Best of the Blogs: Sandefur on Generality
by The Editors
December 8th, 2005
Why Buchanan’s Generality Requirement Won’t Work
[Originally published December 6, 2005 at Positive Liberty. Reprinted with permission.]
At Cato Unbound, Prof. James Buchanan (my client in the Kelo case, by the way) recommends amending the United States Constitution to say something like (in Hayek’s words) “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” He’s open to other phrases, but the idea is to enshrine the principle of “generality, which has long been accepted as the central element in the rule of law.”
Indeed it has, which is why the Constitution contains at least two guarantees of generality: they’re the Due Process of Law clauses. As I argue in my forthcoming article, Is Protectionism A Legitimate State Interest?, 14 Wm. & Mary Bill Rts. J. ___ (2006), the Due Process Clause was modeled on the “law of the land” provision of the Magna Carta, which declared that government could only deprive people of their property or freedom under the law of the land—meaning, pursuant to some generally recognized rule that served the general welfare, and not the particular welfare of particular groups. This theory fit very neatly with the natural law beliefs of the framers. They viewed the state as based on mutual agreement among people who were being persecuted or oppressed in the state of nature by wrongs committed by bullies and thieves. The very nature of law, therefore, was to prohibit bullies and thieves from using coercion to steal property or interfere with liberty. And that meant that the government itself must be limited in such a way as to prevent it from falling into the hands of bullies and thieves. If the government became merely a tool by which individuals or groups could steal things or beat up people they didn’t like, then, in Madison’s words, “anarchy may as truly be said to reign as in a state of nature.” Therefore the government must not only control the people so as to prevent torts and crimes, but must also be “oblige[d]…to control itself,” so that it, too, did not use its coercive power for the benefit of particular groups. This is one reason for misunderstanding Kelo. Private takings are not forbidden by the public use clause per se; they’re forbidden by the Due Process Clause. The public use clause is only part of the compensation requirement, which “presupposes what the Government intends to do is otherwise constitutional” under the Due Process Clause. Eastern Enterprises v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy, J., concurring in result).
The problem, as Buchanan himself established, is the “public choice” effect: that is, whenever government has the power to take property from some people and give it to other people, citizens will spend their time and energy convincing the government to exercise that power on their behalf. Or, in simpler language, legislative majorities “use their power to take away resources and opportunities from minorities and redistribute it to themselves.” John O. McGinnis, The Original Constitution And Its Decline: A Public Choice Perspective, 21 Harv. J.L. & Pub. Pol’y 195, 197 (1997).
Buchanan believes that we can limit the public choice problem by establishing a constitutional limit on differential benefits, but, as Anthony de Jasay explains in his essay, On Treating Like Cases Alike, reprinted in Justice And Its Surroundings 170 (2002), there is a major problem with this: constitutional rules are subject to the same public choice pressures that influence statutes. As Jasay puts it, interest groups not only “choose legislation that maximizes their gains from politics,” they also “learn to choose a constitution that maximizes the scope for such legislation.” Id. at 83. Constitutional rules will be gradually bent to serve the public choice pressure.
Jasay explains the mechanism by which a generality requirement, such as substantive due process once was, is gradually warped: saying that we must “treat like cases alike” is literally meaningless, because it doesn’t establish what cases are alike. Once that question is answered, the rest of the matter follows of course. Which means that saying that laws must be “general” or must “treat likes cases alike without special exceptions” really just begs the question. A welfare program is proposed. Should it grant benefits truly equally, without exception? To rich and to poor? But there are possibly infinite differences between these citizens. What differences are relevant? Wealth? Personal background? So we restrict the generality of the rule, and say that the welfare will be granted only to poor people or people who have had a disadvantaged background. Is this new rule more or less “general” than the basic “everyone gets welfare” rule? In some ways it’s less general, but it’s still general—everyone who meets the established criteria qualify, without exception. It’s as general, strictly speaking, as any other rule.
In the law, we’re very accustomed to special legislation being dressed up as if it were general legislation. The recent Texas statute regarding eminent domain, for example, preserves the authority to use eminent domain for any “sports and community venue project approved by voters at an election held on or before December 1, 2005, under Chapter 334 or 335, Local Government Code.” Of course, you and I know that this only applies to one project, but, strictly speaking, it’s as general as a law can ever be.
As Jasay concludes, “it is logically impossible to formulate constitutional clauses whose strict respect would constrain the lawmaker from passing any rule on the sole ground that the rule would violate the generality principle. Generality cannot be sufficiently defined to allow us to tell rules that are general from rules that are not.” Supra at 178. Requiring “generality” doesn’t answer the question, therefore, of what sort of laws are general and what are special, because it doesn’t explain what variables are to be considered relevant when determining whether one case is like another case. Those variables are potentially infinite, and many have a great deal of plausibility. But once we decide on some, then we have loaded the game and our “general” laws are no longer truly “general” in a meaningful sense.
Of course, we can try to list certain variables that are simply off limits when deciding whether a law is sufficiently general. That’s what we’ve done in equal protection and due process cases since the 1930s at least. But, as Jasay explains, even that won’t really work:
Such a universally rejected set of variables can tell the constitutional court that rules differentiating between cases according to these variables are not general…. However, the rejected set cannot help determine which of the countless remaining, actual or potential rules differentiating between cases according to the countless remaining unrejected variables is general and which is not. Moreover, whatever the foundation of the taboo variables is not a firm but a shifting one, contingent on cultural change. Currently taboo variables are liable to be eroded or swept away by the next wave of political correctness, whose reigning value judgments might well seem outrageous, and outrageously un-general, to our own generation.
Id. at 184. Grutter, anyone?
You see now why I once referred to this essay as “spooky.” It suggests that there is no possible solution to the fundamental problem of politics—no matter how philosophically savvy the people are!
Jasay’s response to Buchanan is brilliant, and everyone should read it.
[Sandefur comments further on the Due Process Clause as a generality requirement here.]
