Federalism and Interstate Commerce Links

1. I'm not going to bother linking all of them (just the one that bugs me!), but Andrew Sullivan has been writing a lot about Mitt Romney's attempt to present his case on health reform, and the political strategies involved. One of the earlier posts that bothers me is titled "Romney Hides Behind Federalism". It's very troubling to me that federalism is seen as a fake solution that is whipped out for expedience - that Sullivan isn't even serious about the prospect that perhaps Romney did health reform when he was governor because he thought it was a viable decision for governors to make and implement. Instead, people want to turn Romney into a closeted Obamacare advocate. I've said from the beginning that I would have liked to see three things out of health reform. Obama disappointed me on two of those things and succeeded on the third. He did well by relenting and agreeing to John McCain's initial proposal to end (or at least seriously cut back) the tax subsidies on employer provided benefits. He still had an individual mandate, which I opposed, and he also didn't provide a whole lot of flexibility for state experimentation.

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2. Greg Mankiw links to an evaluation of ARRA (the stimulus) that finds a negative impact on jobs. What doest his have to do with the states and interstate commerce? Well, the study is done with state-level data and more crucially the model specification is unable to incorporate the impact of interstate commerce which is - to put it mildly - an enormous omission. One nice thing about the study is that it does attempt a sophisticated identification strategy. It uses two instruments - state sales tax intensity (to instrument the decline in state budgets - which I've always noted has been an important contractionary force that people ignore), and state highway funding formulas (which should be exogenous to the recession and are an important determinant of ARRA funding levels). I'm especially glad to see them instrument for state budget losses. But here's the problem - the only impact they can estimate is between states that received relatively more or relatively less stimulus. So if Virginia received $900,000 in stimulus and Maryland received $1,000,000 in stimulus they're going to try and identify the impact of that extra $100,000 of stimulus. Theoretically that could be fine - it'll provide a marginal effect that can be attributed to the whole package. My first (more minor) concern is that when you infuse a lot of money into an economy like this you're ultimately going to run into bottlenecks and - yes - crowding out at least on the margin and in certain areas. Is that marginal effect of the last $100,000 the same as the marginal effect of the first $700,000? Likely it's not.

That's a relatively minor concern, actually. The bigger concern is the interstate commerce point. A lot of commerce is done across state lines and that can't be accounted for with this sort of estimation strategy because the ARRA funds going to Virginia not only are not used to estimate job levels in Maryland - the job levels in Maryland are actually counted against the Virginia impact estimates. To simplify things, you can think of the model as asking "what is the effect of (VA stimulus-MD stimulus) on (VA jobs-MD jobs)". If MD stimulus positively impacts VA jobs or if VA stimulus positively impacts MD jobs, you're going to actually reduce the estimated marginal effect. I don't know if this sort of thing completely eliminates the prospect of state-level studies of fiscal multipliers, but it's certainly something that needs to be taken into account.

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3. Matt Yglesias has a good treatment here of arguments against the clear English of the commerce clause that amount to "well if you can do that, what can't you do?". It's never been an especially impressive argument. Yglesias points out some obvious things you can't do, including violating other Constitutional provisions like the first amendment and rights to due process. I've noted before that you also can't violate the general welfare clause - special priveleges for the sake of private welfare skirt Constitutionality in a real way that belies these claims about "if you can do that what can't you do?". But more importantly, these arguments demonstrate a real lack of commitment to the very idea of republican virtue. The Constitution is an important document because it limits the state, thereby protecting incursions on liberty. But since when has it been the only thing standing between the state and liberty? It has always been recognized that for a republic to succeed you need a virtuous populace. You need a populace that won't pursue inappropriate uses of power (or rectify the situation when such powers are pursued).

People act as if we can't have a meaningful and successful republic if the Constitution doesn't provide the ultimate and final demarcations of power. This is an excessively myopic critique, in my mind. We want to be able to achieve public ends with the republican institutions we have set up. Half the petitions raised by Jefferson in the Declaration were complaints about George III not letting the colonial legislatures pass laws that were for the public good. Since the beginning of the republic, it has been understood that we want a government that allows us to govern ourselves - that gives us the ability to make important public investments and decisions. A nit-picking Constitution threatens that, so instead we have a Constitution with real restrictions on the state - but restrictions that are open to interpretation, and yes - deliberation. It amazes me that this very idea that things are left open to deliberation and interpretation is viewed as a threat to liberty, rather than a source of real liberty.

