About this Issue
If you could add any three amendments to the Constitution, what would they be?
We put this question to Nobel Laureate James M. Buchanan, founder of the “public choice” school of political economy, and his answer kicks off this, the premiere issue, of Cato Unbound. Yale law professor Akhil Reed Amar, author of America’s Constitution: A Biography; Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit; and William A. Niskanen, chairman of the Cato Institute, offer their critical assessment of Buchanan’s proposals — and just might name amendment ideas of their own.
As new nominees to the Supreme Court are contested and confirmed, questions of constitutional interpretation figure prominently in public debate. Ideologues left and right worry that new judges will read their ideology into the Constitution, slowly reshaping and reinterpreting it, decision by decision. Of course, the Constitution provides for the possibility of it own rapid reshaping through amendment. Rather than fight over judges who will reshape the Constitution over time, perhaps Americans ought to debate directly amending the Constitution.
Are there amendments that could improve the prospects for liberty, prosperity, and security in the 21st century? If so, what are they? Would any have a chance in today’s political climate? Is it dangerous to meddle with Constitution through amendment?
You don’t have to be a federal judge, a law professor, or a Nobel Prize-winner to think about the future of the Constitution. Suppose you could push a button and have your heart’s desire for amendments XXVIII, XXIX, and XXX. What would they be?
Three Amendments: Responsibility, Generality, and Natural Liberty
A central message of public choice theory tells us that if politics generates undesirable results, it is better to examine the rules than to argue about different policies or to elect different representatives. Well and good. But those of us who have peddled this message have been too reluctant to get down and dirty with proposals for constitutional change. Hence, I felt challenged by the editor’s invitation to propose three specific amendments.
What is wrong with things as they are? And among any extended listing that each of us might make, which of the observed results might be amenable to fixing through changes in the rules?
Fiscal irresponsibility stares us in the face and cries out for correction. The near-total disregard for any pretense of generality in the distribution of apparent governmental largesse, along with the increasing manipulation of the tax structure, can only be turned around by constitutional prohibition of discrimination. Existing rules, as interpreted, have not been successful in guaranteeing the natural liberty of citizens to engage in voluntary exchange, both among themselves within the political jurisdiction and with others beyond national boundaries.
Political leaders, both legislative and executive, with public support, act as if it is possible to spend without taxing, indeed as if the fisc offers the political equivalent of perpetual motion. This observed fiscal profligacy stems from diverse sources: institutional history, Keynesian follies, supply-side exaggerations, and, finally, the very logic of collective action, which fosters the personalized illusion of something for nothing, especially amid the natural constituency pressures of representative democracy.
The twentieth century experienced a manifold increase in the size of government, at all levels, but concentrated in the United States at the federal level. The political decision structure accelerated this growth. Congress found itself able to advance popular spending programs separately from the imposition of taxes needed to finance them. Further, the spending process itself was effectively decentralized through the delegation of authority to committees, members of which were necessarily responsive to interest groups. Sporadic efforts to reform the budgetary decision structure have been unsuccessful.
Ideas have consequences. The heritage of budget deficits can be traced, in part, to the now-discredited Keynesian economics, which dominated the academies in mid-century and influenced political arguments from the 1960s. The Keynesian response to the Great Depression neglected monetary relevance, causal and corrective, and emphasized budgetary expansion through debt finance, soft-pedaled by a bizarre denial that the incidence of spending even exists. Politicians were delighted with this logic and rushed in to expand government outlay.
As concerns over mounting deficits emerged in the late 1970s and early 1980s, opportunities were missed to introduce a constitutional amendment for budget balance. In part, this failure was due to the Reagan administration’s distraction by supply-side arguments, which relegated deficit worries to the second order of smalls. The Reagan cuts in marginal tax rates did, indeed, set the stage for economic growth, which during the 1990s obscured the fiscal profligacy inherent in existing institutions and attitudes.
Fiscal responsibility again moved to center stage in public discussion in the early 2000s, as responses to terrorism and natural disasters supplemented ordinary proclivities to expand governmental outlays. The urgency of reform is exacerbated by the recognition that creditor accounts have increasingly been accumulated by Asian central banks.
A constitutional amendment could take the following form. In its final budget resolution, Congress should restrict estimated spending to the limits imposed by estimated tax revenues. This requirement should be waived only upon approval separately by three-fourths of the House of Representatives and the Senate. This exception would allow for debt financing of federal outlay in situations that are indeed extraordinary (major wars, natural disasters), an exception recognized by classical public finance.
Such a constitutional amendment would exert a major impact on world attitudes. Such action would, in itself, increase prospects that the dollar would not lose its role as the international reserve currency. The attainment of fiscal responsibility by the United States, both in fact and appearance, is imperative. Specific amendment of the Constitution offers the means for telling the world that the fiscal house is in order.
Toward Nondiscriminatory Politics
In a 1978 video-taped interview, F.A. Hayek stated to me that a constitutional amendment should read: “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” He went on to add that, with such an amendment, all of the other rights would be unnecessary. The principle is that of generality, which has long been accepted as the central element in the rule of law. The Hayek proposal amounts to an extension of the legal tradition in Western civil order to the workings of ordinary politics.
The principle, as such, may be widely understood and accepted as an appropriate normative guideline. It may prove difficult, however, to incorporate nondiscrimination in a constitutional provision that would forestall prospects for divergent judicial interpretation. Any specific provision here would be akin to the equal protection clause that has been construed well beyond its initial meaning. Nonetheless, few would argue that the Constitution would be improved by total elimination of the Equal Protection Clause.
Why should the politics of democracy, either in idealized form or in practice, be different from the law, again as idealized or in substance? Why is discrimination in political action constitutionally permissible whereas discrimination in law is out of bounds?
The answer, in part, lies in political-constitutional history over the life of the United States, during which the activity of the federal government has expanded beyond the imagination of the Framers. Those who prepared the initial documents did recognize the dangers of discriminatory treatment on the taxing side of the fiscal account. The uniformity clause has been variously interpreted through the years, but it did prove strong enough to have required an amendment explicitly making progressive income taxation constitutionally acceptable.
The outlay side of the account has been, surprisingly, ignored, and fiscal history is characterized by a failure to distinguish between programs that, at least in principle, are aimed to benefit citizens of the polity generally and those that are, often explicitly, aimed to benefit members of identified groups.
Arguments about applications might arise, even among those who support the generality norm in principle. Such arguments should not, however, be allowed to undermine the persuasive force of the nondiscriminatory objective in the civic and public understanding of the ultimate justification of collective action. The American structure will not survive if “democratic politics” comes to be interpreted as overt conflict among parties and groups each seeking to further particular interest.
