The United States Constitution is often lauded as the epitome of freedom. And indeed, the U.S. has for most of its history sat far towards the "more free" end of the spectrum of actual governments. The original Colonies, Articles of Confederation, and the first hundred years of the United States Constitution were, with some glaring exceptions, among the most libertarian of governments in human history, and far more libertarian than the modern United States. The actual text of our Constitution, read straightfowardly under standard English definitions, or read as most lawyers read it when enacted, is (with the exception of the Sixteenth Amendment, the income tax) a fringe libertarian document. Of all the 2008 Presidential primary candidates only the libertarian Ron Paul could credibly base his platform on the actual text and original meaning of the Constitution. The positions of all the other major candidates, as well as the interpretations of most of our Supreme Court justices, depart very far from the actual text in its original meaning.
But our Constitution is nevertheless deeply flawed. In a number of ways it facilitates our slow slide into socialism and tyranny. It is rather easy for Congressmen, Presidents, and federal justices who wish to interpret it as granting broad powers and narrow rights to do so, and they have been doing so ever since the Constitution was enacted. A wide variety of other constitutional mechanisms and institutions would do a far better job at slowing and reversing the death of liberty in the modern world.
Much of the early liberty of the American Colonies and the early United States was, as Adam Smith observed, due to low exit costs. Farming was the dominant economic activity, and the availability of free land out West made it relatively easy for a farmer to move if the local conditions got too oppressive. Officials had to preserve liberty to keep their populations. Nevertheless, our Constitution among other factors kept the U.S. more libertarian than Russia, which also had a large frontier. Our Constitution slowed, but did not stop, the aggrandizement of power into effectively unaccountable and increasingly oppresive forms. While there are many more ways to make it worse than to make it better, and this author does not recommend constitutional convention or military coup, those trying to set up new constitutions, or amend their old ones, should observe that there are a number of crucially important ways in which the U.S. Constitution can be improved upon.
Speaking very broadly, the general problem with our Constitution is that it allows the rise of a fully sovereign and monolithic federal power. Such an entity inevitably aggrandizes its power and ultimately cannot make credible commitments to protect property or any other rights or powers that it covets for itself. This is a common flaw of modern constitutions, but there are a number of protective mechanisms which these constitutions do not employ, or employ incorrectly, that could be brought to bear to correct this general problem.
A bit more specifically, here are most of the major flaws in the U.S. Constitution:
(1) The legislative branch is too powerful: several of the grants of power in Article I are too broadly worded and the rules for interpreting them are insufficiently strict. Once legislatures have achieved broad powers, they can hardly be expected to vote to give those powers up. It's a one-way ratchet towards socialism and tyranny.
(2) The executive branch is too powerful: executive duties are not well defined and the non-delegation doctrine is not enforced, allowing the rise of permanent unelected lawmaking bureaucracies. (In many practical ways the real constitution the post-New Deal U.S. operates under is the Administrative Procedures Act, augmented by things like Chevron deference).
(3) There is far too much use of elections and far too little use of lotteries. A number of officials should be chosen by lottery (as in ancient Athens) or by a sequential election/lottery cycle (as in the Venetian Republic). Lotteries can be very good at solving public choice problems, such as the problem of concentrated lobbying during elections which trump widely distributed preference.
(4) One of the two gravest defects lies in how courts are structured with respect to the constitutions they interpret. A basic design pattern for good government is that officials should not be interpreters of their own power. Allowing federal courts to interpret federal powers and state courts to interpret state powers has led to inevitable aggrandizement of the powers of both: to broad interpretations of power-granting clauses. Vague constitutional language, which is practically inevitable, would not lead to tyranny if the judiciaries who have final say interpreting these clauses did not have incentives to expand these powers. This effect is exacerbated by allowing the legislature and executive to choose the judges. I am afraid that, for example, Professor Barnett's proposal for convincing federal courts to (in many ways return to) libertarian interpretations of our Constitution, desirable as such interpretions are, is nevertheless futile. Incentives operate to select judges who profess broad interpretations of power, and while sitting on the court for judges to further aggrandize governmental power. Our judicial structure is another one-way ratchet towards tyranny.
