A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
Archives for October 2017
As everyone knows, Richard Thaler has won the Nobel Prize in economics. Thaler’s prize was mainly for behavioral economics, which built upon the work of the earlier nobel laureate Daniel Kanneman.
This work has been controversial. Many rational choice economists have strongly criticized it and some of those people have been free market advocates. But free market advocates come in different stripes and certainly the Austrians would criticize the rational choice perspective as well. For an interesting exchange on these matters, take a look at this symposium on behavioral economics on the Truth on the Market Blog and the response from Richard Thaler himself.
While I find some of the work of the behavioral economists quite interesting, my main concern is with their failure to apply the same methods to government in general and to administrative agencies in particular. What could possibly justify this failure other than political bias?
The catchy phrase is as important in academic writing as it is in popular writing. In motivating their constitution-making stage in The Calculus of Consent, James Buchanan and Gordon Tullock assumed “that the individual is uncertain as to what his own precise role will be in any one of the whole chain of later collective choices that will actually have to be made.” A few years later John Rawls made the same assumption (albeit with different results), but phrased it more quotably as the “veil of ignorance.” Rawls’ terminology stuck. Buchanan and Tullock’s terminology remained just theirs.
The timing could not have been more propitious for Liberty Fund’s conference on cryptocurrency this past weekend. Last week Bitcoin hit an all-time high, even as it decreases in volatility. In their book, The Age of Cryptocurrency, Paul Vigna and Michael Casey offer five stages of the evolution of social attitudes toward Bitcoin. The first is disdain. The second is skepticism. The third is curiosity. The fourth is crystallization, where an understanding of the currency leads to a recognition that Bitcoin is a coherent design that fulfills an important function. And the final stage is comfort with and acceptance of the innovation.
Most people at the conference had passed through the first three stages and are resting at either stage four or five. The reason for this progression is that Bitcoin is earning more trust. It was always theoretically possible that Bitcoin could develop into a more trustworthy store of value than many government currencies, because many governments have proved themselves so untrustworthy. But only time would give people reason to trust an algorithm that was far too complicated for most fully to understand. And Bitcoin itself has worked now for more than eight years, generating more trust.
But even as of 2017 many people had legitimate worries. The greatest was fear of a so-called hard fork—a disagreement about changing the algorithm that results in two versions of the currency going forward.
Populism—the politics of resentment—is generally regarded as a right-wing phenomenon.
Three U.S. states originally had unicameral legislatures, Pennsylvania, Georgia, and Vermont. Unicameralism didn’t last long in those states. Georgia adopted a second chamber in 1789. Pennsylvania in 1790. Vermont held out a bit longer, adding a second chamber to its legislature in 1836. All states subsequently joining the Union, including Nebraska, came into it with bicameral legislatures.
Interest in unicameralism returned, however, with the advent of the Progressive movement but in new ways.
There is a long established convention of referring to the Supreme Court in a given era by the name of its Chief Justice. Thus, we have the Marshall Court, the Warren Court, and the Rehnquist Court. But this name is often a misnomer because the Chief was not the most influential member of his Court. Like all other justices, he always has but one vote. Particularly in the modern era, where political scientists can evaluate judges based on ideological scores, the better name for a Court might that of the swing or median Justice. Under this view, we are living currently in the era of the Kennedy Court.
But probably not for much longer. Justice Anthony Kennedy has announced to prospective clerks that he thinking of retiring. Moreover, as I have previously discussed, with rise of partisanship, justices now have every incentive to retire when both the Presidency and the Senate is under the control of the party whose President appointed them. Otherwise the Court may be left short-handed for an indefinite period and they may be replaced by justices of the opposite party when that alignment finally occurs. Kennedy cannot be confident that the Republicans will control the Senate after 2018.
Assuming that, as is likely, Kennedy is replaced by a justice with views like Neil Gorsuch, the Roberts Court will actually become the Roberts Court in more than name, because the Chief Justice will also become the median justice.
Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, “The Original Fourth Amendment.” The article is a long one, nearly 150 pages long in a law journal, and it covers the development of search and seizure law through English, Colonial and American history. One of the messages that comes across is the familiar one that the Americans were Whigs, who took one strand of English thought that was protective of liberty, and wrote it into the Constitution.
Constitutions are naturally conserving documents. Their purpose is to say what a society cannot change, or at least cannot change readily. In constitutive moments, polities lash themselves like Odysseus to the mast, not the pilot’s seat.
This is lost on those political commentators, ascendant during the NFL’s anthem controversy, who seek to press the language of the Constitution’s Preamble into the service of Progressivism. We are talking about Progressivism with a capital “P”— the strain that believes in unrelenting progress as the inherent good of man and the inevitable trajectory of events. The phrase in question is an old rhetorical favorite: the Preamble’s quest for “a more perfect union.”