Regardless of the specific wording of a nondiscrimination amendment, there will remain scope for disagreement as to its implications. Such an amendment would not require change in the Sixteenth Amendment, since this provision allows only the levy of taxes on income and does not stipulate rates of tax. A nondiscrimination amendment might, however, offer the basis for the replacement of the complex tax structure by a uniform rate of tax that is imposed on all income, without exemptions, deductions, credits, or other special treatments. On the spending or outlay side of the budget, the generality norm would require that program benefits be extended across all members of the polity. If programs include cash transfers, the generality standard would dictate equal-per-head payments, sometimes called demogrants, to all citizens.
What about programs that clearly discriminate among groups by some criteria, but which are deemed to be legitimized by appeal to “the public interest”? Here a partial answer might refer to the generality of the qualification criteria, as such. For example, tax-financed outlay on pensions or medical care for the elderly might be adjudged to be nondiscriminatory since all citizens become equally eligible if age standards are satisfied. Each person gets old, and age is not subject to behavioral manipulation. More difficult issues arise if program benefits are differentially targeted toward members of groups, benefits that may seem justifiable on public interest grounds, but which cannot, by their nature, be interpreted to be general, e.g., aid to the blind, deaf, disabled. All such programs are subject to some behavioral manipulation. No hard and fast line can be drawn here, and the apparent violation of any generality standard must be weighed against a meaningful interpretation of how much general interest is involved.
What are clearly ruled out, at least in principle, are all programs that target persons who qualify in accordance with identification by ethnicity, location, occupation, industry, or activity.
Regardless of how a nondiscrimination amendment is finally worded, there will remain relevant issues of interpretation. But, as is the case with the equal protection clause, it would surely be better to have such a nondiscrimination provision in the constitutional document itself than to ignore the continuing blatant violation of the generality norm in the workings of ordinary majoritarian politics. After all, constitutions do serve as constraints, even if subject to evasion and misinterpretation.
Neither of the two constitutional changes discussed previously—those aimed to correct for fiscal irresponsibility and overt political discrimination—will insure against continuing pressures for growth of government. The welfare state could remain with us, perhaps commanding a major share of value that is produced. The third proposal, discussed here, might operate more directly on extension of governmental activity, although such extensions would, in themselves, lose much public support if contained within the limits of the first two rules.
The Madisonian construction is flawed by its authorization of government regulation through the much abused Commerce Clause. The authorization should be restricted to the prevention of interferences with voluntary exchanges and should not extend to the prohibition, or the coercive dictation of the terms, of such exchanges. Nor should any differentiation be made between exchanges within the domestic economy and those made with others outside the political jurisdiction. The Constitution has proved effective in insuring that the large American market be open inside national boundaries; it has not operated to insure freedom of trade beyond these limits.
Public understanding, including, importantly, that of the practicing judiciary, must embody the recognition that limiting government intrusion into the operation of markets, while imposing on government the obligation to prevent interferences with voluntary exchange, does not, in any way, amount to the constitutionalization of a particular economic theory, as sometimes alleged. Such a requirement is little more than explicit acknowledgement that persons possess the natural liberty to enter into and exit from agreements, without concern for collectively imposed constraints.
The first two proposals may be broadly appealing since they may be interpreted as correctives for observed departures from acceptable normative standards. The third proposal, treated here, is dramatically different because its endorsement, even as principle, requires rethinking the two-century presumption that governmental action is preferred to that generated through markets. The mind-set that elevates collective action to its idealized image while ignoring the reality of its operation must be exorcised, and especially as this mind-set has come to dominate legal interpretation after the usurpation of constitutional limits in the Roosevelt era.
Measured against a yardstick of potential implementation, the three proposals stand in ascending order of difficulty. The balanced budget constraint is within reasonable prospect. Constitutional prohibition of political discrimination is acceptable in principle. But even die-hard classical liberals may bridle at constitutional prohibition of governmental regulatory authority.
It is here that the lessons of public choice theory have yet to penetrate public consciousness. The shift in perspective requires that governmental failure in regulatory activities be set against the market failure arguments of those who idealize collective action. The proposed amendment would allow government authority to prevent interferences with the natural liberty of voluntary exchange while not allowing for intrusion into private market behavior. This idea is, indeed, revolutionary, even in the post-socialist climate of discourse, but the debate can be joined only if the alternatives are seen for what they are. The “regulatory state” has not worked. Abandonment of its constitutional legitimacy offers a starting point for constructive dialogue.
In some aspects, the three proposals for constitutional change are internally redundant. Effective enforcement of any one would do much toward meeting the need for implementation of the others. In this sense, perhaps the Hayekian requirement for political nondiscrimination seems the most inclusive. Such a rule could be so interpreted as to disallow debt financing of ordinary outlay, and, also, intrusive regulation of exchange emerges only because discrimination is permissible. If all governmental action must conform to the generality norm, how much regulation could exist?
As already noted, the three basic changes would not, in themselves, insure against a governmental sector that is Leviathan-like in size. The proposals are procedural rather than substantive. They would not prevent constituencies, through ordinary democratic processes, from choosing to levy general tax rates sufficient to finance a massive budget that embodies generalized benefits. Perhaps the culture of dependence is so entrenched in public attitudes that a large and cumbersome nonproductive welfare state remains in prospect. The test should be carried out, nonetheless, before proposals are advanced that reflect abandonment of the fundamental democratic faith.
In initial instructions, the editor limited me to three proposals for constitutional change. This limit has not allowed discussion of a monetary constitution as a supplement and possible substitute for fiscal constraint. Nor has it been possible to explore constitutional changes that may have been made imperative with the emergence of terrorism, both in the enabling of effective prevention and in the control of possible abuses of authority.
Reply to Buchanan
Some Initial Reactions to James M. Buchanan’s Suggested Constitutional Amendments
Professor Buchanan offers lots of food—a veritable feast—for thought. But I find much of it unappetizing.
Start with his fiscal responsibility amendment: Unless three-fourths of each congressional house votes otherwise, Congress must “restrict estimated spending to the limits imposed by estimated tax revenues.” Professor Buchanan says that this amendment “would exert a major impact on world attitudes” and strengthen the dollar. Now, I am not an expert on this topic (to put it mildly). But I do wonder whether there is evidence that other countries have in fact adopted fiscal responsibility provisions closely akin to the one Buchanan proposes, and that these countries have indeed been rewarded by world financial markets? If so, I should like to see the evidence.
Long study of America’s Constitution has taught me to pay careful attention to the details—the specifics, the numbers—in the document, and I have real doubts about the specifics of the Buchanan proposal. I can envision many scenarios where a wise government might need to spend more than it taxes. (For what it’s worth—rather a lot, I think—George Washington and Alexander Hamilton agreed with me on this.) Wars may require massive expenditures and large-scale borrowing. Other capital expenditures—like the Panama Canal—may also be superb long-term investments even if they result in immediate negative cash flow. But the Buchanan amendment is very crude: it measures only immediate flows rather than trying to separate current expenditures from long-term expenses/investments that should be budgeted separately.