In a free society, we deliberate within a framework of broad restrictions on the state, and if we want to keep that free society we have to preserve the republican virtues that are required for the preservation of liberty. The Constitution is a tool, not a master. It helps us preserve liberty - it's not a free pass on deliberation or a guarantee of success or an ultimate bulwark in defense of liberty. It's like a marriage. The contract itself doesn't guarantee anything. You have to work at your goal.

Discussion on the Constitution at ThinkMarkets

Troy Camplin and I have been discussing more of the Constitution this morning at ThinkMarkets, and rather than continue to clog up that venue, I thought I'd move the most recent comments over here for thoughts.

Troy blogs here and here (take a look at Troy's recent post on the General Theory at the second link I provided and see if you can catch his mistake on Keynes's use of the savings identity).

Troy Camplin Says: ...Sorry, but the 9th and 10th amendments make it clear that any powers not explicitly given to the federal government are not to be held by the federal government at all, but by the people (note that “people” is first in the 10th amendment) and the states, respectively.

Words mean things. It’s not a postmodernist free-for-all.

Daniel Kuehn Says: Troy – traditionally the disputes are over interpretations of Article 1, not the eighth and ninth amendment. I don’t know anyone that disputes the idea that rights not stated are reserved to the people and the states (the 14th clouds the picture a little of course).

I’ve seen this “words mean things” line come up several times now, and I’m not sure why you (and Daniel and others) act like this is some sort of point in your favor. The alternative argument is not that we get to make up what’s in the Constitution – it’s that word’s mean something and originalists ignore the plain meaning of the words. Why do you take “disagreeing with Troy” to mean “postmodernist free for all”?

Troy Camplin Says: That’s your interpretation, Daniel, and not a very mature one, at that. Try reading in context.

There are plenty of things in the Constitution I disagree with, but that I’m not going to bend with a postmodernist reading that allows words to mean “exactly what I want it to mean, no more, no less,” as the postmodernists insist. Words DO mean things. They don’t get to mean whatever you want them to so that you can get whatever reading you want. Which is clearly what you want. It is of course easier than actually following the law of the land and making changes according to the way the Constitution allows.

On the other hand, your argument seems to be that whatever you happen to disagree with is unconstitutional, but all the rest our government does is clearly constitutional. Project much?

But you are right — nobody debates the 9th and 10th (the two I was talking about) amendments. They just ignore them completely, pretending they are not there.

Daniel Kuehn Says: Troy - It’s fine that you and I disagree on the plain meaning, and I’m not immature for it. I don’t think you’re a postmodernist because you’re wrong – I just think you’re wrong. I find it odd that so many on your side think that because we’re wrong we’re also loosey-goosey with language.

re: “They don’t get to mean whatever you want them to so that you can get whatever reading you want. Which is clearly what you want.”

That’s the last thing I want. The Constitution provides no constraint on federal power and no structure to American governance if you can get whatever reading you want out of it.

Troy Camplin Says: Your last statement is immature. That’s what I was refering to. I did not say you said I was a postmodernist. I said that those who essentially argue that words can mean whatever they want them to mean, so the Constitution means whatever they want it to mean are postmodernists. They do violence to all sorts of texts, not just law.

The ones who are wrong have typically used loosy-goosy language. Thus the accusation.

You can make no argument from the Constitution that allows for government bailouts for companies any more than it allows for farm subsidies [I had earlier argued that farm subsidies probably don't pass constitutional muster].

Daniel Kuehn Says: Troy – you suggested that I interpret the Constitution to mean whatever I want to mean, and since I clearly don’t all I can conclude is that you just don’t like how I (and most others) have interpreted the plain words. There’s nothing immature about how I connected the dots there. I know better than to call you a post-modernist, but given the standards that you’ve set up for it you seem as much a post-modernist as I do.

On bailouts – it’s hard to get enthusiastic about them, but certainly the systemic benefits of the bailout qualify it as a potential promotion of the general welfare in a way that farm subsidies simply aren’t. Moreover, regulation of commerce between the states has long been interpreted to encompasses the ensuring the regularity of the channels of commerce, and attempts to maintain credit markets certainly seems to fall under this. In light of these obviously constitutional reasons for bank bailouts, and the limited time with which to respond, direct provision of funds could easily be justified as a necessary and a proper action for implementing policy. None of these elements are present with agricultural subsidies (although perhaps these were more systemic and plausibly Constitutional in the 20s and 30s).

It doesn’t mean bailouts are wise policy (that which is permissible is not always advisable), and it doesn’t mean we won’t deliberate over whether the methods are actually necessary and proper (that’s what legislatures and courts are for – to deliberate these disagreements), but it seems obvious that there’s Constitutional justification.

I don’t want to continue to crowd this blog – feel free to respond if you want, but I’m moving these last comments over to my blog so we don’t choke the discussion going on here.

