Monday, February 11, 2013

EconResponse: Seidman on the Constitution

This past week's EconTalk was with Louis Seidman about a book he wrote about the Constitution, and the fact we don't need one, and probably shouldn't have one. (That's the weak form; I think he actively suggests we should not have one, and having one is bad, but he sort of oscillates around that.) This is a really good EconTalk, and everyone should really listen to it, as I think he misses the point of constitutions and what their purposes are, but makes some really good points despite that.

I am going to skip the summarizing and assume you are going to listen to the podcast, partially in the interest of remaining (blessedly) short, and partially because the talk remains focused enough that there is really just one point to discuss.

Long story short, Seidman claims that the United States Constitution, and constitutions in general, are pointless at best, and authoritarian at worst. The first point he supports by demonstrating that legislators often completely ignore the C., and often times in ways that are good points. For example, the Louisiana Purchase was pretty certainly not constitutional, but might have been a good thing to do. Likewise, many things the Federal government does are blatantly unconstitutional but it doesn't seem to matter because the C. can't order people around or control troops etc to enforce itself. Other countries don't have constitutions and they don't explode, so how do we know that they are useful?

The second point is that saying "You can't do X because it is unconstitutional!" is rather authoritarian and anti-thought, and that you shouldn't rely on that but rather try to convince your interlocutor of your points. That's the nutshell version.

So, here is the over all point Seidman misses I think: the point of constitutions is to take certain matters off the table entirely. Which matters are key, and some constitutions are better than others in this regard, but the important point is that having every issue up for debate is dangerous.

Take for instance slavery, one of the glaring omissions of our C. Imagine if every 50 years or so we had to have a debate about whether or not to reinstate slavery. From a purely economic perspective this would be quite wasteful as you would have people employed in studying and coming up with reasons for and against slavery, presumably smart people who could be doing something more productive. From a terrifying public policy perspective, what happens if the third or fourth time around there isn't a good orator on the anti-slavery side, but a brilliant and charismatic spokesman for the pro-slavery side? Sooner or later this is going to happen, which means sooner or later slavery will come back in vogue, even if under a slightly different name.

If that example seems far fetched, consider the debates between J.M. Keynes and F.A. Hayek. Arguably Hayek won the intellectual debate, but Keynes just smashed him in the realm of public opinion, due in large part to his relatively simple message and massive personal charm. If English hadn't been Hayek's second language, or Keynes had a stutter, things might have been very different.

The roots of Seidman's misunderstanding of this point is his misunderstanding of collective vs individual action, and his seeming conflation of negative and positive rights.

He often says "we want" or what "we can do" when describing the actions of governments, but the key point he thus misses is that governments are made of individual people, and even when acting as representatives have their own incentives and goals that do not, and can not, align with every one of their constituents. While it is certainly possible that this works out fine, it is more likely that politicians will use this to their own ends. Constitutions limit their ability to do this.

Counter intuitively, however, this defection by governmental agents is not the greatest danger inherent in governments. Rather, it is when governments do exactly what their voters want in times of passion that cause the most damage. By his own admission late in the podcast he says he does "not generally take a position on unrestrained majoritarianism" (right around 47:30). However, that is exactly what constitutions are meant to do, limit the harms that the majority can inflict on minorities and indeed themselves, just because it seemed like the best idea at the time. No one wants to be in a position where they have to argue persuasively as to their right to live with a lynch mob who thinks otherwise.

That last point is the junction of his misunderstanding of state action and the nature of rights. He often speaks in terms of positive rights, using phrases such as "you have to do X" instead of negative of the form "you can not do X to me." In so far as a constitution enumerated positive rights, I would agree that it would be authoritarian. However, negative rights are most certainly not authoritarian, as they do not require actions, but rather demand that you not do certain ones. Requiring that the government not kill you without a trial is not authoritarian, it limits the authority of government. Again, is it really preferable that we have to persuade others that they don't have the legal right to kill us? Consider the recent drone strikes against US citizens without any warrant or judicial review, and how Obama has yet to be thrown out of office before you decide that you can trust your fellow citizens to uphold your right to life of their own accord.

Also, as an aside, Seidman often makes the case that while aspects of the Constitution made sense 200 plus years ago, arguing that the decision that was made then still applies is authoritarian. He does not, however define at what point in time such decisions go from the legitimate will of the people to authoritarian nonsense. Which is to say, how often should we be willing to scrap everything and start over? 240 years is apparently too long, so is it 150? 50? A few weeks?