Of course, the amendment does not absolutely bar deficit spending: it merely requires an extraordinary supermajority of each house. But does Buchanan understand how truly high he has set the bar? A president’s veto may be overridden by a mere two-thirds of each House, yet for the Constitution’s first 75 years, Congress never succeeded in clearing even this bar to overcome a presidential veto on a major bill. True, my override data derives from situations where the president is opposed to Congress, whereas the three-fourths proposal is indifferent to the president’s attitudes. But this only highlights another odd feature of the proposal. Is fiscal responsibility well served by, in effect, cutting the president out of the deficit-spending process? (I might have thought that a public choice theorist might champion the President—as a continentally elected figure—as an important counterweight to locally elected legislators seeking local pork projects.)
And if deficit spending is imperatively necessary—thanks to a war or a huge exogenous shock (say, an unprecedented series of massive natural disasters)—a three-fourths rule might actually worsen the problem by increasing the leverage of a small minority in Congress who can insist that their pet projects be added to an omnibus bill. The Articles of Confederation featured a strong supermajority requirement for necessary government action, and this system failed miserably. And the framers understood that increasing the requirement for passage of certain types of bills could in theory create the potential for more pork, not less. As Franklin pointed out at the Philadelphia Convention: “The negative of the [colonial] governor [of Pennsylvania] was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some other donation, was always made a condition.” Similarly, giving a mere quarter of each house an absolute “negative” veto on vitally needed deficit spending might well enable an irresponsible legislative faction to “extort” (to use Madison’s word from Philadelphia) the forces of good government.
I do not say this will happen or is even likely to happen. But given that it might happen—that raising the voting bar might end up resulting in more useless pork, not less—then it would be useful to have some actual data from American or world history to support the three-fourths idea.
Note, finally, that there is considerable imprecision not merely in the idea of “estimated”—as opposed to actual—spending and tax revenues, but also in several other variables in the Buchanan formula. How should we count a government promise to spend all sorts of money in future years, if the promise does not cost us anything in the current budget period? Will the government be induced into all sorts of false economies by leasing short-term (thus decreasing current expenditures) rather than buying long-term in cases where buying is ultimately far more frugal? Are user’s fees to be counted as taxes? How about sales of government assets—from fighter planes to western lands? The huge gap between the ordinary rules of legislative majorities and the super-high bar of three-fourths may create all sorts of possibilities for legislative legerdemain. Once again, it would be helpful to have actual case studies of how rules similar to the one Buchanan proposes have in fact operated.
As for Buchanan’s proposed nondiscrimination amendment: What, exactly, is this trying to add above and beyond existing Equal Protection Clause doctrine? A constitutional amendment must take a form of words, and I am not clear whether Buchanan means to endorse the precise formula that Hayek put forth. Before we go around monkeying with the Constitution, I should think we should carefully study the Constitution that we already have. But Buchanan’s rather confusing observations about our existing Constitution make me nervous. He alludes to the Constitution’s tax “uniformity” clause; but contrary to the thrust of his analysis, this was not the clause whose judicial interpretation prompted the need for an income tax amendment. Rather, it was a clause about “direct” taxes and “apportionment” that was interpreted—I would say, grossly misinterpreted—by the 1890s Court in a manner that prompted the Sixteenth Amendment. In fact, the Founding-era Court explicitly upheld a luxury (i.e., progressive/“discriminatory”) tax on carriages in the 1790s—in a sensible decision that the 1890s Court essentially repudiated.
It is formally true that the Sixteenth Amendment does not “stipulate rates of taxes,” but Americans adopted this amendment fully understanding that all previous income taxes in America had been—and that all future income taxes were likely to be—progressive in structure, with some combination of high exemptions and sloping rates. Buchanan’s proposal—which apparently constitutionalizes a regime that prohibits even a standard deduction (say, for income below the poverty line)—marks a truly radical break with American constitutional history. (It is also worthy of mention that, in the 1860s, the emancipation of slaves—which occurred without compensation even to loyal masters in loyal states—effected a massive redistribution of a sort that might seem to violate Buchanan-style “nondiscrimination.”) I take it that aid to impoverished orphans also might run afoul of nondiscrimination as Buchanan understands the term. If so—if this is even a close question or a plausible reading of the Buchanan idea—then I think this proposal needs to go back to the drawing board for careful rethinking and redrafting.
As for the third proposal—regarding “natural liberty”—this seems, contra Buchanan, rather more “substantive” than “procedural” as constitutional lawyers and judges use these terms. Has such a constitutional proposal ever been adopted and enforced in any American state—or anywhere else in the free world? It goes very far beyond what the Lochner Court did in its heyday. How would such a principle work in practice? For example, would it prohibit the government from banning private sales of arms to an enemy government in a time of declared war? How about sales of nuclear material to eager buyers? So here, too, I think there is a need to go back to the drawing board.
Reply to Buchanan
[Note: The commentators’ replies were written contemporaneously and independently and therefore do not take the other comments into account.]
Dr. Buchanan advances a vision of government—especially the federal government—that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it—that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.
One thing I’m pretty sure of, though, is that Dr. Buchanan’s vision is not shared by most of the American public. While nearly everyone has some beef with government at its many levels, there are very few who would, had they the power, fundamentally change the relationship between the government and the governed in the ways Dr. Buchanan envisions. Thus, unless we assume that his three proposed constitutional amendments are to be imposed by some power outside the American democratic process—by a Philosopher King, as it were—we have to imagine a very different world, and a very different popular attitude toward what the government is expected to accomplish. In other words, an America where it were possible to gain the super-majorities needed to pass Dr. Buchanan’s proposed constitutional amendments would, in effect, be an America populated by 200+ million committed libertarians. In that world, the kind of constitutional amendments Dr. Buchanan proposes would be politically feasible, but probably unnecessary; people who would adopt those amendments would also be people who wouldn’t really need them, because their view of what government is supposed to do would be so much narrower than is the norm today. Or, to put it differently, a body politic that needs Dr. Buchanan’s amendments is a body politic that won’t adopt them in the first place.
But it’s not my purpose to quibble with the premises of Dr. Buchanan’s proposals. I will assume, therefore, that we are politically of a mind with Dr. Buchanan in wishing to achieve the minimalist state, or something close to it, and we have been commissioned to select the three best constitutional amendments to constrain future generations that may not be as clear-sighted as we are. The question then is: Are the amendments, as proposed, workable? Or are there better ways of achieving the same ends? I will discuss each proposal briefly, and then offer my own counter-proposal.
The goal of restraining government spending, if only to prevent, as de Tocqueville feared, government bribing the voters with their own money, is certainly a sound one; no one seriously disputes it. But is there really a reason to enforce fiscal responsibility by precluding (or greatly restricting) deficit spending? Polonius’s advice notwithstanding, it is possible to be fiscally responsible and yet do a certain amount of borrowing for capital items. People don’t spend only what they earn; rather, individuals spend most of their lives deeply in debt—for an education, a house, cars, a vacation home, whatever.
