In 1944, the Hungarian moral and political philosopher Aurel Kolnai (1900-1973) wrote an essay that is indispensable reading for anyone wishing to understand today’s culture. Whether you are pondering the Left/Right split in our politics, the riddle that is Pope Francis, or the peculiar character of Western civilization and its ability to forestall its latest enemies, Kolnai’s “The Humanitarian Versus the Religious Attitude” will help.
The next two Republican presidential debates, including this evening’s, will focus on the economy, a testimony to the weakness of our recovery from the 2007-2008 financial crisis, the continued relevance of James Carville’s campaign advice to Bill Clinton over 20 years ago (“It’s the economy, stupid!”), and the all-but-universal assumption that American Presidents can, should, and must create the conditions for widespread prosperity.
In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.
I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way. Here I will be talking about the U.S. Constitution.
The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree. Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution.
A veritable avalanche of writings by libertarians I know and respect offer claims about libertarianism, immigration, and open borders. Apparently as a libertarian, I believe that countries should not limit entrance and exit across geographic boundaries. Alex Tabarrok says the argument is economic and “moral” because “law makers and heads of state,” and presumably misinformed citizens, prevent someone from immigrating in pursuit of work. According to Bryan Caplan, we could double our economic productivity with open borders and address concerns by limiting access to welfare until a threshold of tax payment is reached (a la Milton Friedman). Michael Huemer believes we are not entitled to limit access to valuable resources or to act on the aggregate preferences of citizens, since such policies may harm potential immigrants.
It looks as if the Republicans are stuck with the strange truth that, now more than ever, their leading candidates are Ben Carson and Donald Trump.
The perception of the members of a key focus group was that Carson is “wise” and a “gentleman.” He might be more immune than Jeb to the Trump allegation that he’s “low energy.” While he did seem nervously lacking in assertiveness during the first two debates, his tone is inspirational on the stump and at times on the talk shows. He excels at quietly but firmly articulating American exceptionalism as a mixture of economic liberty and Biblical faith. For better and worse, Ben Carson isn’t much like Jeb Bush.
One of the most telling debates of the twentieth century was the socialist calculation controversy. The question, broadly speaking, was whether the government could figure out how to set prices for goods without the market. Frederich von Hayek told socialists that such a feat was impossible, because the market provided information that no centralized authority could replicate. The fall of the Soviet Union provided a real world confirmation of Hayek’s academic insight.
Nevertheless, today much of our debate about growth and inequality still depends on our confidence in government calculations. In a very interesting article in the Wall Street Journal, Hal Varian, the chief economist of Google, claimed that productivity and economic growth were severely understated, because government statistics are not capturing many of gains in the information economy. One problem is that government only measures something as part of GNP when people pay for it. But much of what Silicon Valley produces is free or nearly so. Google’s search engine puts the information of the world at our fingertips. Yet this value is not fully captured.
Government measurements of productivity and growth were designed for the industrial age, not the information age, where the dematerialization of the world created by information technology helps create more and more free goods.
This past weekend (October 23-24), George Mason Law School’s Law and Economics Center, in cooperation with the Council on Public Policy (a German think tank) and the Federalist Society, concucted a Transatlantic Law Forum on “The Administrative State and its Law.” Excerpts: Scholars, pundits, politicians, and even Supreme Court Justices have come to lament that the administrative state—ill suited to the country’s constitutional culture in any event—appears increasingly beyond effective political and judicial control. Among the proposed remedies, perplexingly, is a quintessentially “European” product: bureaucratic legalism, either through more specific legislation or more aggressive judicial controls (or both). All the while,…
My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
Alexis de Tocqueville arrived in the United States in the late spring of 1831. His official business was an investigation of American prison reforms as a potential model for France, but his gaze was considerably broader and deeper. Tocqueville’s nine-month visit resulted in Democracy in America, a towering achievement that looms even larger in a time like ours, when political attention spans seem to last no longer than the latest trending topic.