When it comes to voting by citizens in a democracy, there are four essential questions, as I see it, in marrying up the “should” and the “is.”
Not much has been said yet about the fact that the man now giving Hillary Clinton a run for her money in the Democratic primaries, Bernie Sanders, is a self-proclaimed socialist with a picture of Eugene Debs hanging in his Senate office in Washington. Even when his socialism is discussed, for example in a recent Politico article by David Greenberg, more time is spent describing the history of American socialism and relatively little explaining how Sanders fits in.
In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper. Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:
How is Originalism Self-sustaining? Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.
One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes (link no longer available), an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline. One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture. That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture.
Recently, I read for the first time Gordon Tullock’s masterpiece The Transitional Gains Trap, first published in 1975. In the piece, Tullock talks about a tragedy that often results from government regulation or spending. The government takes an action that initially benefits a particular group, although at the expense of imposing an inefficient policy on the public. But over time, even that special interest group will not benefit from the government program. Yet that group will fight hard to prevent the program from being eliminated, since eliminating it will make that group worse off.
For example, a city government may establish a taxi medallion system that, by restricting entry into the taxi business, will provide large benefits to the initial generation of taxi cabs. This medallion, of course, will harm the public, since it restricts competition. But over time, those who purchase the medallions will pay the market rate for them and therefore will not receive any special rents. Yet, they will fight to prevent the medallion system from being eliminated, since these owners will be harmed by such elimination. Thus, the city will be stuck with an inefficient medallion system that will be difficult to eliminate. Eliminating the medallion program will harm existing taxis, many of whom did not lobby for the system in the first place and do not receive supercompetitive profits.
Tullock’s basic recommendation is not to get into these traps, because they are very hard to get out of.