In the coming weeks Washington faces another budget showdown between Democrats and Republicans in Congress and then between Congress and the President. Sadly, whoever wins or whatever compromise is struck, the federal budget will remain not only bloated but grotesquely misshapen.
The reason is that the debate concerns only cutting discretionary spending, not reforming entitlements. Yet entitlements are the primary drivers of ever increasing spending. In contrast, discretionary spending can generate public goods that aid long-term prosperity. An economist would define the essence of a public good as one from which individuals cannot be excluded and where the use of the good by one individual does not prevent use by another.
National defense is the paradigm case of a public good. Scientific knowledge is another. Given that such goods provide benefits which for which the provider cannot receive remuneration, they will be undersupplied. And some kinds of infrastructure goods with lots of positive spillovers also are likely to be undersupplied, even if they do not quite meet the definition of a public good. The primary fiscal focus of the classical liberal state should be on the creation of such goods, because neither the family nor the market will do so in sufficient quantity.
Not all federal discretionary spending supports these kinds of goods, but a good deal does. For instance, spending for the NIH is declining, despite very substantial evidence that it pays off in longer and better life for citizens.
In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian. I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.
In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.
The Framers of the Constitution wanted to establish a more republican version of the English Constitution. They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature).
Recently, Adrian Vermeule had a review of the new book by Melissa Schwartzberg on supermajority rules – Counting the Many: The Origins and Limits of Supermajority Rules. I haven’t read Schwartzberg’s book yet, but Vermeule does discuss a number of arguments against supermajority rules.
One such argument is based on May’s Theorem. According to the Theorem, only majority rule satisfies four conditions on group decisionmaking. Two of the key ones are anonymity (the group decision treats each voter identically) and the neutrality (the group decision treats both outcomes the same, in that reversing the preferences reverses the group decision).
Supermajority rules satisfy the anonymity condition. Under ordinary supermajority rules, each voter receives one vote. But supermajority rules violates the neutrality conditions. Under a 3/5 supermajority rule for passing new spending, if a majority is opposed to the new spending, it gets it way and the spending does not pass, but if a majority is in favor of the new spending, it doesn’t get its way and again the spending does not pass. Clearly, this 3/5 supermajority rule privileges in a sense the decision against new spending.
Is this a problem? Advocates of May’s Theorem certainly treat it as one. But all that the violation of the neutrality condition shows is that there is a privileging of a decision (as compared to majority rule) and that this privileging needs a justification.
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…
Over at Balkinization, Gerard Magliocca talks about the norm of bipartisanship. He notes that supermajority rules, including the filibuster rule, operate to promote that norm.
In my own work (with John McGinnis), I have written a great deal about supermajority rules and how the bipartisanship and consensus that they promote can be essential ingredients of beneficial decisionmaking, especially when the decisions involve basic institutions such as constitutional provisions and key government programs, like Social Security or Obamacare.
While I recommend reading Gerard’s post in full, I do have questions about a portion of it. Gerard writes:
A distinctive feature of the Obama Administration is that there seems to be an extra-constitutional principle developing that says the consent of both parties is required for legitimacy. (There are some precedents for this, but let’s leave that for another post). The lack of bipartisanship is a crucial part of the criticism of the Affordable Care Act (“It was passed only with Democratic votes.”) An anti-partisan norm also explains why Chief Justice Roberts may have felt pressured to vote how he did in Sebelius (in other words, striking down such a law only with GOP votes would have been illegitimate.) Indeed, when I talk to non-lawyers, I’m struck at how important they think bipartisan agreement is as compared to how unimportant it is for lawyers. Hence my attempt in the Washington Post op-ed to translate that into a notion of “settled” law.
Despite my attraction to supermajority rules and bipartisanship in many situations, I am not sure that I think that bipartisanship is a necessary condition of legitimacy. I suppose the question here is how one defines legitimacy. Does it mean acceptance by both parties or all major groups? Or does it mean proper in some public policy or moral sense? Certainly, supermajority or bipartisan enactment is not necessary to legitimacy in the latter sense, since majority rule and enactment by one party may be acceptable in a host of circumstances. Nor is it necessary in the former sense of legitimacy, since the parties will sometimes accept laws that are passed simply by majority rule and the other party.
My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November).
The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just on our evaluation of the Constitution, but also on the fact that it was enacted through a beneficial supermajoritarian enactment process that generally leads to desirable constitutional provisions.
While the book offers this new argument, it does quite a bit more, exploring various issues of originalism based on the book’s overall theory. First, the book offers a new theory of interpretation, called original methods originalism, which argues that one should interpret the Constitution based on the interpretive methods that the enactors would have deemed applicable to the Constitution. This interpretive approach is defended both as the most accurate way of determining the Constitution’s meaning as well as the method that will lead to the best consequences.
Over at the Volokh Conspiracy, Ilya Somin argues that “it isn’t inherently hypocritical for liberal democrats to – in some cases – support the overthrow of an elected government.” The reason, Ilya writes, is
because democracy is not the only important liberal value, and not always the most important one. At the very least, the liberal tradition, broadly defined, also values individual freedom, equality for women, toleration of religious and ethnic minorities, economic progress, and the prevention of mass murder, slavery, and genocide. Most of the time, democracy promotes these other liberal values better than the available alternative regimes. But not always. Democracy and liberal values conflict in cases where public opinion is highly illiberal and cases where the democratic process brings to power parties that intend to shut down future political competition. Both problems are relevant to the present situation in Egypt and at least some other nations.
I agree with Ilya, but there is more going on here. Democracy is a vague concept. A single election can be thought of as democracy, but few thoughtful people would defend it as such. Democracy, even if it is not necessarily liberal democracy, still requires a system whereby the people’s will is regularly consulted and done in a fair process. Morsi instituted decrees that purported to be unreviewable by the courts. Such absolute power is not the way to have democracy. Morsi’s defenders have said little about this.
But there is another aspect of both democracy and consensual government, and that is compromise. If a majority of the people or the legislature favors a policy, that does not necessarily mean it should be instituted, if a large minority strongly disapproves of it. This is a tricky issue, but consensual government involves compromises and it appears Morsi was having none of it.
Recently, Mike Ramsey discussed the letter of a host of distinguished scholars arguing that the Constitution requires that a majority of each house have the power to change its rules (at least on the first day of the legislative session). Therefore, the Constitution requires that a majority of the Senate be able to modify or eliminate the filibuster rule this month.
As Mike noted, I have argued for a similar position before. First, there is this op ed where John McGinnis and I conclude:
The . . . constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.
Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.
These conclusions are discussed more extensively in this Yale Law Journal article entitled “The Constitutionality of Legislative Supermajority Rules: A Defense.” They are also elaborated upon in a variety of articles that we have published, such as this one.
My view differs in two respects from the Scholars’ Letter. First, I believe that a majority of the Senate can at any time vote upon a change in the Senate Filibuster Rule. There is no particular reason why the change needs to be made at the beginning of the session.
Second, I disagree with the claim that the power of a majority of the Senate to change the rules is based on the Framers’ belief in democracy. The letter states:
It is a pleasure to comment on Sandy Levinson’s Jeffersonian Proposal for the Constitution (as well as on Richard Epstein’s brief comment on it). I find myself somewhere in the middle in this debate. I agree with Sandy that our Constitution should be revised, but I agree with Richard that many of the changes Sandy wants to make would not be good ideas and that an unlimited convention would be a bad idea. Rather than convening a convention that would replace or radically revise our constitution, I prefer to use the amendment power. I am an originalist and so I favor…