A country is no different, in that respect, from an individual. Certain government expenditures are annual, like salaries of government employees, but others are clearly capital and long-term, such as government buildings, highways, public education, space programs, etc. Even if one were to take the view that government should not be engaging in many of those functions, you’d still need capital expenditures for those functions that are legitimate. Thus, there are no disposable tanks, aircraft carriers and nuclear missiles; these items must be built and paid for in one fiscal year, yet be usable for many years to come. I can see no justification for forcing the government to buy such items outright from current-year tax revenues when their use will benefit us far into the future. Conversely, I see no fiscal irresponsibility in borrowing to finance such items, and thereby amortizing their cost over their expected lifetimes, so that future generations will pay their fair share for the items they use and enjoy.
I recognize that a constitutional amendment that prohibits, or strictly limits, deficit spending may be easy to articulate and administer, but I’m not sure that’s a sufficient reason to adopt it. The effect of such an amendment may well be to under-procure items that have a long-term value because the current taxpayers, who have to foot the entire bill, will only get a small fraction of the benefit. And future generations will, in effect, have no voice in the matter, and no way of contributing their money to a venture that may be of tremendous benefit to them, but won’t be built because current taxpayers are unable or unwilling to pay for the entire project. This is a serious drawback to the proposed amendment, one that should be avoided if at all possible.
Here Dr. Buchanan would impose a constitutional constraint that would pretty much hand over the running of the federal government to the judiciary. The reason for this is quite simple. All governmental action is inherently discriminatory: The penal code discriminates against those who commit certain acts (defined as criminal) and in favor of those who refrain from those acts. Taxing and spending are inherently discriminatory activities. No matter how uniformly a tax is laid, it will fall more heavily on some than on others; even if the tax is per capita and absolutely uniform, some will see the tax burden of, say, $10,000, as trivial, whereas others will see it as crushing. Building a bridge over the Mississippi will benefit the entire country, but it will benefit most those who live closest to the bridge and/or have a lot of goods they need to transport from one side of the river to the other. The decision to locate the bridge in one community will benefit bridge contractors here, whereas locating it a few miles down-river will benefit the contractors there. The list is endless.
Dr. Buchanan recognizes this and suggests the development of interpretational principles that will legitimize certain kinds of discrimination “by appeal to ‘the public interest.’” As an example, he offers tax benefits for pensions that might be justified as non-discriminatory on the theory that we all get old. Putting aside the fact that some die young, why does the fact that everyone is similarly affected by a particular policy necessarily make it non-discriminatory? Some may prefer current consumption and hope to rely on charity when they’re old; others may be independently wealthy and not need a pension; still others may be self-employed or unemployed and not earn a pension. There are very few ways—if any—in which we are all exactly equal.
Unless the distinction between what is and what isn’t justified by “the public interest” is spelled out in the constitutional amendment itself—a task I believe is pretty much impossible—the decision will be left case-by-case to the judges. Does the President want to invade Iraq? The courts would have to decide whether that is consistent with the principle of equality. Does New Orleans need rebuilding as a result of a hurricane? The government could help only after the courts determine—by means that are not now predictable—that providing the funding and expertise is consistent with the equality principle. In effect, we’d have Bush v. Gore going on 365 days a year, all over the country. As a prescription for curtailing governmental action, this would surely work. But it would also remove much of the power of government from elected officials and give it to un-elected federal judges. The push to appoint judges sympathetic to the government’s current policies will be strong, and we will look on the “mild” confirmation battles of the past as the good old days.
As I understand this proposal, this constitutional amendment would limit the power of government to protecting the right to voluntary exchange, and would preclude government from dictating the terms of such exchange. I pass over the political difficulty of adopting any absolute governmental guarantee of all voluntary transactions—which presumably would include markets in slaves (provided individuals voluntarily sold themselves into slavery), sexual favors (including possibly those of consenting minors), drugs, physical violence and coercion, price-fixing, pollution, etc. Even then, however, we can hardly say that the government has exhausted its useful functions. What about police protection—and I don’t mean simply the protection of voluntary exchanges, but the protection against people hitting you over the head and taking your money, or raping you for the (non-economic) pleasure of it; what about raising armies and navies—and equipping them—to keep us from being invaded by a foreign power? What about the courts or equivalent mechanisms for adjudicating disputes? Without them, none of these constitutional guarantees would mean very much.
How would these functions—or, more specifically, particular attempts to fulfill some of these functions—square with the principle of natural liberty, as envisioned by Dr. Buchanan? I suspect that there is a way—and that Dr. Buchanan will explain what it is in his further postings—but what’s important is that there is no agreed-upon standard for what “natural liberty” means, how it operates or what its limiting principles are. The only way to really flesh it out will be by case-specific decisions from the courts. Once again, the judges will rule.
I have serious doubts about whether fundamental changes in our constitutional structure are really needed or desirable. We do have it pretty good, and we should hesitate long and hard before we make fundamental changes to our system of government, which may have momentous, incalculable and possibly irreversible effects on our way of life.
But if we do want to shake things up a bit, if we do want to cut down on the power and scope of the federal government, if we do want to make a radical—yet somewhat predictable—change in the way we operate as a nation, we can accomplish this by a single amendment, comprised of only 15 words: “The sixteenth article of amendment to the Constitution of the United States is hereby repealed.”
Reply to Buchanan
Prof. Buchanan has identified three major problems of the current effective constitution of the United States and proposed three amendments to the Constitution to address these problems. I share his concern about the problems that he has identified. But the three amendments that he has proposed are not sufficient to address these problems. And, to my surprise, Buchanan has not proposed one or more structural amendments that would be more effective general restraints on the abuse of powers by the federal government.
The Proposed Amendments
The Balanced Budget Amendment
The primary problem of the proposed balanced budget amendment is that it would not limit an increase in the implicit debt of the federal government. The implicit debt is the present value of the difference between the future benefits the government has promised and the expected future revenues — primarily for Social Security and Medicare — and is already about 20 times the privately-held explicit debt. A constitutional limit on the increase in the explicit debt would provide only the illusion of fiscal responsibility unless it was broadened to include the increase in the implicit debt.
The specific form of the proposed amendment, moreover, could be improved. The spending limit for a specific fiscal year should be made a function of the actual revenues in the second prior fiscal year, say 10 percent larger. This would eliminate the uncertainty inherent in an estimate of revenues for the year following the year in which the budget is considered and approved, reduce the variance of spending relative to temporary changes in the economy, and give both the president and Congress a strong incentive to support a low-inflation monetary policy. This limit should be automatically suspended upon the declaration of war. Any suspension for other reasons should require the support of two-thirds of both the House and the Senate, not the three-fourths proposed by Prof. Buchanan, which is higher than any other voting rule on federal legislation.
