have voted for candidates other than those they were elected to vote for, it’s an interesting constitutional question even outside the contours of this particular election.
The main value of the Electoral College today is that it generates clear winners when the popular vote is unclear. One might fairly ask how the popular vote for president in 2016 was not clear – Hillary Clinton received over 500,000 more votes than Donald Trump in the most current count, after all. And that’s true enough. But majority rule is not about who gets the most votes, it’s about who receives a majority of the votes. And Hillary Clinton did not receive a majority of the popular vote.
Despite President Obama having the opportunity to remake the U.S. Supreme Court with one nominee, Donald Trump will need to wait for the same opportunity. Not because Congress will confirm Judge Garland, and not because Congress won’t confirm Trump’s nominee, but because of the ideological configuration of the Court, and where Justice Scalia fell in that current configuration in relation to the other justices.
Last week I discussed why bicameralism is not necessarily a status-quo preserving institution, at least in the sense that conventional wisdom suggests bicameral legislatures produce less legislation relative to analogously situated (however defined) unicameral legislatures.
Commentators often ignore that in “strong” bicameral systems, as exist in the U.S., “second” legislative chambers can initiate legislation itself as well as kill legislation approved by the other chamber. Depending on how much legislation each chamber initiates, and on cross-chamber kill rates, it’s entirely possible that a bicameral legislature will enact more legislation than a similarly-situated unicameral legislature.
To be sure, it is a bit of a bait-and-switch to purport to consider the impact of veto players on legislative production and then initially discuss an institution that can initiate legislation as well as stop legislation. So let’s now face the original question fairly: What about institutions that can only veto legislation without also having the power to initiate legislation? Think of judicial review.
Conventional wisdom is that separation-of-power political systems are inherently conservative in the sense of being a status-quo preserving institution. As one adds veto points to the legislative process, the thought goes, less legislation will be implemented relative to a system with fewer veto points.
Most people think of judicial review in the way that Justice Owen Roberts described it in a 1935 Supreme Court decision:
The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question.
It seems straightforward. A judge takes a law, sets it next to the Constitution, and determines whether the “latter squares with the former.”
The argument in The Federalist that the Constitution seeks to control majoritarian excess is well known. It seeks to control the influence of state-level majoritarian factions by nationalizing some policy areas for national rather than state control. And it creates national-level checks and balances, not to be anti-democratic, as so many critics would have it, but as a political version of “count-to-ten-when-you’re-angry-before-saying-anything” strategy to avoid taking action in a fit of passion that we might regret later. So important are these topics that their consideration have tended to overshadow a subsidiary theme developed at length in The Federalist, that of acquiring…