Chidem Kurdas bashing the "Constitution Bashers"

I don't know why some people have this assumption that if people disagree with you about the Constitution, they must not like the Constituion. Chidem Kurdas, of ThinkMarkets, considers people who question her brand of originalism "Constitution Bashers", although she doesn't even manage to successfully articulate their argument.

At issue is her allegation that a lot of people who don't think like her think the Constitution is out-dated because technology has changed. She even cites an example, but apparently misses the point. The argument usually goes that technology has changed since 1787, but human nature hasn't. Originalists can't look for what the founders would have said about things like the internet or airplanes or space flight. They have to reason from analogs and simply infer what the Constitution says about the proper relation of the government to the people. That's usually the technology argument you hear (and that's what her citation seemed to be saying), not "well we have the internet now so the Constitution is an anachronism".

She also gets upset over the notion that people would find the Tea Party push to have the Constitution read "comical". She writes: "I’m not sure why reading the Constitution is considered comical, but I suppose this is because the document is seen as fuddy-duddy." I don't know how you could have a bigger tin ear on the question! It's not that critics had anything against the Constitution! They had a problem with Tea Partiers using it for political theater. It wasn't the end of the world or anything, but I didn't appreciate the Constitution being used as a prop either. Why is it so hard for Kurdas to see this?

What's most ironic is that she goes on to talk about the amendment process, suggesting that if we "non-originalists"* don't like what's in the Constitution and think it's old-fashioned we can amend it. I could say the same of Kurdas! All the things that the Tea Party complains about are derived directly from the enumerated powers - many from the general welfare clause and the necessary and proper clause. A few from the commerce clause, but as I've shared in the past I don't think the commerce clause legitimates as much as it is claimed to. The Constitution was intended as a republican, classical liberal document but it was never intended to be a libertarian document. Many libertarians remark on this. You can't say you agree with the Constitution one day, conveniently ignoring all the non-libertarian passages, and then deny that Congress has its enumerated powers the next. Kurdas's arguments on technology and how old-fashioned the Constitution is are red herrings. If she has a problem with the plain words of the Constitution and the bulk of constitutional jurisprudence, and if she wishes the neo-mercantilist liberal founders had written a more libertarian document, then she's welcome to agitate for amendments.

Until then, I'd prefer not to be called a Constitution basher.

* I hate this term, because I consider myself an originalist. I don't think the founders originally intended a lot of what they wrote to be read the way the likes of Churdas, Scalia, and Thomas read it.

The Constitution and Congress

The Washington Post reports that the Constitution will be read on the House floor in January, and more importantly, that every House bill will include Constitutional justification for it.

I think this is an excellent and an interesting move. Tea Partiers and even a lot of libertarians are convinced that people who don't agree with them consider the Constitution to be an anachronism or an embarassment. Of course that's ridiculous. But it is true that the Constitution isn't an explicit part of the legislative process these days.

Tea Partiers think this will force Washington into agreeing with their concerns. I actually think it will have the opposite effect (if Tea Partiers are open to it). It will demonstrate the far more normative interpretation of the Constitution that the Tea Partiers don't even seem to be aware of, and it will educate people who don't normally think in Constitutional terms to stand up to Tea Party bullies who insist they're the ones being true to the legacy of the founders.

I think Republicans not necessarily associated with the Tea Party will also realize that their understanding of the Constitution is largely in line with the Democrats and the rest of the country, they simply take a more conservative stance on the wisdom (but not the Constitutionality) of certain laws.

My advice to our representatives: don't rely as heavily on the Commerce Clause as you have been. I think it's a relatively weak power - I do think the intention of regulating interstate commerce was clear. Real, direct, commercial regulation - even parts of the health reform bill - can legitimately be justified by this power, but it's always a stretch when every single piece of legislation touching the economy is justified by it. You have the power to appropriate money to provide for the general welfare. This was understood as a broad discretionary authority. You can put up money to make public programs for health care and provide subsidies, etc. That is so thoroughly Constitutional it's the power the founders put first on the list of enumerated powers. To make that spending most effective you'll probably need to pass a few rules and regulations, set up a few administrative apparatuses, etc. Those things - to me - sound like necessary and proper measures to help provide for the general welfare. I wish more weight would be given to the general welfare and necessary and proper clauses, and less weight given to the commerce clause.

It amazes me...

A few things have really amazed me recently.

- It amazes me how "promote the general Welfare" can be rewritten to mean "to promote the following enumerated powers" without anyone blinking an eye...