The Nondiscrimination Amendment
The primary problem of a nondiscrimination amendment is that the basis for determining discrimination is not self-evident and would be a continuing point of political controversy. Should required tax payments, for example, be the same amount for all adults, the same proportion of income, or the same proportion of consumption? Should government expenditures for income support, education, and medical care, for example, be independent of age, income, and health status — conditions that are not entirely of one’s own choosing? Or should discrimination be judged only among those in the same group? In a 1989 article, Prof. Buchanan recognized that risk-averse people might choose some forms of social insurance at the constitutional stage with full knowledge that such programs lead to some misallocative behavior in the post-constitutional stage.1
Other problems of a nondiscrimination amendment are that it is not clear how to write such an amendment in a way that would avoid continuing political controversy and that there is no apparent broad support for such an amendment.
The Noninterference Amendment
Prof. Buchanan proposes that government regulation be limited to “the prevention of interferences with voluntary exchanges and should not extend to either prohibition of or coercive dictation of the terms of such exchanges,” in effect amending the Constitution to incorporate the 1905 Lochner decision. He recognizes that this is the most revolutionary of his three proposed amendments, as it is derivative of a concept of natural law that is not broadly understood or shared. In effect, a noninterference amendment would authorize voluntary private agreements even if the purpose and effect of such agreements would be to limit the potential voluntary exchanges among other parties, limiting the government to regulate the effects of such agreements but not the agreement itself.
I share his concern about over-regulation, especially by the federal government. After years of working on this issue, however, I am inclined to address this problem in two smaller steps.
The continuing delegation of rule-making from Congress to the regulatory agencies is a corrosive problem, like water dripping on a stone. After a brief preamble, the first words of the Constitution are that “All legislative Powers herein granted shall be vested in a Congress of the United States … “ For decades, however, Congress has delegated detailed rule-making to regulatory agencies with only the most general guidance. The regulatory agencies, in turn, usually represent much narrower interests than the range of interests represented in Congress.
Congress has full authority but too little incentive to recapture the power to approve regulations. All too often, members of Congress prefer to endorse broad legislation expressing concern, for example, about clean air or disabled people, while reserving the right to complain about costly or unpopular regulations that some agency promulgates under this authority. I am not convinced that there is any quantitative measure, such as the expected cost or number of people affected, to identify those regulations that are likely to be of most concern.
My preferred approach to avoiding undue delegation would be simple procedural legislation with two provisions. First, no regulation would be effective for 60 legislative days following approval by the regulatory agency. Second, during that period, any member of Congress, on a point of order, could force a floor vote on whether to approve the pending regulation. This would transform the regulatory agencies from rule-making and enforcing agencies into rule-drafting and enforcing agencies. The potential burden of reviewing many pending regulations would probably also lead Congress to write more intelligible principles in the substantive regulatory legislation and to reduce the total volume of new regulation.
The other necessary step would require the Supreme Court to restrict the reach of the Commerce Clause to cases with a significant effect on interstate commerce. This would allow state and local governments more regulatory scope than would Buchanan’s proposed noninterventionist amendment, but this is the price of not knowing enough about what is right for everyone to endorse an amendment to the federal Constitution. Over several cases, the Rehnquist court had moved in this direction until the unfortunate 2005 decision in the Raich case.
Alternative Structural Amendments
The most general problem of the federal government is that it now acts as if it has the authority to define its own powers. The Constitution authorizes the federal government to exercise only 18 rather narrowly defined powers. And it requires that an amendment to the Constitution be proposed by two-thirds of Congress and approved by three-fourths of the states. Starting in the 1930s, however, the scope of federal powers has expanded enormously without a single amendment to the Constitution to authorize these additional powers. The effective constitution is now the set of rules approved by the president, a majority of Congress, and a majority of the Supreme Court — not the broader interests necessary to propose and approve a formal amendment to the Constitution.
The most important common policy challenge in a democracy is to assure that any change in the effective constitution reflects the broad support of the subject population. Americans have long counted on the Supreme Court to serve this role, even though there is no explicit constitutional authority for judicial review of constitutional disputes. As Alexander Hamilton recognized “ … it would require an uncommon portion of fortitude in the judges to do their duty as guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.” No group that could all be thrown in one police van can stop a parade.
My judgment is that some group outside the federal government should be given the authority to enjoin a federal action on the grounds that it is unconstitutional—some group that is too strong for the federal government to override with impunity. Some change in the structure of the Constitution is necessary for this purpose. One or more of the following three amendments merits consideration:
Repeal the 17th Amendment
The 17th Amendment was the beginning of the end of limited constitutional government in the United States. This amendment, ratified in 1913, replaced the selection of U.S. Senators by the legislature of each state with direct popular elections. Prior to the 17th amendment, state legislatures routinely instructed the Senators that they had selected about how to vote on major issues, and this process was very effective in limiting an increase in federal powers at the expense of state powers. In effect, the U.S. Senate served the role that we now, often naively, expect of the Supreme Court.
Repealing the 17th Amendment and, thus, restoring the role of state legislatures in the selection of U.S. Senators would be very effective in limiting additional federal powers that are not authorized by constitutional amendments, but would have little effect on redressing the unconstitutional prior expansion of federal powers without a major change in the political orientation of the House of Representatives. Moreover, since Congress would almost surely oppose the repeal of this amendment, a proposal for this repeal would probably have to be made by a convention called by the states.
A Nullification Amendment
The Constitution does not establish an adequate procedure for forcing a constitutional test of the assertion of undelegated powers by the federal government. Article V provides an adequate procedure for testing the consensus on any formal amendment proposed by Congress or a convention, but there is no procedure for forcing a constitutional test on issues for which the Supreme Court is unwilling or unable to enjoin actions by Congress, the president, or of a decision by the Court itself. In that sense, the Constitution is asymmetric: a vote by more than one-fourth of the states would block any formal amendment, but there is no corresponding procedure for any number of states to force a constitutional test by enjoining a change in the effective constitution.
The procedural solution to this asymmetry is as old as the Magna Carta and has been circulating in the backwater of American political theory since the beginning of our Republic: some proportion of the parties to a constitutional contract must be able to enjoin the actions of the government established by that contract in order to force a formal constitutional test of a unilateral assertion of powers by the larger government. The constitutional reform that derives from this analysis would be to authorize some specified share of states to enjoin any federal law, regulation, or court ruling within some specified period. A specific amendment to the Constitution consistent with these principles would provide for the nullification of any federal action by the vote of more than, say, a majority of the state legislatures within one year after the date of the last vote. This amendment would provide a considerable period for both reasoned evaluation of the federal action and a continued federal abuse of its constitutional powers, but it should protect the nation against both ephemeral whim and an indefinite extension of federal powers. The primary expected effect of such an amendment would be to force a compromise that would avoid exercise of the nullification authority on most issues.
