Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.
Public choice theory, which applies to the realm of politics the rational-actor postulate of economists, rightly enjoys a high regard among advocates of liberty. From voting habits to inefficient, Kafkaesque bureaucracies, to the strength of special interest lobbies and rent-seeking behavior, public choice has shined a bright light on the need to affirm limited government and political freedom. It is politics, to use James Buchanan’s phrase, “without romance.”
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.”
A while ago, I was driving back to Indiana from the place of my birth and America’s most dysfunctional city, Chicago. As thoughts of Greek-style pensions for public employees, exorbitant property taxes, and sky high murder rates were passing through my consciousness, my car began emitting a strange noise on the expressway. It grew louder, and my stomach sank. It was a flat. The car wobbled onto a nearby exit ramp, and I slowed to the shoulder cursing my lousy luck.
Thankfully I had just renewed my Triple-A membership (after debating to myself whether or not the fee was worth it), so my luck held in the end. The incident led me to ponder the fact that it would not have occurred to me in my distress to try calling a real estate developer, a neurosurgeon, or a former CEO for help. That is to say, anyone lacking a background in auto repair.
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, 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.
Two giants of the intellectual right died last year, Robert Bork and James Buchanan. The first will be forever identified with originalism and the second with public choice. The Law & Economics Center of George Mason Law School invited me and other scholars to commemorate their work and that of Armen Alchian, a fine economist and price theorist who also died in 2013.
Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.
Here is a bit from the introduction of the paper:
Over at the Independent Review, they have a symposium on James Buchanan, who passed away last year. Buchanan was a giant. My own work on supermajority rules (with John McGinnis) was greatly influenced by that of Buchanan (and Tullock). In this article, John and I built upon Buchanan and Tullock's The Calculus of Consent to argue that supermajority rules should be used for various types of decisions, including most importantly the decision to enact and amend constitutional provisions. John and I used a different model than Buchanan and Tullock but reach similar conclusions. In our work, we argue that supermajority rules should…
Our feature review this week is by Nathaniel Peters on Robert George's Conscience and Its Enemies: George next offers an account of human morality based on practical reason’s discernment of the data of our experience. To put it more simply, he examines what people choose and why they choose it, those motives for which we act in pursuing the good as human beings. Those things that we choose in our pursuit of the good for their own sake he calls intrinsic or basic goods. These include knowledge, friendship, marriage, religion, aesthetic expression, and play. Embracing these goods—pursuing knowledge, being a friend,…
One of the most remarkable characteristics of our friend and mentor, James Buchanan, who passed away on January 9 this winter, was his ability to rethink a question from the foundations unencumbered by what he had written on the topic before. We were fortunate to witness Buchanan’s multiyear rethinking of the foundational question of whether a market economy is stable. (The lectures were recorded and posted on YouTube: 2010, 2011, 2012. The papers themselves can be found on the Jepson School web site: 2010, 2011, 2012.)
The project began after the economic crisis with the question of why Chicago-influenced economists got things so badly wrong.
The next Liberty Law Talk is a conversation with Randy Simmons on his recently revised and updated book, Beyond Politics: The Roots of Government Failure. Serious policy analysis frequently begins with the unspoken assumption that government must fill the gaps in the marketplace. Markets are vastly imperfect and require for their proper functioning the precise, i.e., perfecting, commands of the regulatory state. Not content with this narrative's iron-clad belief that government rules and regulations live and move in rational operation, having their being serving the commonweal 24/7, Simmons provides a comprehensive way to think about the giant suck of political…