A much better (but hardly the only better) proposal for selecting judges: select judges for lower courts by lottery from among lawyers who have scored in the upper percentile on the state bar exam and have been practicing for at least 5 years. Select judges for higher courts by a lottery over the judges of lower courts who have at least five years experience on the bench. Judges can still be impeached and removed for by legislatures or independent tribunals for egregious illegal behavior, but the executive and legislature play no role in selecting judges in the first place. This makes the judiciary far more independent of the executive and legislative branches.
The basic structure of courts in the American colonies was far better than our structure under the Constitution. There, the Privy Council, not colonial courts, had the final say in interpreting colonial charters. Being more dependent on Parliament and the Crown than on the colonial legislature, it had no incentive to aggrandize the power of the colonial legislatures. There were also a number of flaws in colonial government, including deep flaws in the British constitution that allowed the rise of Parliamentary sovereignty, which both compromised the independence of the Privy Council and trespassed on colonial legislative powers. There was also the practical problem of distance that made appeals to the Privy Council in London far too infrequent. But the basic appeals structure was far superior to that of our current Constitution. The colonial court structure will work far better now without the delay problem and if the highest court is not itself tied to a legislature.
(5) The other of the two gravest defects is the lack of unbundled political property rights. Federalism and separation of functions are two very good, indeed crucial, features of the Constitution, but they are insufficient for protecting liberty. Unbundled rights to engage in narrow forms of coercive legal procedure are often a far better way to distribute power than hierarchical federalism and separation of powers in an entity that is supposed to be in totality sovereign. The gothi of medieval Iceland, often cited by anarcho-capitalists, were an example of a political property right. Medieval and Renaissance England was a world full of polycentric, or highly distributed, political property rights, but these were swallowed up by legislative powers in colonial America. We must revive this very important and legally mature method of distributing political powers. Many legislative, executive, and judicial functions should be granted to private entities as political property rights, with the jurisdictional boundaries and procedural standards defined in those rights to be enforced by an extraordinary court independent of all other governmental entities.
(6) Insufficient protection is given to, and scope allowed for, choice-of-forum and choice-of-law clauses. Much, though by no means all, law could be entered into by contractual agreement, allowing for healthy forms of legal competition in certain areas, such as contract and family law.
Wow! Your posts just keep getting more brilliant.
Yeah, I'm enjoying them, too. Keep up the good work, Nick! And do please let us know if you collect and publish your work on jurisdiction-as-property. I plan to return to polycentric law issues, soon, approaching them by way of a theory of constitutional interpretation, and I'll probably find it useful to cite your writings.
I've been thinking about what you said about substantive and procedural law, and it seems to me that another major problem with the Constitution is that it's almost all procedural. We've reached the point where the Constitution is regarded as saying whatever the Supreme Court claims it says, and future Supreme Court justices must promise they will claim the Constitution says things it clearly does not, and this is generally regarded as ok because proper procedure is followed.
For example, Congress has used its power to tax in order to de facto prohibit things it acknowledges it does not have power to explicitly ban. If the proper purpose of a tax is to raise revenue, then any "tax" which exceeds the revenue maximum is an abuse of the power to tax. I'd like to see that point made explicit.
spanker and Tom, thanks much.
George: another major problem with the Constitution is that it's almost all procedural...future Supreme Court justices must promise they will claim the Constitution says things it clearly does not, and this is generally regarded as ok because proper procedure is followed.
It's also regarded as OK because it's compatible with the incentives of all the major players in the federal government: Congress, the President, the agencies, and the justices themselves. The public regards it as OK because it believes the federal press releases it gets via the mass media. We now live in a world that habitually looks on the federal government as "the government", with its legitiamte subject matter being any matter raised as a national concern by the mass media, which politicians parrot.
Article I Section 8 is supposed to be a scheme of enumerated substantive powers, a finite set of powers beyond which Congress may not legislate, and indeed the Supreme Court still declares that this is the case.
You cite one of the three big loopholes in the scheme: the taxing power. I think you mean legislating via discriminatory taxes (e.g. to effectively ban stuff with very high taxes), tax credits, and the like. (There's also forcing states to legislate via conditional block grants to states, which I cover below).
