Liberty Law Blog

The Constitution of Affluence, Part I

Michael S. Greve / , , / 0 Comments

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We live under a Constitution of Affluence. Obviously, I don’t mean a constitution that produces affluence. (Prosperity may be right around the corner, but it’s the corner behind us.) I mean a Constitution whose basic institutions presuppose and depend on high levels of affluence and, equally important, public expectations that life will get better and richer.

The United States Constitution—the formal Constitution and its nineteenth-century arrangements—is (or was) not a Constitution of Affluence in the sense just explained. It sought to create conditions that would be conducive to rising prosperity—principally, by way of ensuring political stability, meaning institutional arrangements that would let citizens go about their business without constant fear that somebody, someplace might confiscate the proceeds. But it was supposed to work, and it did work, even in times of prolonged economic stress—in one of those “varying crises of human affairs,” as John Marshall might have said and in fact did say.

The first big step toward a Constitution of Affluence was the New Deal. In ways and for reasons discussed below, the New Deal Constitution’s characteristic arrangements—administrative agencies, “cooperative” federalism, industry cartels, modest social programs, extreme judicial deference to “economic” legislation—all depend on an expectation of sustained economic growth. However, the New Deal Constitution still reflected a recognition that rising affluence required private production. Thus, the New Deal Constitution still embodied limits—not so much formal, judicially enforced limits, but institutionally enforced limits: not everything can be up for grabs.

Our Constitution of Affluence recognizes no such limits. Its central premise is that everything must be up for grabs, and it has built institutions to ensure unceasing progress to that end. Its tragedy is that it will eventually undermine the affluence on which it rests. Our affluence has ended, and so will our present constitutional arrangements. The only question is how. Continue Reading →

James Bruce’s Critique of My Consequentialist Libertarianism: Part I

Mike Rappaport / , , , / 2 Comments

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Last week, James Bruce wrote a critique of several of my posts that argue for a consequentialist approach to Bleeding Heart Libertarianism.  In my view, welfare consequentialism – a more refined version of utilitarianism – provides the best case for the moderate libertarianism I embrace and justifies a special focus on the interests of the poor (based on the diminishing marginal utility of money).  In this and a second post, I will respond to Bruce’s main criticisms.

1.  Consequentialism and the Argument against Statism:  Bruce argues that a consequentialist justification for my libertarian/antistatist position does not work because it does not provide an argument against statism.  Bruce claims that consequentialism will only argue against statism if small government leads to good results for the people.  If not, it will not argue against statism.

Although this argument is often made, I don’t find it persuasive.  Yes, if freedom led to bad consequences for the people, consequentialism would not justify it.  But so what?  The main argument for freedom and libertarianism under a consequentialist approach is that freedom leads to good consequences.  Liberty produces wealth, knowledge, peace, and allows people to live their lives as they choose.  Statism largely does the opposite.  That is why I value liberty.

And that is why you should as well.  If freedom led to bad consequences – if the world were as Marxists often portrayed it, with capitalism leading to immiseration and communism leading to wealth, harmony, and personal realization – then following capitalism would be morally abhorrent.  The reason Marxists are wrong is not that liberty always overrides welfare, but that liberty leads to wealth and choice, and Marxism leads to tyranny and poverty.

2. Consequentialism and Freedom: Bruce next attempts to place consequentialists on the horns of a dilemma.  He says that freedom either always produces welfare or sometimes it does not.  If one argues it always produces welfare, then one is no longer making a consequentialist argument.  But if it does not always produce welfare, then the consequentialist must recognize that there is always a possibility that limitations on liberty would be beneficial, which would leave us in a problematic world for liberty.

But this dilemma is a false one, since there is an attractive, intermediate position: One can believe that the way the world is constituted results in freedom oriented institutions, to a dominant extent, leading to the best results.  Thus, one would expect that freedom would lead to good consequences and that statism would be rejected.

It is true that there may be limited cases where restraints on liberty might make sense, such as welfare or other benefits for the poor.  But that does not lead us all the way to statism.  Instead, it leads us to a view easily recognized as within the family of classical liberalism or moderate libertarianism.