- It amazes me how people are thought to "defend the Constitution" when they accuse others of overreaching, but not when they assert the right to republican self-government provided in the Constitution against those who would deny them that right...

- It amazes me that we forget that almost all of the grievances brought against George III in the Declaration of Independence involve either (1.) the denial of the authority of self-governing bodies, or (2.) the failure of the King to pass beneficial legislation demanded by the people...

- It amazes me that one of the most ideological and political movements in the post-war period actually considers itself to be apolitical or non-political or even anti-politics...

- It amazes me that a politician that has been elected over 15 times, who has been in Congress for longer than I've been alive, who has perhaps the widest - and easily the most fervent cult following of any politician in Washington today, is similarly considered to transcend politics and political opportunism...

- It amazes me that libertarianism is explicitly promoted on some shows on the largest news network in America (and implicitly promoted in many others), and yet it still claims not to have a mainstream platform, and that news network still claims to be out of the mainstream. How can you be the largest network in the industry and not be a part of the mainstream?!?!?

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I don't generally go after conservatives or libertarians for "not caring about the unemployed" or "hating poor people" or "hating the environment". I understand they are not monsters on these questions, and I understand why they might come to the conclusions they do about the appropriate means for addressing these concerns (and in more than a few cases I agree with them - I occupy the market-oriented center-left). I rarely critique conservatives or libertarians on these grounds unless I stumble on a statement or an instance that gives me special reason to.

But what bothers me to no end is when they blatantly and utterly fail on their own terms. When Hill staffers and advocates that are up to their eyeballs in political pandering and strategizing tell me they are opposed to Washington politics. When I not only have to listen to people bend over backwards twisting or simply dropping the words of the Constitution to fit their viewpoint on an issue - but I also have to listen to them tell me afterwards they are constitutional originalists. And not only that they are constitutional originalists, but that they are defending the Constitution against people like me.

These people aren't originalists - they are de-ratificationists. At one point we called them anti-federalists. It's fine if that's what you are, but don't tell me you have any concern for the Constitution or a broad sampling of our founding principles (certainly they are representing a narrower sampling of anti-federalist founders).

No one instance inspired this. A fairly wide collection of things I've read and conversations I've had over the last week or so inspired it, many having to do with the health reform ruling.

States Rights and the Constitution in Virginia

Virginia House Speaker Bill Howell (R-Fredericksburg) has announced that the Virginia legislature will consider an amendment to the Constitution that will allow two-thirds of the state legislatures to repeal federal legislation. Right now, I have no idea how plausible this is - I am skeptical about how far it would get, but it's fascinating for at least two reasons.


Reason 1: It's a pretty decent reform that is not what Tom Woods has been proposing
First, like the repeal of the seventeenth amendment, I think this is actually an excellent Constitutional reform. The arc of Constitutional reform for most of the 19th and 20th centuries was in the right direction: expansion of democracy, incorporation of the states into Constitutional defenses of liberty, and the solidification of the federal government as a functional institution of governance. But what we've found is that while democracy and equality have benefited from the amendments we've passed, federalism has atrophied as a meaningful pillar of American society. The question is, how do we give greater primacy to federalism? For a while we tried to do it legislatively with various devolution measures, and these provided a mixed record of success. In the end, my assessment is that these devolution measures ended up giving the states more freedom of action, but essentially putting them on a federal allowance. Repealing the seventeenth amendment, which provided for the direct election of Senators, would elevate the role of the states in a meaningful way, and make the federal government accountable to the states. This amendment that will be considered by the Virginia legislature would appear to do the same. Winning two-thirds of the state legislatures for repeal is quite a hurdle, after all. It's a relatively conservative measure, in that sense.

Of course for my libertarian readers, I'm sure this brings Tom Woods' recent push for nullification to mind. Nullification is a tough subject, and I think this is especially true for thoughtful Southerners. On the one hand, if a law is blatantly unconstitutional, I don't think anyone would really balk at local officials who stand up against it. Lots of states have marijuana laws, and have moved against the Patriot Act, etc. I would argue that when nullification is used against truly heinous federal laws as Jefferson and Madison originally intended it to be used against the Alien and Sedition Acts, you don't have a groundswell of opposition to it. We have an inherent sense of what is appropriate without assuming a right of the states to opt-out of the decisions of the Union. Woods doesn't have to make his case on these counts - he'd be preaching to the choir. What bothers me about Woods is that he's trying to push an opt-out understanding of the Constitution that allows any state to appeal to even the most defunct and demolished understandings of what is "unconstitutional" to chart its own course. This is not federalism - this is a repudiation of our constitutional republic. Moreover, this is not what Howell is proposing at all.

