December, 2005

Wrapping Up: The Living Constitution

Thanks to Prof. Buchanan, Prof. Amar, Judge Kozinski, and Dr. Niskanen for their penetrating and insightful essays and comments.
Prof. Buchanan’s lead essay and his response to comments emphasized the importance of a constitution not only as a rulebook for a well-ordered society, but also as a statement of the values of a liberal people. [...]

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A Few Final Thoughts on Constitutional Federalism

by Akhil Reed Amar

December 19th, 2005

Dr. Niskanen’s most recent posting points to data from the Senate in 1913 and presents this as the good old days. Let me repeat a point I made earlier: By 1913, quite a few—most, I think—U.S. Senators were in fact directly elected, de facto, by dint of various state systems allowing state voters [...]

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One More Round: The 17th and Constitutional Interpretation

by William A. Niskanen

December 19th, 2005

On the 17th Amendment
To Prof. Amar: Let’s be careful about the phrase “state’s rights.” States do not have rights; only people have rights. State governments have only those powers authorized by their state constitutions and not prohibited to them by the federal Constitution. A repeal of the 17th Amendment would restore one [...]

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Call Me a Panglossian

by Alex Kozinski

December 18th, 2005

Okay, so call me Panglossian, but I do “judge the United States political order to be working well.” Which, of course, is not to say it’s perfect, or incapable of improvement. But I need not claim perfection for our system in order to resist calls for reform, unless they are very well supported [...]

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Senators and the 17th

by Akhil Reed Amar

December 15th, 2005

A quick rejoinder to Dr. Niskanen: I am not sure why we should focus only on “presidents directly elected from the Senate.” In my book, (p. 415) I present rather different data, to wit:
While before enactment of the amendment only three of the ten most recent presidents had previously served in [...]

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Odds and Ends

by William A. Niskanen

December 15th, 2005

Prof. Buchanan’ initial essay and his response illustrate the problems of translating even broadly shared principles into constitutional language. A discussion of principles, however, is only the first stage of a constitutional dialogue. Specific proposed language is a necessary next step, both to clarify the implication of the principle and to test the [...]

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Notes on the 17th Amendment and States’ Rights

by Akhil Reed Amar

December 15th, 2005

As for repealing the Seventeenth Amendment: I once floated this idea as a thought experiment (in a footnote that appeared in The University of Chicago Law Review in 1988). [A pdf of the paper is here. See footnote 98 ---ed.]. Then I did more research into the Amendment and the issue seems far [...]

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The Discussion Continues!

Our meeting of the minds continues with a less structured blog chat, opening with Akhil Reed Amar’s thoughts about the repeal of the 17th Amendment . . .

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Best of the Blogs: Public Opinion, Judges, and Constitutional Stability

Posts by Tyler Cowen, Glen Whitman, and Will Baude raise deep questions about the stability of a constitution’s meaning (or of the meaning of any new amendments) under the pressure of evolving public opinion and the shifting predilections of judges . . .

Read: Best of the Blogs: Public Opinion, Judges, and Constitutional Stability

Response to Comments

by James M. Buchanan

December 14th, 2005

James M. Buchanan responds to Amar’s, Kozinski’s, and Niskanen’s comments, stressing the importance of promoting constitutional amendments that embody foundational values. “There remains a residue of understanding,” Buchanan writes, “that government should live within its means, that persons should be treated equally, and that government should not interfere with our liberties.”

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Reply to Buchanan

by William A. Niskanen

December 12th, 2005

Cato Institute chairman William A. Niskanen agrees with Buchanan about ends, but disagrees about means. Niskanen offers fixes for Buchanan’s amendments and sets forth three tantalizing alternative amendments: have state legislatures — once again — elect U.S. Senators, allow the states to nullify federal law, and allow states to secede.

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Reply to Buchanan

by Alex Kozinski

December 9th, 2005

Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit maintains that an America that would ratify Buchanan’s proposed amendments would be an America that didn’t need them. They may not be the best ideas even if feasible, he argues. Under the nondiscrimination amendment, Kozinski predicts, “we’d have Bush v. Gore going on 365 days a year, all over the country.”

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Best of the Blogs: Sandefur on Generality

Attorney Timothy Sandefur, blogging at Positive Liberty, argues that Buchanan’s proposed nondiscrimination amendment would eventually be whittled away by the same favor-seeking special interests it is meant to neutralize. Sandefur draws on arguments of political theorist Anthony de Jasay that may be found in his “The Rule of Forces, the Force of Rules,” [pdf] among other gems in the Cato Institute archives.

Read: Best of the Blogs: Sandefur on Generality

Reply to Buchanan

by Akhil Reed Amar

December 7th, 2005

Yale Law School professor Akhil Reed Amar says Buchanan’s essay offers a “veritable feast” for thought, but he turns up his nose at the menu, arguing that Buchanan’s amendments are either insufficiently supported by theory and evidence, likely to lead to distasteful consequences, or so indefinite in formulation that it is hard to say whether or not they could be made feasible.

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Three Amendments: Responsibility, Generality, and Natural Liberty

by James M. Buchanan

December 5th, 2005

Nobel laureate James M. Buchanan argues that the Constitution should include amendments requiring a balanced budget, forbidding discrimination in outlays, and guaranteeing the natural liberty to exchange within and across our borders. “The ‘regulatory state’ has not worked,” Buchanan writes. “Abandonment of its constitutional legitimacy offers a starting point for constructive dialogue.”

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Welcome to Cato Unbound!

The inaugural issue of the Cato Institute’s new online monthly is here! Our December 2005 edition, “The Living Constitution: Amendments for the 21st Century,” kicks off with an essay by Nobel laureate and Cato Institute distinguished senior fellow James M. Buchanan. We asked, “If you could add any three amendments to the Constitution, what would they be?” Buchanan gives his answer in “Three Amendments: Responsibility, Generality, and Natural Liberty,” arguing for a radical recipe of restraint. In the coming days, you’ll find replies from Yale Law’s Akhil Reed Amar, 9th Circuit Court of Appeals Judge Alex Kozinski, and Cato Institute chairman William A. Niskanen.

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How Does Cato Unbound Work?

Cato Unbound is a unique blend of magazine and blog. Here’s what you can expect from this and future issues . . .

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