A Secession Amendment
One other asymmetry in the Constitution, of course, is that it provides specific rules for admitting or forming a new state but no rule for secession. Those public choice scholars who have addressed this issue, including Prof. Buchanan, all conclude that a secession clause would be desirable if there is any threat of a geographically based permanent coalition.2
The desirable terms of a secession clause, I suggest, are the following:
First, secession should not be based on a casual or ephemeral decision. For that reason, secession might be conditional on the approval by two successive votes in the affected region, separated, say, by two years.
Second, the secession clause should include clear provisions affecting the disposition of the local assets and the general liabilities of the larger government.
Subject to these terms, secession should not depend on the approval of the larger government.
Adding a secession clause to the Constitution, however, does not seem worth the effort. The major fault lines in American politics, despite the recent metaphor of red states and blue states, are no longer very correlated with state borders. Few people have any significant loyalty to a state. A secession clause would be an insurance policy against a dominant coalition that is geographically based but one that is unlikely to be very valuable in the foreseeable future.
A Personal Conclusion
The unique potential strength of a compound republic is the opportunity to use each level of government to protect individuals against abuses of constitutional authority by the other level. Only power can check power. The full benefits of a compound republic will not be realized until we are assured that the federal government would protect our constitutional rights against actions by the state and local governments and the state governments would protect our rights against an abuse of authority by the federal government. Toward that end, the repeal of the 17th Amendment would be my highest priority.
1James M. Buchanan, “Coercive Taxation in Constitutional Contract,” in Explorations in Constitutional Economics, (College Station: Texas A &M Press, 1989).
2James M. Buchanan and R.L. Faith, “ Secession and the Limits of Taxation: Towards a Theory of Internal Exit,” American Economic Review, Volume 77 Number 5, 1987.
Response to Comments
My initial paper, taken in combination with the solicited comments, indicates the difficulties faced in any effort to commence meaningful dialogue on constitutional change. Almost any specific proposal that may be advanced becomes immediately subject to nitpicking criticism of details, thereby shifting attention away from the broader principle that motivates the whole exercise. In such situations, my natural tendency is to back off engagement on details and to return the discussion to bedrock. And I do this here, perhaps despite the hopes of the editor and despite my earlier claims to specificity.
Within such a fortress, my position becomes much less vulnerable, or so it seems to me. I start from a set of presuppositions that are surely broadly acceptable. Few serious observers are sufficiently Panglossian to judge the United States political order to be working well, and certainly not to the extent that improvement is beyond the possible. A more questionable presupposition is that constitutions matter, that the structural parameters within which politics takes place affect the pattern of outcomes emergent from that politics. As noted at the start of my initial paper, prospects for improvement are best addressed at the level of constitutional structure. My title “Responsibility, Generality, and Natural Liberty” summarizes my own evaluative judgment on elements of this structure that should command attention.
All details aside, who can question the necessary balance of the fiscal account? The opportunity costs of resources that are devoted to putative collective purposes are measured by the value these resources might produce in other employments. The ultimate incidence of collective action, whether temporal or distributional, is determined by the interactive behavior of those persons who act in constitutionally assigned roles. A balanced-budget requirement, in almost any variant, would bring an element of order into the chaotic fiscal process. And, importantly, any prior discussion of such a requirement would influence public attitudes, independent of whether or not constitutional change is actually made, and also would modify the possible efficacy of such a rule once in place.
As to my second suggestion that political action be constrained by some requirement of generality in application, the rhetoric itself is critically important, even more so than in the first case. Rent-seeking, inclusively defined, uses up an increasingly large share of the nation’s potential value, almost all of which is aimed, in one way or another, at modifying the pattern of political outcomes so as to secure differentially favored treatment for defined groups. As coalitional rotation insures near universality, however, free-rider logic points toward negative-sum sequences of results. How can one special interest gain discriminatorily so long as all interests aim to do the same?
Of course, major issues of application and implementation must arise in attempts to impose any formalized requirements for political nondiscrimination or generality. And here I acknowledge that, along this dimension, the role for the judiciary might be expanded. But a judiciary that searches for criteria of nondiscriminatory political action seems preferable to judicial acquiescence in the legislative financing of bridges to nowhere. At the least, those who seek to legitimize overt departures from the generality norm might be forced to do more than mouth slogans abut some nonexistent national interest.
My third suggestion was, as I acknowledged, the most provocative. I advanced it from the sense that the regulatory power granted to government in the original Constitution has been extended beyond all meaningful limits, and especially during the course of the twentieth century. The collectivistic regulatory thrust into the liberties of persons to enter into voluntary exchanges owes its origins to the dual fatal conceits that, somehow, those empowered with political authority not only know what is best for the whole membership of the polity but, armed with this superior knowledge, will act toward the achievement of its dictates. The epistemological presumption here is, of course, inconsistent with the whole idea of natural liberty, and the incentive incompatibility simply jumps at us now, after having been ignored for so long.
Yet there are generally desired limits on the liberties of persons to enter exchanges. How can these liberties be regulated collectively without omnipresent political overreaching? Once again, the constitutional rhetoric might serve a useful role. To declare, carte blanche, that regulatory intrusion into liberties of exchange lies beyond constitutional limits would require that particularized exceptions be subjected to strict scrutiny.
One substantive suggestion that warrants notice emerges from the responses: Niskanen’s proposal to repeal the Seventeenth Amendment, concerning the direct election of members of the Senate. Personally, I should heartily endorse this proposal. Further, I acknowledge that my threefold listing did not incorporate the federal basis of our whole constitutional structure, which is or should be a bedrock principle.
Niskanen’s proposal has the dual advantage of being quite specific (and thereby immune to the criticism-in-the-small that plagues discussion of more general constitutional norms), while, at the same time, evocative of a basic philosophical issue, namely, the division of sovereignty between levels of governance. By comparison, however, with the three suggestions in my initial paper, Niskanen’s call for the indirect empowerment of the states seems to be more remote from any sense of public prejudice and understanding. In partial defense of my listing, I should argue that there remains a residue of understanding that government should live within its means, that persons should be treated equally, and that government should not interfere with our liberties. These attitudes seem to be different in kind from those that motivated Robert E. Lee to choose to lead the Army of Northern Virginia rather than the Army of the Potomac. In this century, federalism, as a principle of political order, may simply be too abstract to command much public attention, as the European experience over recent decades has demonstrated.
Notes on the 17th Amendment and States’ Rights
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 more complicated.