I'm sure Tom Woods will embrace Howell's proposal in the Virginia legislature (and I'm sure that lots of normally objective liberals are going to howl against it make vague references to the Confederacy), but it's simply not the same as Woods' nullification. This is not an opt-out for states. This is a reform of the way federal legislation is passed that does provide a greater role for the states, but still relies on very broad consensus for action. Two-thirds of the states deciding they don't like one egregious piece of legislation is very different from South Carolina deciding it doesn't want to be bound by two-thirds of federal legislation because some crack-pot Constitutional "scholar" supplied them with a handful of bad arguments telling them they don't have to. This isn't the Tom Woods nullification plan - this is the anti-Woods states rights plan.

Reason 2: It opens Pandora's Box on the Constitution
Jefferson has remarked that the tree of liberty must now and then be fertilized with the blood of patriots and tyrants, and that constitutions should be scrapped and rewritten on a regular basis. I'll humbly disagree with Jefferson on this point, and submit that he probably would have come around to the modern view himself. Jefferson's primary concern was that he didn't want previous generations binding future generations to their understanding of government. In other words, Jefferson was a progressive and a democrat that wanted flexibility in government. What I think we've learned is that (1.) war is an awful and scarring way to keep government flexible, and (2.) the Constitution was constructed with deliberately flexible language for precisely the reasons that Jefferson was concerned about: the founders wanted to leave a wide open field for their descendants to chart their own destiny, within a structure that they carefully set to balance liberty, equality, and self-governance.

What does this have to do with Howell's proposal in the Virginia legislature? Howell is proposing to pass this amendment with a constitutional convention. Two-thirds of the state legislatures would have to call for a convention, at which three fourths of the states would have to ratify the amendment. No constitutional amendment has ever been passed in this way - all have originated in Congress. One of the concerns is that if a convention is called, the whole Constitution could be scrapped or modified. This is essentially what happened with the first Constitutional Convention, after all. Needless to say, I think this probably wouldn't be an ideal move. Our Constitution is working well, but I don't hold the document sacred. I'm more concerned that I don't think anyone today could write one that would improve it, and I'm especially concerned about the hostilities and passions it could raise. Of course, if a convention were called without incident or radical change, that could be a great step forward.

Federalism is weak in this country. The Constitution has served us well, but people don't place a lot of value on it and the ones that loudly proclaim the value they place on it often distort it to fit their own ideology. This Howell amendment probably won't pass, but at its heart it offers a very good proposal and raises some interesting issues.

The burden of the past

"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be transmitted I think very capable of proof. I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;" that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him." - Thomas Jefferson to James Madison, 1789

I've written on the importance of time for political philosophy and economics many times before. Two recent posts brought it to mind again.

1. Don Boudreaux shares this excellent article by Bart Hinkle on voluntary and involuntary obligations. This is the comment I left about it on Don's blog (my argument should be familiar to people who follow my thoughts on this sort of thing on this blog):

"Really excellent - I think Nozick's approach to these questions that Hinkle applies is very important, my only concern is that I think people underemphasize the fact that any voluntary contract is going to be constrained by a rights structure that is imposed on us institutionally/externally. You can't contract without an understanding of rights, so the question becomes "do I get a say in what my rights are?". You clearly don't - that institutional framework is exogenous, although clearly always changing and evolving.

This is why I like the contractarian approach of a lot of libertarians (as opposed to the approach of guys like Rawls) and I identify with it, but I don't think it has pushed the institutional understanding of what a "voluntary contract" would really mean far enough (at least in what I've read and seen people argue - I'm not claiming to be an expert).

I think one of the more important pieces that should be brought along with Nozick is a short essay that Dewey wrote in 1935 about property rights - I forget what it was called exactly. It was essentially making the same point that I did above - that what you can "voluntarily contract for" is dependent on a structure of rights, and the framework of rights that you operate in is externally determined (forced on you, as it were) as well. So if these are "voluntary contracts", they're only "voluntary" in a superficial sense. In addition to the rights structures we inherit, there are also presumably endowments (monetary, genetic, etc.) that constrain our "voluntary" contracting.

The solution, I think, is a Buchanan type approach - constitutionalism. That doesn't solve all problems, of course (you can still ask "was the constitution passed in a just way?", "are future generations constrained by the constitution?", "is the constitution ethical?") - but it at least addresses the problem of the structure of rights under which we voluntarily contract head-on. And ultimately I think that's all we can ask for."