The US C., for all its many faults, seems designed to be a permissive rule set of what the government can do, which is to say what the national majority can do, and taking everything else off the table at the national level. I think Seidman is correct that ours has some serious issues, and only perpetuates as well as it does due to the fact the people seem inclined to agree with the general idea, but this is not due to an inherent flaw in the overall concept of constitutions, but with this particular manifestation. Seidman's lack of clarity on the subjects of positive and negative rights and governmental action (in addition to what level that action occurs on, which I didn't touch upon) prevent him from seeing that there have to be objective laws that limit the actions the government or a majority can take, if only because at the time of decision we can not rely on cool headed reasoning to restrain ourselves and our agents.


  1. Hmm...where to begin...

    "the important point is that having every issue up for debate is dangerous."

    Are you arguing that judicial law and precedence does not restrain debate on many issues? Over the past 200+ years hundreds of thousands (millions?) of laws have been passed within the US and many have been tried in court. Those decisions inform future politicians and judges of what the legal boundaries are. Once an issue is raised and ruled upon, their are not frequent challenges to that same rule. If so, the case moves up through the legal system until eventually the Supreme Court offers a final ruling, which can't be appealed. As Seidman points out, countries without constitutions have reasonable legal systems. The constitution may take certain topics off the table but the legal system alone could do the same.

    Moving on, you mention that constitutions "limit the harms that the majority can inflict on minorities and indeed themselves." Does it? If so, why do so many people (specifically Libertarians and Austrian economists) complain about the harm constantly being done to the minority (i.e. corporate bailouts, tax loopholes, etc)? It seems that many people feel the constitution doesn't limit governments nearly enough.

    Now consider the UK or Israel, who don't have constitutions. Does it appear the governments are engaging in unrestrained majoritarianism? The whole point of Seidman's argument is that a functioning legal system and system of check and balances can restrain government regardless of whether or not a constitution exists. If people today believe aspects of the constitution should be altered, it's still functionally possible though extremely unlikely in practice. Instead, imagine that parts of the constitution were passed into law (the rest thrown out) and upheld by the highest court. Would it be that much easier to overturn the laws?

    Turning to the comments on authoritarian rule, I think you make a decent point that it matters whether the laws are positive or negative. Unfortunately this can get blurry in some cases. For example, take the right to bear arms. Certainly this does not give the right to use those arms against others willingly, nor does it explicitly prevent it. Furthermore, should it include all types of weapons, even though the founders could not possibly have envisioned the technological progress in armed warfare over the past couple centuries. If the answer is yes, I think one can claim a type of authoritarian rule.

    There are clearly holes in Seidman's argument but I think the prospect of unknown change proves too much for most to openly consider the proposition of living without a constitution. Considering the number of other examples and obvious deficiencies of our current constitution, I remain unconvinced that Seidman's proposal would not be preferable.

  2. *Hannah Mead must not be a very good editor if she allowed her own name to be spelled incorrectly

  3. In Hannah's defense, I added that part after the did some editing for stupid :)

    I think on the first point that you make the same mistake Seidman does, though certainly I am possibly not being very clear. There are different levels of "open for debate." Judicial review and precedent are one such level, somewhere between "Totally open" and "Not open at all, no matter what." I would argue that many aspects should fall into the judicial review and precedent tier, and many others should always be open, but that certain should be entirely forbidden. That last group, totally forbidden, should be built into the constitution of a nation. Certain negative rights should be in that group, as well as definitions of what a certain level of government can do. An example of the former is due process clauses, and of the latter Hayek's suggestion that any law passed apply equally to all people. (I think it was Hayek, but the point was that if one person gets paid to not plant crops, everyone should.)

    While I think the UK isn't terribly dysfunctional despite not having a constitution, I think they could be a LOT better off. Considering their place in history, their standards of living are pretty terrible, and their government pulls some really crazy stuff periodically. For instance, not only are guns pretty much 100% illegal, in many places carrying a knife is as well. This hasn't done anything for the crime rate, yet the government continually pushes to remove people's abilities to defend themselves from those who are not troubled by the law.

