Best of the Blogs: Public Opinion, Judges, and Constitutional Stability
by The Editors
December 14th, 2005
Buchanan’s amendment proposals, and the ensuing discussion, have raised deep questions among bloggers about the very possibility of constitutional change that sticks. Marginal Revolution’s Tyler Cowen stresses that the stability of a constitution depends on its not deviating too much from the opinions of the people it is supposed to govern.
In my view, if a constitution deviates from popular opinion (or is it the prevailing structure of interest groups?) by any more than “k” percent, that constitution will be chucked. Furthermore changing your constitution too much, or ignoring it too blatantly, is costly in terms of long-run political order. I view this as a constraint to be satisfied by political thinking, even though we can (and should) criticize that constraint at a meta-level.
Cowen proposes no amendments, but a lively exchange of ideas takes place in his comments.
Glen Whitman of Agoraphilia picks up where Cowen leaves off and wonders what the constraint of public opinion means as opinion changes over time.
I wonder if this perspective might provide a novel justification for the idea of a “living constitution.” In general, I’m repulsed by the notion of simply pretending the constitution says things it doesn’t in order to fit the zeitgeist, which is (one reason) why I’m generally more sympathetic to originalist approaches to constitutional interpretation. Cleaving to the original rules – and rules for amending the rules – seems to me the whole point of having a constitution. However, if public opinion has meandered sufficiently far (more than “k” percent in Tyler’s terms) from the original meaning of the constitution, attempts to return it to that meaning could create a problem very similar to that pointed out by Tyler: the public may just reject or ignore the constitution altogether (or at least pick politicians who will elevate judges and justices with even more malleable modes of interpretation). If so, then originalist goals might paradoxically be assisted by the infusion of some interpretive flexibility. A dose of living-document-ish reasoning might be the vaccine that inoculates the constitution from wholesale rejection of constitutionalism. And it strikes me that this is how originalism is actually implemented in practice, once it’s leavened by a respect for precedent.
But I’m only pondering here. Don’t lump me in with Sunstein just yet.
Over at Crescat Sententia, Yale Law student Will Baude brings the fidelity of judges into the equation, referring us to an article in the Virginia Law Review [pdf] by Jim Harrison.
Harrison’s basic point is that judges do not do a very good job of hewing to the goals of certain substantive provisions of the constiution. Whether or not we think this is good or bad, it means that when We The Living wish to entrench our morally enlightened ways through the constitution, it simply doesn’t much help to write our principles in as judicially-applied but vague standards and hope for the best.
Regardless of whether you think it is Brown or Plessy that the 39th Congress meant to entrench into time, The Supreme Court has been getting it wrong about half the time. This is not a great track record.
So Harrison offers four constitutional lessons from history. 1, Put not your faith in judges– their conformance with a provision will depend on its clarity, its conformance with their views, and what they perceive to be its importance. 2, Therefore, structure beats substance. Every state still has two senators. 3, rules beat standards. 4, law made by temporary majorities gets less respect than law that represents the tide of history.
What are the implictions of this for Buchanan’s goal to constitutionalize libertarianism? He cannot do much about number 4, since as Kozinski points we are not numerous and will not become so in the near future. And I am skeptical of Kozinski’s proposal to merely repeal the 16th Amendment, since there is an open possibility that an income tax would nonetheless be constitutional for the reasons that Akhil Amar has elsewhere argued. (Note that Abe Lincoln had a federal, progressive income tax decades before the 16th Amendment waspassed). In other words, Kozinski’s proposal needs to be clearer– he should ban the income tax outright if that is what he wants.
But more generally, the lesson about entrenching abstract goals into concrete text is that clear structural provisions do work that vague standards cannot. Now public choice theorists have devoted a lot of work to figuring out what kinds of structural provisions would do what kind of work– is the president the safeguard of libertarian spending because he is less vulnerable to interest group pressures? Is the line-item veto helpful? Would it be helpful to have a larger house? A smaller one? A third one? To have popular referenda on tax-increases and spending matters? To create a constitutionalized comptroller as another check on spending? To constitutionalize the role of the fed? To eliminate paper money? And so on. Now I haven’t done the empirical and theoretical work to answer these questions, but Buchanan could, if he would only realize that in order to entrench our vision of just government we need amendments that look more like the 17th than the 14th.
Don’t forget to read Buchanan’s response today to Amar, Kozinski, and Niskanen, where he emphasizes the importance of plumping for amendments that embody important political values, whether or not they’re immediately feasible. The process of debating them can itself affect public opinion.