2. Peter Boettke shares this interesting looking paper by Nathan Nunn. It's a survey of the literature on the long-term impact of historical events for economies (ethically the Earth may belong to the living, but in actuality it often does not). I haven't read it, but this is the abstract:

"This article provides a survey of a growing body of empirical evidence that points toward the important long-term effects that historic events can have on economic development. The most recent studies, using microlevel data and more sophisticated identification techniques, have moved beyond testing whether history matters and attempt to identify exactly why history matters. The most commonly examined channels include institutions, culture, knowledge and technology, and movements between multiple equilibria. The article concludes with a discussion of the questions that remain and the direction of current research in the literature."

Something to like in the GOP pledge

Word is getting around about a GOP "Pledge to America" meant to serve much the same purpose as the "Contract with America". The draft is here.

Not much to disagree with at all in the first several sentences. That's to be expected - lot's of good upbeat talk about what America is and stands for, etc. That's followed of course by obnoxious partisanship - more of the regular confusion that because they don't like what's been going on "the American people" don't like it. I hate this sort of talk, but whatever.

And that's of course followed by a lot of promises. Some are relatively innocuous and vacuous - of the "cut pork" variety. Some are insane - of the "balance the budget" variety. It's the predictable hodge-podge. A nice melting pot of bad ideas, forgettable ideas, fear-mongering about Democrats, and laudable shout-outs to individualism and federalism. Normal politics, essentially.

This, though, is an excellent idea:

"Adhere To The Constitution: For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands. This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year. We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified."

We are a constitutionally illiterate culture and that is not a good thing. There have been republics before, constitutions before, federations before, and democracies before. On their own all of these have major liabilities. Perhaps there have been constitutional, federal, democratic republics before the United States, but there are much fewer examples. That's what we offer, and that's one of the factors that has made us so successful. I think you see a lot of constitutional ignorance. The Tea Party and Tim Geithner stuttering during his Congressional testimony are only the two most prominent examples. I don't expect we'll always agree on what constitutes "constitutionality", but constitutionally justifying it in legislative language will help us deliberate over it and think about it and talk about it in a way that we often don't.

Obama on the Constitution

Excellent thoughts on the Constitution, negative rights, and the significance of Constitutional negative rights for understanding the most appropraite ways of pursuing human dignity.

Don't look at the captions, of course - they mangle the message. The insights are great.

Happy Constitution Day

"Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. 'T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject."

- Publius

On Secession

Three blog posts recently on secession:

- OK, the first is technically on nullification - the Mises Institute interviews Tom Woods on his new book on state nullification. For those of you not familiar with him, Tom Woods is an Austrian-oriented historian that I have a big problem with when it comes to the 1920-21 depression. But that's another matter. His new book is on nullification.

- David Ribar, a fairly liberal economics professor at UNC, an alum of my alma mater (William and Mary), former professor at my other alma mater (The George Washington University), and one-time co-panelist at a Southern Economic Association conference, does a round-up of recent secession-happy Republicans, and reviews one case in particular.

I actually think secession isn't as unreasonable a position as a lot of people think it is. I don't see how you can admire the founders and admire Jefferson and the Declaration of Independence in particular and not be ethically and legally fine with secession. We cannot be a nation of, by, and for the people if the people are not free to withdraw their consent to their government (an enormous irony of Lincoln's famous address).

Nullification, I think, is a different matter. It may have been a tenable position in the early antebellum period, when the institutions of governance were being worked out. But decisions were made, institutions developed, and social contracts (much as I hate that term) were forged. Nullification now is repudiation of that institutional evolution. You cannot remain in the Union and repudiate the terms of Union at the same time. To a certain extent, then, I suppose all I'm really saying is that nullification amounts to secession. I oppose the very idea of nullification as a course of action that stands independent of outright secession.

So I actually wouldn't be as critical as Ribar is, but I wouldn't be as enthusiastic as Woods is. My question for secessionists isn't so much "how could you think this is legal or ethical", as it is "how could you possibly think this is necessary or desirable"? They are treating the dumbest move on the part of the South like it was its greatest triumph. I'm not as dismissive of the Confederacy as a lot of people are, and I hold a fairly nuanced view of the Civil War. But even a "less dismissive than average" view of the Confederacy I think can still be nothing more than a qualified disapproval. Even those positively disposed towards the South as a civilization have to recognize the attending evils of the Confederacy, and not just the evils but the unforgivable blunders. And secession is among those blunders. It's not a question of "can they do that?" for me. They can. It's a question of "why would you do that?". The leaders of the secessionist movements in the antebellum South need to be regarded, even by sympathetic Southerners, with "impotent fury" (to quote Harper Lee). One might defensibly say "with Lincoln's army marching and threatening my home, I'll pick up my gun and fight". One cannot defensibly argue that secession was intelligent, or well-advised, or in the interests of the South. It's even more infuriating that so many secessionists, then and now, uphold Washington specifically as an icon; Washington! - one of the greatest examples of what it means to be a "Union man".