3.  Consequentialism and Moral Rules: Bruce seems to believe that consequentialists must be open to all kinds of exceptions to moral and constitutional rules.  Following J.J.C. Smart, he argues that “a consistent utilitarian must always be open to any rule being broken by the specific utilitarian concerns of the moment.  If that’s the case, then even if—somehow—a bleeding heart libertarian can create a rule that justifies human freedom for human welfare, the rule—e.g., the First Amendment—must always be open to the general rule being broken in specific circumstances.”

While many philosophers agree with Bruce here, I think he is mistaken on the level of moral rules and on the level of constitutional provisions.  First, consider moral rules.  While Bruce invokes Smart’s consequentialism, that is not the sort I am defending.  As I have indicated before, I adopt the two level theory of R. M. Hare, which argues that ordinary people – because of bias, imperfect knowledge, coordination requirements, and other matters — do better by following rules that are learnable, can be followed, promote good consequences in general, but not on a case by case basis.  Hare adds that the need to to psychologically internalize these moral rules means that people should not be taught to break them even in situations where they might appear to produce desirable results.  Thus, the rules are much more categorical than Smart suggests.  We shouldn’t be “always open to any rule being broken by the specific utilitarian concerns of the moment.”

Smart Swap

Michael S. Greve / , , / 0 Comments

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Revising a Reagan era proposal, Senator Lamar Alexander (R-Tenn.) has proposed a grand swap: give all of Medicaid (including full funding responsibilities) to the feds; in exchange, wipe out all federal education funding. As described in The Upside-Down Constitution, a very similar swap proposal was founded in the Reagan era on the resolute opposition of the states and intergovernmental lobbies. Here’s to hoping that Senator Alexander’s proposal will receive a more favorable and constructive reaction this time around.

The Coming Constitutional Collapse

Michael S. Greve / , , / 2 Comments

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Very soon, quite probably within a decade, we will confront a constitutional collapse. Unless we revamp the constitutional order in major respects, it will simply seize up or keel over (pick your metaphor)—in what way and with what consequences, no one can say.

By “Constitution”, I do not mean the formal, written Constitution, which will survive for the foreseeable future. Rather, I mean what scholars sometimes call the “small-c constitution.” It encompasses, in addition to the formal arrangements, institutional patterns and practices that are (1) longstanding; (2) central to the political system’s operation; and (3) too entrenched to be broken by ordinary political means (elections and legislation), in ordinary times. It’s in this sense that we speak of an “antebellum Constitution” or a “New Deal Constitution.” And it’s in this sense that Social Security, the administrative state, and the Civil Rights Act are part of our Constitution or, if you prefer, our constitutional system. No one seriously proposes to abolish these arrangements; and even if you wanted to, you couldn’t.

There is no good, widely accepted term for our current Constitution. Much of it, we owe to the Great Society; but a “Great Society Constitution” has never had currency and certainly wouldn’t stick now. The term I have chosen for present purposes is “The Constitution of Affluence.” The basic intuition was brilliantly articulated by Chris DeMuth over a decade ago: a long stretch of rising prosperity creates both an expectation that the trend will continue and a distinctive pattern of politics. Over time, the arrangements will harden and become part of the institutional landscape.

In this light, the logic of the dramatic “constitutional collapse” prediction emerges. Rising social affluence produces demand for policy as a luxury good, just as private affluence produces demand for BMWs. The glitch is that on a downswing, institutional behavior is far stickier than household behavior (in real life, let alone on the economists’ blackboards): lower expectations with respect to future income fail to produce a downward shift towards the Chevy-equivalent policy set. The tangible result of this dynamic is an ever-growing and now nearly unmanageable level of public debt, on and off the books (as with pensions).

Our deepest problem isn’t that we can no longer afford our extravagant transfer state, or even that we cannot possibly pay back the accumulated debt in real dollars: that much, everyone knows. The real problem is that encrusted institutional structures, built up willy-nilly in times of prosperity, block any meaningful, durable reform.

Way back in 1787, statesmen recognized that the country’s catastrophic debt could not possibly be managed by decrepit institutions that had caused the predicament in the first place. The United States needed a workable Constitution, an effective tax system, and a Bank. 225 years later, we again need something similar—not a new formal Constitution, for sure, but an institutional program on a Hamiltonian scale.

I haven’t the foggiest notion of what such a program might look like. What I do know is that our politicians and pundits are whistling past the graveyard. As for “scholarship,” It’s Even Worse Than It Looks, to quote the latest of many screeds that deliver purported institutional analysis at the level of talk show chatter. Consider these posts a modest attempt to start a more serious conversation.