Prior to the Amendment, many states had improvised de facto direct election systems via party primaries and nonbinding popular votes (aka “the Oregon Plan”). So mere repeal might not change much, unless these improvisations were also prohibited by amendment. Also, the Amendment was an important harbinger of one person/one vote, bypassing malapportioned legislatures and eliminating all sorts of democratic oddities that existed under the pre-Amendment regime. (For example, in 1858, Republicans outpolled Democrats in Illinois, but Douglas beat Lincoln in the Senate race thanks to various quirks of districting.) In addition, the Amendment has created an important pool of democratically-selected and foreign-policy savvy leaders who are plausible presidential candidates. (Governors and House members are also directly elected, but have much less experience with foreign policy; Cabinet members are not elected.)
The Seventeenth Amendment has also probably reduced corruption in state legislatures, whose members were, under the pre-Amendment regime, more than occasionally bribed in connection with Senate elections. And there are other effects to consider, as I explain in my discussion of the Seventeenth Amendment in my new book, America’s Constitution: A Biography, at pp. 409-15.
A better states’ rights modification of structure might be a term-limits amendment, which would increase traffic in the reverse-commute direction between DC and state capitals, as more termed-out Congress members would seek positions as state governors, etc. (And the expectation of this reverse-commute might change nationalizing incentives in Congress itself.) How might existing Congresspersons be induced to vote for such an amendment? See my new book at pp. 95-97, 294-95, 315-16, 417-18.
Also, if we are considering Senate changes, how about thinking about reducing the malapportionment of that body? (Again, for an account of how existing small states might nevertheless be induced to vote for such a change, see the above-cited pages.) And while we are at it, how about rethinking the electoral college? No state or major world democracy picks its chief executive this way. Why should the feds? (For more background on why the Founding generation embraced the college—largely to accommodate slave states—interested readers may wish to consult my book at pages 148-59, 36-47).
Finally, a proposed amendment to satisfy both libertarian free-traders and liberal egalitarians. How about allowing talented persons who come to our shores from abroad, become citizens, and then succeed here to run for President on an equal footing with those of us who were born in the U.S.A.? The reasons the Founders had for limiting the options of both voters and immigrants no longer would seem to apply. (For a discussion of why the Framers included the “natural born citizen” clause, see my book at pages 164-66).
Odds and Ends
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 support for the specific language.
Prof. Amar’s second response, I suggest, misinterprets the effect of the 17th Amendment. He claims that “… the Amendment has created an important pool of democratically-selected and foreign-policy savvy leaders who are plausible presidential candidates.” Before the amendment, however, the Senate had included such generally recognized leaders as Calhoun, Clay, Seward, and Webster, all of whom later served as Secretary of State and/or as a candidate for president. After the amendment, the only two presidents to be directly elected from the Senate were Harding and Kennedy, both of whom died in office following an undistinguished record. Amar also misdescribes a repeal of the 17th Amendment as a “states’ rights” modification; the primary effect of a repeal of this amendment would be to restore the role of the states in the routine decisions of the federal government. Most of Prof. Amar’s proposed amendments would be to further “democratize” the Constitution, without explaining how this would improve the performance of the government.
I am surprised that none of us mentioned one of the most ambiguous features of the Constitution: the potential conflict between the unenumerated (9th Amendment) rights of individuals and the unenumerated (10th Amendment) powers of the states. Many of the more controversial decisions by the Supreme Court involve taking one or the other side of this conflict. I mention this issue primarily because I have no idea about how to resolve this conflict and would value your suggestions.
Senators and the 17th
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 the Senate (as either a senator or a vice president), after enactment seven of the next ten presidents would be Senate veterans. An even more dramatic shift appears if we focus only on actual senators who were later elected president—a category that describes only one of the ten men most recently elected to the White House before the ratification of the Seventeenth Amendment, but that encompasses five of the next ten elected presidents. Similarly, while ex-senators accounted for only two of the ten most immediate pre-amendment vice presidents, they would account for six of the next ten. Interestingly enough, since 1944 every Democratic Party Convention save one has named a current or former senator as its vice presidential nominee.
I also explain that, although former Senators were in fact important in presidential contests prior to the Civil War, the pattern changed somewhat after the Civil War. Niskanen mentions the antebellum figures of Clay, Calhoun, Webster, and Calhoun, whereas I concentrate on those who actually won the Presidency, as follows (pp. 414-15):
The Seventeenth Amendment probably did enhance the presidential prospects of senators by sharpening their populist electoral skills, public visibility, and perceived electability. In the early republic, the Senate was a notable nursery for future presidents. After Washington (who of course as the first president had no opportunity for a prior job under the new Constitution), eleven of the next fourteen presidents had served in the Senate, either as a senator or as the Senate’s presiding officer (i.e., the vice president of the United States) or both. But the Civil War marked the start of a new, middle-republic pattern, in which popularly elected governors tended to outshine legislatively chosen senators as successful presidential candidates. After Grant’s departure, five of the next nine presidents were big-state governors—two Ohioans, two New Yorkers, and a New Jerseyan.
Then came the Direct Senate Election Amendment. By strengthening the populist credentials of senators, the amendment helped restore members of the upper chamber to their early preeminence (alongside generals and diplomats) as presidential prospects. This change was nicely visible in the two presidential elections that immediately followed the Seventeenth’s enactment. The first, exemplifying the middle-republic model, featured two big-state ex-governors, Woodrow Wilson and Charles Evans Hughes. In the second, in 1920, Ohio’s sitting governor, James Cox ran against one of that state’s sitting senators, Warren G. Harding. As a member of the Senate class of 1915, Harding was in the very first set of men to reach the Senate the ‘clean’ way under the new, Seventeenth Amendment regime. Six years later, the presidency was his.
As for states’ rights, I think that “restor[ing] the role of the states in the routine decisions of the federal government” is connected to states’ rights.
 Of the ten presidents from Grant through Wilson, only Arthur (as VP), Harrison, and TR (as VP) had served in the Senate. (As previously noted, Garfield was tapped for the Senate but did not serve.) Of the next ten presidents—Harding through For—dall but Hoover, FDR, and Eisenhower had Senate experience (Coolidge and Ford only as VPs). If we focus only on elected presidents, Arthur and Ford drop out of the analysis, making Lincoln the first elected president in the tally and Carter the last.
For other recent efforts to measure traffic on the road between the Senate and the White House, see Robert L. Peabody et. al, “United States Senate”; David R. Mayhew, America’s Congress (2000), 153-57; Barry C. Burden, “United States Senators as Presidential Candidates,” Poli. Sci. Qtly. 117 (2002): 81.
 Between Washington and Lincoln, the only presidents who spent no time in the Senate were Madison, Polk, and Taylor. Between Grant and Harding, the only presidents who spent no time in governorships were Garfield, Arthur, Harrison, and Taft. Note also that from 1804 through 1860, “all but five of the twenty-four major party [presidential] nominees (excluding the renomination of incumbent presidents) had had some prior service in the United States Senate.” Ibid., 241.