Anyway, I'm not lawyer but the legal niceties of secession never bothered me all that much. The right to secede seems to me to follow naturally from the right to incorporate a state in the first place. Any statute on the books that would oppose that right simply begs the question. After all - it's precisely that statue book that presumably one is seceding from! The question of why one would even consider the prospect of secession, so long as the United States remains such a paragon of republicanism, liberty, and democratic representation - that is a question that I simply can't answer.

Anniversary of Constitutional Government in Virginia

Yesterday, June 29th, in 1776, Virginia adopted a constitution for the commonwealth. It was the first state to do so. Patrick Henry would serve as the first governor of the free and independent Virginia. For the better part of the following decade, Virginians would give their lives, their fortunes, and their sacred honor for the cause of American independence and union.

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Who needs the 17th amendment, anyway?

Marc Ambinder skeptically describes one of the pet projects of the Tea Party movement: the repeal of the 17th amendment, initially passed in 1913, which required the popular election of U.S. Senators. Before the 17th amendment, Senators were elected by state legislatures. The argument goes that repealing the 17th amendment would restore states with the power to protect their interests from federal encroachment. I don't think very highly of the Tea Party movement for the most part, but this is actually something that I have always been quite supportive of. It's hardly at the top of my "to do" list, and I don't feel particularly oppressed by a popularly elected Senate, but I do think this change would remedy not only some of the dysfunctions of the federal government, but some of the dysfunctions of state governments as well.

One of the things that I think is important to keep in mind is that this probably won't change the ideological makeup of the Senate very much. There are very liberal state legislatures out there and very conservative state legislatures. If the 17th amendment were ever actually repealed, you can be confident that voters would pay even closer attention to state-level elections, making the electorate voting in the state legislature fairly comparable to the electorate that used to vote in Senators. What it will do is produce a Senate that is more cognizant of the relationship between the federal government and the state, regardless of ideology. In 1996 it was innovative and unusual to give the states such free reign over welfare policy. Unfortunately, the same sort of federalism was not apparent in the recent health reform. A Senate composed of representatives of the state legislatures would be expected to guard the freedom of the states to differentiate themselves on issues of domestic policy on a more regular basis.

With these new found responsibilities and freedoms, hopefully we would start to see states better equip themselves to solve the problems of their citizenry. We would hopefully see less of the non-sensical disconnect between revenue and spending policy apparent in states like California. Fewer states would constrain themselves with dysfunctional balanced budget requirements if they were on the front lines of policy, rather than the faceless provincial administrators that they largely are today. Stronger federalism, such as that which would likely result from repealing the 17th amendment, means a more robust American political economy, decision making that is closer to the citizenry, and a flexibility in policy making that isn't available when the federal government dominates every decision.

Of course, while bringing more decision making closer to the people, this reform would also reduce popular control over the federal government. Is that trade-off worth it? It's hard to say for certain. I'd guess a Senate appointed by state legislatures would probably be less likely to sabotage the popular will with (excessive) filibusters and (obstructive) parliamentary procedure. In that sense, an appointed Senate may actually improve the representativeness of Senate decision making, which today is more often than not held hostage by party leaders.

It's hard to predict exactly how this would go. It's a radical change, to be sure, but I don't think it's as ill-conceived as a lot of people suggest.

Four Reasons Why the Torturers Must Be Prosecuted

I agree completely with Evan that the torturing of prisoners that went on during the Bush administration was unambiguously criminal, and that the Justice Department needs to charge somebody with these acts, even if the burden of proof may represent a steep uphill battle. The torture of a few al Qaeda operatives is important because it violates U.S. and international law, but it's not important for that reason alone. I'm confident that the law is violated all the time - sometimes flagrantly, sometimes accidentally - and not all of these infractions merit public indignation over whether the Justice Department decides to prosecute. So why this time?

- First, because this crime is uniquely heinous. As Christopher Hitchens has said, "It used to be in the press you remember people would say that it simulates the feeling of drowning. You've read that I'm sure. In fact it doesn't simulate it at all in fact you are being drowned." There is a reason that both the Republican and the Democratic candidate for president this Fall came out strongly against torture, and it had less to do with McCain's war experience than it did with the fundamental incongruity of torture with modern society.