    As to your second point, yes, the US Constitution is annoyingly vague in parts. I didn't want to get into the specifics of why because that would be a small book, and as you point out my posts are already really long.
    However, your point that the right to bear arms does not give the right to use those against others or specifically forbid it is sort of strange. Why does it need to? Saying the government has no right to prevent you from owning and carrying weapons does not say it can't make it illegal for you to shoot other people or the like. Is it necessary to say that though you are allowed to own them you are not allowed to murder people? There are already rules against murder.

    Perhaps it is important to clarify that constitutions define how governments are allowed to interact with other levels of government and ultimately the people?

    A little later I will go into the problems I see in the Big C. and how I think they could be fixed, but I want to run a little contest first.

  4. "I would argue that many aspects should fall into the judicial review and precedent tier, and many others should always be open, but that certain should be entirely forbidden. That last group, totally forbidden, should be built into the constitution of a nation."

    Just to clarify, you recognize that even constitutional laws are open for debate although they're perhaps the closest to "not open at all." In practice, how distinguished is the "not open at all" category between constitutional laws those determined by judicial review or precedent. My claim is that there exists little practical difference and therefore the same laws you value in the constitution could and should be upheld even without it.

  5. Well, maybe. I agree that often in practice there is little practical difference, but I would say that is more a function of the form of the Constitution of the USA and not necessarily how it has to be. I would say a proper constitution would have some things clearly entirely off limits, beyond even amendment, and others as amendable.
    Here's a hint: I think constitutions need to have clauses defining punishment of those legislators that break them.

  6. I must say that Prof. Seidman's arguments are rather of the, "it ain't perfect so lets scrap it all" variety. His first premise seems to be that once a limitation is in the Constitution there is no discussion or rational review; this is simply not true. The required level of agreement is higher to amend than to legislate; but both are possible and both achievable by discussion and convincing arguments. I can not see the Constitution as written being an insurmountable impediment to the politically aggressive. How long did it take the Founding Federalists to enact the Alien and Sedition laws? I seem to recall the ink was barely dry. Similarly, FDR seemed perfectly capable of imprisoning thousands of US citizens of Japanese decent. Lincoln confiscated property, etc, etc. It would seem that the Constitution may not be the roadblock to political action some believe it to be. Unfortunately it is not all powerful and limiting, but all too weak and open to expansion. I would like to see more discussion of how to strengthen and expand its limits on government rather discuss further eviscerating it.

    1. This sounds very similar to the points made by Roberts during the podcast. Similar to Seidman, I find it strange to see such strong support for the constitution as a means of blocking political action combined with recognition that it fails to live up to that task in the desired manner. I would argue (and Seidman might as well) that the constitution in its current form makes the desired expansion and strengthening a practical impossibility (nearly on par with its evisceration). Is it that hard to imagine a non-constitutional system that might restrict political action and allow more easily for the expansion you seek?

    2. It actually is pretty hard for me to imagine, yes. Generally I see those who exercise power looking for ways to expand and generalize that power, not constrain it. I think Seidman's point about how infrequently the C. has been amended is actually a strong argument in favor of my view: politicians seem quite willing to simply legislate what they want instead of the more arduous task of changing the rules to be what they want. Similarly, Congress has not formally declared war since the first Gulf War as I recall, and just lets the president do whatever. (I might be wrong, but I think the second Gulf War was merely passed by resolution approving the use of force, not an actual declaration of war.) My guess is that neither you nor I will see another constitutional amendment in our life times, and most likely not another formally declared war.

      In general though, my theory of government is that those in power tend ever towards expanding that power until something forces them to give it up. The First Baron's War in England or the American Revolution come to mind. Then you start from a place of limited governmental power, and it starts to grow anew until another situation makes that untenable. As Jefferson said, "the tree of liberty must occasionally be fertilized with the blood of patriots and tyrants."

    3. To pick up where you left off. The current progressive trend in Governance, in the West, is to give more and more "stuff" while taking more and more freedom. In fact there is a growing demand that our Constitution, being a largely negative one, prohibiting power and actions by Government, is at bottom wrong. Progressives demand a Constitution of positive rights, i e, a right to a job, a right to free public education, a right to a decent dwelling, etc, etc.

      Were we to scrap the current Constitution and convene either a new Constitutional Convention or simply cut ourselves free of the Constitution and go on case law and agree precedent I believe the end result wold soon be the same. we would end up with a Government that promises us every thing we want and empowers itself to take whatever we have.

      Better a partially effective shield against tyranny than the promises of a Government capable of giving and taking as it and 51% of the population at any given time demands.