Call Me a Panglossian
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 indeed. In a system that does not work well, reform of any kind is likely to result in improvement, or at least upheaval that will spawn further change; the downside risk is small, while the upside potential is high. But we should be much more reluctant to accept fundamental change in a system that has proven itself to be working well, or at least well enough. In such a situation, a major change can result in major harm, and instability may lead from plenty good enough to pandemonium.
That having been said, I’m perfectly willing to consider change, provided we can predict with a fair degree of certainty the likely effects. This is always a tricky business, but more so in a situation like this where the author—here Dr. Buchanan—gets less specific rather than more as he is pressed for details. The devil is usually in the details, and it is only by examining and evaluating the details of a proposed change that one can hope to understand how the best hopes and aspirations of the proponents will fare under that supreme law with no exclusionary rule: the Law of Unintended Consequences. I might thus agree with Dr. Buchanan that fiscal responsibility is swell, and yet have very different degrees of enthusiasm about whether fiscal responsibility is to be enforced by way of the Constitution, depending on the mechanism chosen to achieve that purpose.
I do note an important concession in Dr. Buchanan’s response: “[T]he role for the judiciary might be expanded” under at least one of his proposals. I think “will certainly” could easily be substituted for “might” and be far closer to the truth. I’m grateful for Dr. Buchanan’s confidence in my colleagues and me, but we ought to think long and hard before adopting changes that shift even more power into the hands of unelected judges and, necessarily, away from the political branches of government.
Not that I think we can’t handle it—I surely think we could, some of us more gleefully than others. But I worry quite a bit about a system where political power is being exercised by public officials that cannot be removed by the voters. We’d have, in effect, a constitutional oligarchy. As one of the potential oligarchs, I’d be happy to oblige; but from the point of view of the voters, I’d worry a great deal about being ruled by the American equivalent of the Politburo.
Finally, a short word about the side debate between Prof. Amar and Dr. Niskanen about whether to repeal the Seventeenth Amendment. Unfortunately, I don’t have a book I can plug, though all my articles are available here and here free of charge. Nor do I have any great insight into the history of the Seventeenth Amendment. But I can’t say I’m swept away with the idea of giving more power to state legislatures. This may sound like an awfully anti-federalist thing to say, but I must remind Dr. Niskanen and Prof. Amar that the Founding Fathers, or at least some of them, were as skeptical of local government as they were of the federal government, if not more so. See Federalist No. 10:
[T]he same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,—is enjoyed by the Union over the States composing it… . The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.
More fundamentally, I just don’t see how having Senators appointed by the state legislatures will promote any of Dr. Buchanan’s goals, or any other desirable ones. It will surely not promote fiscal responsibility—at least I can’t see how. It cannot possibility promote equality to give the legislatures of Rhode Island and Wyoming the same power as those of New York and California. And, as for commitment to natural rights or the principle of non-interference, it may well cut the other way, as Senators beholden to state legislators may be more likely to promote local economic and trade interests than Senators elected at large. Nor do I understand what benefits—other than a nostalgic attachment to the good old days—would be served by this change, and nothing my colleagues have said about it seems terribly persuasive.
Once again, I’d err on the side of caution: If it ain’t broke, don’t fix it.
One More Round: The 17th and Constitutional Interpretation
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 state government power that, I suggest, was critical to the limitation of unauthorized federal powers for 124 years.
To Judge Kozinski: You are correct that the authors of the Federalist Papers, in making the case for the proposed Constitution, argued that the national government would be less subject to “faction” than would any individual state. Among the much larger number of members of the constitutional convention, however, there was only one vote against the provision that U.S. Senators would be selected by the state legislatures. The primary effect of this provision on fiscal responsibility is that it contributed to limiting the unauthorized expansion of federal powers. In 1913, the year in which the 17th Amendment was ratified, total federal outlays were 1.8% of GNP, almost all of which was for the military and the deferred costs of prior wars, and the total federal debt was 3.0% of GNP. Total federal outlays are now 20.3% of GNP, most of which is for programs for which there is no explicit constitutional authority, and the federal debt held by the public is now 36.4% of GNP.
On Constitutional Interpretation
The case for a strict interpretation of the Constitution is not dependent on a shared judgment that the Framers got everything right, either for their generation or ours, even though their political values and judgement were extraordinarily good. The primary case for a strict interpretation of the Constitution is to force the demands for constitutional change through the Article V processes for amending the Constitution. This would assure that any changes in the Constitution would reflect a very broad consensus. A change in the effective constitution, in contrast, now requires the approval of only the president, a majority of both houses of Congress, and a majority of the Supreme Court. In other words, we have politicized and democratized the process of constitutional change — to the point that the written Constitution is now no longer even a parchment barrier to constitutional change.
My thanks to all of you for your contributions to this dialogue.
A Few Final Thoughts on Constitutional Federalism
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 to circumvent state legislatures. And unless a new Amendment were to prohibit devices akin to the pre-1913 “Oregon plan,” the new Amendment would be unlikely to have much effect. Most state constitutions, I suspect, would quickly be revised to allow voters to express their preferences for U.S. Senators in formally “nonbinding” beauty-contest elections and state legislators would find it difficult to go against the expressed will of the electorate.
Judge Kozinski invokes The Federalist Number 10. Although this essay is canonical today, it was largely disregarded in the great continental debate over the Constitution in 1787-1788. Far more significant were the earlier Federalist essays–especially The Federalist Numbers 4-6 and The Federalist Number 8. These papers developed a national-security and geostrategic argument for union based on the need to eliminate internal land borders and rely on the Atlantic Ocean for national defense purposes.
According to this theory, island nations like Britain were far more free than nations with land borders because island nations could rely on navies more than armies, and navies were less threatening to liberty. Hence the states needed to form a “more perfect union” amongst themselves akin to the perfect union formed between England and Scotland in 1707—or so argued the early Federalist Papers. I mention all this because it suggests that American liberty over the last two centuries has been protected not just by parchment barriers in the constitution, legislative bicameralism, separation of powers, and federalism, but also by our oceans, which have shielded Americans from a variety of Old World tyrants, and by our lack of a large standing army on American soil in peacetime. This entire system of liberty-protection depended on the impermissiblity of one state—or one region—having the unilateral right to secede. So on that question, I stand with Mr. Lincoln and, it seems, against Dr. Niskanen. But the challenge for the 21st century—in a world of global warming, worldwide pandemics, supersonic air travel, a global internet, international terrorism, and so on— is for Americans to come up with new constitutional doctrines of liberty-protection that do not rely so much on our oceanic isolation.
For readers seeking more background on the geostrategic argument for union and on the distinction between armies and navies in The Federalist Papers and in the Constitution, see Chapter One of my recent book, America’s Constitution. (Yes, Judge—another plug. But isn’t that what authors should be doing in a free market?)