- Second, because this is not just a legal violation - it as a constitutional violation as well. While some of the Bill of Rights protections of criminals arguably do not apply to prisoners of war, and those who are tried by military tribunals, the injunction against cruel and unusual punishments has no such distinction. The numerous protections guaranteed by the fifth amendment are qualified by a very vital loophole that the Bush administration has ably exploited: "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The eighth amendment, for what should be obvious reasons, includes no such qualification: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

- Third, and quite simply, the Bush administration has to be held accountable for something with respect to the prosecution of the war on terror and the Iraq War. History will judge the American people to be as complicit with the Bush as the American people were found to be with Jackson's Trail of Tears or FDR's internment camps if they do nothing to right this wrong. The specific points of the Patriot Act, the War on Terror, the Iraq War, the Plame Affair, extraditions, Guantanamo Bay, Abu Gharib, etc. can certainly be debated by reasonable people, and several of these cases have already been tried. Not all critiques may end up being legitimate critiques (I've agreed with the administration on a few of these concerns. For example, I'm a strong supporter of a vigorous War on Terror, and I don't think there's anything wrong with having a prison at Guantanamo, so long as the proceedings there are legal). This third point is therefore not meant to be a thoughtless, blanket indictment of the Bush administration. Instead, it is a recognition that life in America and abroad was radically different between September 11th, 2001, and January 20th, 2009. Some of it was handled quite well, and some of it was handled not as well. But we cannot abandon an evaluation of these years in an effort to "move forward". We can't move forward with confidence without knowing where we may have misstepped in the path. Obama's justification for failing to prosecute for these crimes is completely wrong-headed. If we don't grapple with what was done we have no road map with which we can move forward.

- Fourth, and by far the most important, we must prosecute as a defense against fascist tendencies. I have been enormously critical of news outlets that apply labels like "fascist" or "socialist" to President Obama. That kind of hyperbole is incredibly destructive. So why do I use this word now? It is because I'm concerned about letting the mindset of fascism take root in this country. Allow me to explain my distinction: it is my opinion that the Iraq War was aggressive and unprovoked - that we should have focused our energies on the War on Terror, which we actually had cause to prosecute. Despite my strong disagreement with Bush on the Iraq war, I don't think the war had any tendency towards fascism at all. Bush made a case to the people. He made a case to the international community. He had allies. He got the approval of Congress. A reasonable person could say that he didn't intentionally and recklessly abandon international law. In other words, the Iraq War may have been ill-advised, inappropriate, and perhaps even illegal: but it was done in broad daylight, it was not executed by personal fiat, and it was prosecuted in line with the Constitution. It was therefore not fascist. The same is true of the stimulus package and the TARP program. I'm infuriated when these things are called "fascist", not just because I agree with their necessity, but also because the critics ignore the clear consistency of the method of passing the stimulus package and the TARP with the liberal political tradition and democratic principles. No such consistency exists for these acts of torture, and while they may not be fascist themselves, they represent "fascist tendencies". Fascism is about method, not policy. A "benevolent dictator" could implement the same programs that any presidential administration in history has enacted, but they would still be fascist if they did so by will of the president, rather than by the will of the people, through the Constitutional apparatuses designed and assented to by the people. Likewise, democracies are capable of a great deal of misery, but poor or even ruthless decisions on the part of democracies are not "fascist" so long as they are implemented by a government limited by well defined constraints on it's power and the will of the people. I think this distinction is important to make, because we have flirted with fascism on more than a few occasions in our country's history. The bedrock fascist position is best stated by Nixon, probably the closest we have come to a president with a truly fascist mindset: "When the president does it, that means that it is not illegal." Nixon probably hurt his policital adversaries more than anyone else - his crime ultimately didn't result in much more of substance than a broad-based loss of innocence - but this man's very mindset was a fascist mindset. He was, and I think he will be remembered as, a fascist who held an official position in a democratic Republic for a number of years in the late twentieth century. Was Bush a fascist in this mold? Was Cheney? Prosecuting torturers won't answer that question, and we may never know. We probably won't have the benefit of a Frost interview for those men, like we had with Nixon. But the tortures reek of something terrible, in the same way that Watergate did. And even if the torture could be explained away in various ways (just like Watergate could have itself been explained away as quite insignificant), the entire endeavor is indicative of "fascist tendencies" in the Bush White House - a tendency to place the president above the law, rather than under it. We need that tendency to be scrutinized in the light of day. And perhaps I have it all wrong and the torturers will be found not guilty, and this whole post was all a big mistake - but I think the preponderance of evidence for enough people suggests that we need to shore up the value and strength of the law in America. We're likely to have very trying times ahead - we don't want a charismatic president like Obama to enter trying times without a firm message from the American people that fascist tendencies are not acceptable, regardless of the objective desirability of the program that the fascist is offering.