The Creation of the Presidency

Richard Reinsch / , , , / 0 Comments

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Jeremy Bailey, author of Thomas Jefferson and Executive Power, reviews for Law and Liberty Charles Thach’s The Creation of the Presidency, 1775-1789: A Study in Constitutional History. Thach’s work is widely hailed as a classic study of the creation of executive power by the American Constitution. Bailey notes the central movement of the book as follows:

For Thach, the key move was not making an executive branch but rather making that branch independent of Congress.  This may seem like old news, but Thach reminds us of at least one important implication: “There is no need to cross the Atlantic to find an important model of the American presidency,” because the British model tended to ministerial government which undermined executive control over administration.  In place of this ministerial model, one state provided the example of how to achieve executive independence: the New York constitution  “afforded the only American example of a government by a constitution actually controlling the departments of government and at the same time a completely independent and very energetic and active chief magistrate” (159).  In Thach’s view, then, the founders of the presidency were not the British writers on executive power but rather those who were able to locate the path toward executive independence.  Accordingly, credit for authorship of the presidency “belongs to the little group of men who determined the construction of the New York constitution, Jay and Gouverneur Morris,” and also “to James Wilson belongs the crystallizing the concept and laying it before the Convention” (160).

Slouching into the Past: A Marxist Read on the Riley Kerfuffle

James Bruce / , , , , , , / 1 Comment

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In response to “Black Studies: ‘Swaggering into the Future,’” Naomi Schaefer Riley penned “The Most Persuasive Case for Eliminating Black Studies? Just Read the Dissertations.” To put it mildly, her piece generated no small amount of controversy, ending (or beginning) with her dismissal from The Chronicle of Higher Education’s blog Brainstorm. Both in print and online Ms. Riley tells her side of the story in the Wall Street Journal. She ends her remarks with the following:

My longtime familiarity with the absurdities of higher education did not, I confess, prepare me for this most absurd of results. The content of my post, after all, is hardly shocking; the same thing could have been written 30 years ago. And perhaps that’s the most depressing part of all this. Despite the real social and economic advancement that has been made by blacks in this country, the American faculty is still stuck in the 1960s.

Consider the following modest proposal: a Marxist read on the Riley kerfuffle. It’s a return to the 1960s, but it’s not about race. It’s about economics.

Here’s the argument: Criticizing a single tenured academic does not threaten that academic’s income nor the income of his colleagues. If someone is criticized, then that could be fantastic for the discipline, and for that academic, too (file the criticism under to power, speaking truth). However, if the entire discipline is criticized, then, from an economic point of view, professors have a problem, for at least two reasons. Continue Reading →

Atlas Croaks, Supreme Court Shrugs

Michael S. Greve / , / 0 Comments

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Huzzah:  my seminal law review article by the above-captioned title (6 Charleston L Rev 15 (2011)) has made the

LSN: Judges (Courts) (Topic) Top Ten.

The piece deals with the Supreme Court’s “business cases” and the idea, peddled with dreary predictability at the conclusion of each Term, that we are well on our way toward a judicially engineered plutocracy. Here’s the gist of it:

Upon inspection, the notion that the Roberts Court’s jurisprudence heralds a restoration of unbridled capitalism — or, more modestly, of reliable rules of the road for commercial actors — proves untenable, if not downright absurd. It is true that the Supreme Court often rules for business. And this past Term, unlike in preceding years, those rulings have often been the work of a narrow 5-4 or 5-3 conservative majority. … However, the pattern is hardly unbroken. Moreover, and far more important, the conservative Justices’ pro-business decisions look like picking weeds in downtown Detroit or for that matter Mrs. Rand’s crumbling New York — well-meant, but unlikely to improve the neighborhood on a lasting basis.

By sheer serendipity, just ahead of me ranks a piece by Ross E. Davies (GMU School of Law and, come August, my faculty colleague), entitled “In Search of Helpful Legal Scholarship.” Atlas Croaks may or may not belong in that category, but it does contain a few fun facts and observations. A couple of random downloads would improve its ranking, though obviously not its content.

Freedom and the Political Good: Some Preliminary Considerations

James Kalb / , , , , , / 1 Comment

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Recent disputes over the Patient Protection and Affordable Care Act go to the most basic of political issues, the proper goal of government.

