The Skeptical Constitution

I’m terribly sorry. I seem to have come in late. I missed the part where the classical liberal gets to write the constitution. I know that a good many classical liberals, including my friend Richard, have offered their thoughts on the subject, but that’s not how I understand constitutions to be made.

Sir Lewis Namier thought that “no great historic problem has ever been settled by means of a brilliant idea.” Perhaps the Framers’ constitution is the exception here, but I rather prefer constitutions made over cases of champagne to the background music of a Strauss waltz and the rustle of silk skirts, the constitutions of practical people, non des philosophes et des savants. Such constitutions turn out better. And that’s the test, isn’t it? That’s why the serious constitutional theorist must be a comparativist, even if that requires one to brush away the cobwebs and delve into the musty and obscure corners of comparative law.

Richard wants to get it right from the beginning, and in this he reminds me of the pitcher who, after releasing the ball, contorts himself to shape its path. (For Canadians: insert curling metaphor.) We’d like to feel we have that power, but of course we don’t. After the ball has left our fingers, we’re just a bystander. That’s why reversibility matters more than getting it right the first time around.

It’s always easier to identify bad laws with the benefit of hindsight. Bad laws, based on bad ideas, with what are conceded to have bad consequences, are enacted everywhere. In dictatorships, bad laws are often bad from the start. In democratic regimes, however, bad ideas are typically recognized only after the fact. When one Parliament reverses a prior Parliament, it does so with more information than the prior enacting Parliament. It will know better what works and what doesn’t.

Reversibility is particularly important for what might be called “experience laws.” The economist’s “experience goods” are goods whose quality cannot be evaluated until after they are sold. Many a used car looks good on the lot, only to fall apart after three months. Similarly, legislation that looks good on paper sometimes results in unintended consequences that are more costly than the problem it was meant to remedy.

The 1965 Immigration Act is a useful example of experience laws, since no one at the time seemed able to foresee how it would work out. The bill’s chief sponsor, Senator Edward Kennedy, testified that it would not really change things very much at all. However, it effected a revolution in immigration flows that over time profoundly advantaged the Democrats. That might have helped his party, but Kennedy could never have expected that he would subsequently have to sponsor a visa lottery to admit Irishmen excluded by the 1965 Act.

Were the classical liberal to imagine himself a philosopher king, then, I’ll bet he’d rather repeal old laws more than enact new ones. The 1965 Immigration Act, Obamacare, Dodd-Frank, Sarbox, Davis Bacon, and so on. The problem is that it’s not so easy to do so in the system of separation of powers that Richard identifies with the classically liberalconstitution. What separationism has given us is a one-way ratchet in which bad ideas are adopted and then turned into the laws of the Medes and the Persians.

Mind you, it’s always harder to reverse course than to start afresh. It’s easier to launch a new program than to close an existing one; it’s easier to hire a public servant than to fire him. Every time a new program is begun, interest groups coalesce around it. Businesses and groups that profit from it will fight tooth and nail to prevent its repeal. There are special reasons, however, why reversibility is particularly difficult under the American constitution.

Getting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine. Absent a supermajority in Congress to override a Presidential veto, one needs the simultaneous concurrence of the president, Senate and House. Before its effective repeal this year, the possibility of deadlock was magnified by the Senate filibuster, which permitted 41 senators to limit debate. Obviously, the filibuster was strongly anti-democratic, and we should be happy it’s toast. Sadly, it was defended on the grounds that it enhanced the doctrine of separation of powers.

Historically, it’s been Richard’s nemesis, the progressives, who chaffed at separationism. They looked back fondly to the first hundred days of the Roosevelt Administration in 1933, when the executive drafted bills which Congress rubber-stamped without debate. That was how government should work, progressives thought. Today, however, after much of their agenda has been adopted, it’s the progressive who might prefer separationism’s ability to block the repeal of old laws, and the astute conservatives who might value reversibility.

But just how does one get reversibility, in Richard’s classical liberal constitution? He doesn’t tell us, so let me try to do so. The point is that there’s a right way and a wrong way. The wrong way is to let the president do so, under what I call his non-enforceability power. If he doesn’t like a law, he can simply decide to ignore it, as he did with the Immigration Act when Congress refused to pass the Dream Act. By executive fiat he created a new program called the Deferred Action for Childhood Arrivals, which allows an estimated 1.7 million young undocumented immigrants to live and work in the United States. Now, you might think this a good idea, but it ignores what I think the greatest danger to political freedom in the United States: the rise of strong presidential government. As an empirical matter, presidential rule is not good for liberty, and whilethis country has been an exception for more than 200 years there are worrying signs that things might change for the worse.

The right way to cure the reversibility problem, then, is to empower Congress—which is, after all, what the Framers (with their fear of a presidential “elective monarch”) sought to do. That would entail revisiting those court decisions that weaken Congress under the flawed reasoning that so doing vindicates the principle of separationism at the core of the Constitution. I.N.S. v. Chadha, 462 U.S. 919 (1983) comes to mind here, but for which Obamacare might perhaps now be history. Sometimes the Supreme Court, in its obtuseness, reminds one of a referee who yearns to award a 15-yard penalty to the team down 49-0 at the half.

There’s also federalism, where Richard and I are on the same page. If the point were to fetter presidential power, a good start would be to shrink the federal government’s power, relative to the states. Of course, federalism is not the same thing as devolutionism, and I agree with Richard that states should not be permitted to fetter interstate commerce (pace Richard, the Framers thought so too). Would he also, I wonder, agree with me that the problems of interstate exploitation should be addressed, and that to do so one might contemplate reversing that worst of all Supreme Court decisions, Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)?

The Erie decision reminds one that the constitution small is not the same thing as Richard’s constitution large. By constitution small, I mean not the formal principles of constitutional interpretation which Richard discusses, but instead the conventions of good government that promote liberty and the rule of law: a sensible set of private law rules and procedures and the freedom from corruption, forbearance from interference in the lives of others and modesty in rule-making.

There are 8 million stories in the Naked City. Here is just one of them. Despite Richard’s encomium to “the great success of the First Amendment,” I rather think speech is freer in countries with a less tortuous civil justice system. I’m thinking of Michael Mann’s libel suit against National Review and Mark Steyn, where the costly legal process is the punishment. When something like that happened in Canada, Parliament simply repealed the law. Parliaments can do that.

Richard would found his classically liberal constitution upon three abstract principles: anticircumvention rules, justifications, and remedial choices. To his trinity I oppose my own: reversibility, Congressional rule and good government. His principles and mine have nothing in common, but mine I think better serve liberty. Doubtless, it’s not fair to charge an author with writing the book he did, and not another book. All the same, a classical liberal is called upon to take account of America’s mediocre performance on international rankings of freedom. It seems to me, then, that Richard has some ‘splainin to do before celebrating what he calls “the great genius of the American Constitution,” even interpreted according to his lights.