I don't know how the courts could set a revenue maximum, as budgetary needs vary and are a core competence of legislatures, not judiciaries. It would give the federal judiciary far too much power if it could veto taxes or budgets. But perhaps a jury trial that cannot be appealed, except to another jury, might work. A class action lawsuit by any taxpayers who object to a certain tax rate. All based on a constitutional amendment that all taxes must be only a "reasonable" fraction of the price or value of something. But then, you might pull up a jury of anti-smoking people who find a 200% tax "reasonable." So this hardly guarantees a solution to the problem. Perhaps the amendment could be worded to require an economic analysis of a rate that gives maximum revenue, beyond which the federal government may not go, and the trial would consist of dueling economics professors arguing over what the maximum rate is. (Effective bans produce far less than maximum revenue, per Laffer). Hardly perfect, but might work much better than no limit at all.
Quite related is the spending power. It's the most ancient legislative power. Parliament, which originated as a group of rebellious feudal landlords (whose collective rent revenue was far greater than the king's), used its ability to bribe the king with tax revenues to usurp authority to make general laws in the first place. Now states are being bribed by Congress with lucrative income tax revenues to make certain laws otherwise beyond federal power, as you point out.
The other big loophole in Article I powers is the power to regulate "interstate commerce." For many decades this just meant interstate water navigation and implied a restriction on states to not regulate interstate trade. Then federal commerce power was expanded by courts to cover the regulation of interstate railroad fairs, then intrastate railroad fairs, then to cattle yards that produce beef that will be shipped in interstate commerce. Today it means anything that might event remotely effect interstate commerce, such as growing medical marijuana in your backyard or wheat for your own consumption (no, I'm not kidding, these are real Supreme Court cases: growing stuff in your backyard is now "interstate commerce". Courts that can interpret their own powers have no shame).
The problem is that it's extremely difficult to make a list of substantive powers that is so utterly precise in its meaning that judges with incentives to expand the powers of themselves and their peers cannot come up with a plausible argument for greatly expanding that meaning.
In this case there may be an easier solution: a constitutional amendment that prevents "conditional block grants to states or other governmental entities", or similar. The feds would have to either grant the money to states or not, based only on an objective formula not conditional in nature, and any requirements on rulemaking or enforcement by that state would be forbidden from the formula. I'd have to think about the wording, but it sounds like a much easier task of drafting than trying to define "interstate commerce."
I wonder, though, if Goedel incompleteness is homomorphic to the problem of trying to draft loophole-free constitutions. :-)
Thanks for blogging, Nick. I consider you my best source of general knowledge about the legal and political environment.
For some reason, I find it easier to study your blog posts than to study your longer papers even when the longer papers are available in html.
Thanks, Richard. I am looking for a new platform to blog on. I need to be able to export my old posts cleanly from blogger to the new platform, I should also be able to export cleanly from the new platform (I don't want my content held hostage by a platform), and it should be an advance along the lines Richard recommends. Dear readers, a bleg, what platform(s) do you recommend?
Thank you for this!
The Constitution says ourselves and our posterity. Not Ourselves And Everybody Else.....
The USA Needs To Ban The Term Politically Correct. If Someone From Another Country Gets Offended By Something This Country Has Been Doing For Hundreds Of Years Then They Can Just Go Back To Their Own Country .
This is a great blog. Critical thinking is necessary and debate is healthy.
IMO,the Constitution is fine as it stands because it forms the checks and balances that would work with very little translation IF our representatives honored their oath to obey & protect (and had a clue what the constitution said).
Our founding fathers never intended the federal guv to trump the states or be involved in all the alphabet soup agencies and lunatic legislation by executive orders.
The mission of our founders was the protection of the inalienable rights, freedoms and property of the INDIVIDUAL, PERIOD. What is good for individuals is good for the masses, but what is good for the masses is NOT necessarily good for the individual, especially when forced by bureaucratic raw power.
They knew the human psyche and the propensity of greed and lust for power to contaminate. They did not intend for professional career politicians, ruled by an oligarchy of banksters and big corporate monopolies through special interest bribing.
It is clear to me that that there needs to be a barrier to career politicians and special interest influence. Right there is 99% of the problem with government, federal, state and local.
We need a Renaissance to return to the original, organic Constitution and representatives willing to follow their oath to obey and protect.
Eugene said:"The mission of our founders was the protection of the inalienable rights, freedoms and property of the INDIVIDUAL, PERIOD".
Theoretically, I could agree with this but the problem I have with this thinking is that our founders only considered white males who owned land to be "indivduals". Did it really take over a 120 years to amend it so women could vote?
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