The nature of the political good may seem a question for the seminar room, but the answer is what distinguishes libertarians, liberals, and conservatives. More specifically, it’s what accounts for the disputes over Obamacare.

According to libertarians, the basic political good is freedom, understood as a setting in which people make their choices and pay for them. What’s available for choice is what people can provide for themselves, together with whatever other people decide to make available. Such a view leads libertarians to oppose government-prescribed health care of any kind.

Liberals agree that the basic political good is freedom, but see it as a setting in which people make choices and receive social support for them. They note that a lack of options can limit freedom, and propose that goods everyone wants, or that facilitate choice in general, be made freely available. Thus, for example, they believe that government should provide for universal health care, since everyone wants to be healthy, and good health facilitates active autonomy. They also believe that personal choice should prevail over collective moral preferences, so Catholic employers should be required to make free birth control pills available to employees who want them.

Conservatives in contrast view the political good as maintenance of an overall way of life that has been found good through experience and reason. That way of life will generally include freedom, but it won’t put it first because freedom by itself doesn’t tell us what it’s for, and if we don’t know what it’s for we can’t resolve conflicts among claimed freedoms. So to make sense, freedom has to be part of a larger system of goods that gives it direction, setting, and meaning. Continue Reading →

Is Precedent Consistent with Originalism? A Response to Some Comments

Mike Rappaport / , , / 4 Comments

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My post on The Greater Originalist, which argued that following precedent was consistent with originalism, prompted some comments by Andrew Hyman and Tim Sandefur.  Here I will briefly articulate my theory of constitutional precedent (developed with John McGinnis) and then respond to their questions.

My view of precedent is as follows.  First, I argue that the Constitution itself allows for precedent.  In particular, the original meaning of the Constitution contemplates common law precedent rules that are binding on judges.  But the Constitution also allows Congress to enact precedent rules that would displace the common law rules.

Second, I argue on policy grounds that the best precedent doctrine would be an intermediate one that follows the original meaning except in limited circumstances when the benefits of precedent outweighs the benefits of following the original meaning.  This doctrine, however, should employ rules to identify the situations when precedent should be followed, and should not allow judges to employ a balancing test to determine whether to employ precedent.

One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require.  In that situation, the precedent would have many of the characteristics of a constitutional provision.  Of course, a constitutional amendment would be superior, because it would have been actually enacted.  But overturning precedents that have such strong support also has serious costs. Continue Reading →

The Weekend Roundup

Richard Reinsch / , , , , , , , , / 0 Comments

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  • If a criminal defendant is informed by his defense counsel to reject a plea-bargain and go to trial under the advice that the facts giving rise to the charges wouldn’t support the length of the prison term offered in the plea deal, and the defendant accepts the advice, goes to trial, and is convicted of a much lengthier prison term than that offered under the plea deal, did he receive ineffective assistance of counsel? Yes, according to Justice Kennedy writing for the majority in the recent case Lafler v. Cooper. Hadley Arkes at Right Reason, notes in two separate posts, the growing Hobbesian impulse in Supreme Court decisions regarding criminal defendants’ claims for “effective” assistance of counsel. Justice Scalia, Arkes notes, was not persuaded by Justice Kennedy’s reasoning that “[T]he question is not the fairness or reliability of the trial but the fairness and regularity of the processes that preceded it, which caused the defendant to lose benefits he would have received in the ordinary course but for counsel’s ineffective assistance of counsel.” A fair trial, it would seem, is no longer the thing itself in due process claims for effective counsel.
  • Eugene Volokh on the Iranian cartoonist sentenced to 25 lashes for lampooning a member of the Iranian parliament.
  • Point of Law notes that Rob Cordray, Director of the CFPB, is building a case that his agency should regulate bank overdraft fees, which Cordray maintains are manifestly unfair.
  • Marc Hodak on the new “Say on Pay” policy and shareholder wealth.
  • John Murray writes in the WSJ on the Vanderbilt religious all-comers policy: “Ironically, the very freedom Vanderbilt administrators have to make their unfortunate decision derives from a 19th-century Supreme Court case that led to the proliferation of Christian colleges such as Vanderbilt, founded under the auspices of the Methodist Episcopal Church in 1873.”
  • Eric Kaufmann writes at The American on the interesting demographic future facing the West.
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