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Judge Kozinski at Cato Unbound Responds to James Buchanan's Three Proposed Constitutional Amendments:

Dr. Buchanan's original proposals are here; Judge Kozinski's response is here; lawprof Akhil Amar's response to Dr. Buchanan is here. Here's Judge Kozinski's introduction

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. . . .

I think I'm largely with Judge Kozinski on this one.

Anderson (mail) (www):
Prof. Buchanan's proposals strike me as a libertarian's effort to achieve the Kingdom of Heaven on earth. They alarm me as much as any other fundamentalist's wish list.

All the more praise, then, to Judge Kozinski's polite and reasonable response.

Here's a thought: the modern free-market economy has come into being only over the past 200 years or so, arguably much less. It's partly been the cause of a radical disintegration of traditional social organizations. I don't mean that pejoratively, just factually. To the extent that we are, today, individuals rather than members of extended families, tribes, etc., it's partly because that's how the free market views us.

It's hardly surprising then that a new level of gov't involvement in society would be a reasonable response to the free market, tempering some of its effects.
12.9.2005 5:44pm
Ken Alfano (mail):
I think the Solomon debate proves Kosinski's point about the pure-nondiscrimination notion being unworkable. After all, somebody is going to get discriminated against -- by either Congress, or by the Supreme Court: either schools will be permitted to discriminate against one group, or the military will be permitted to discriminate against another.
12.9.2005 5:48pm
Walter Sobchack:
Another modest, measured move to cut down on the power and scope of the federal government would be to repeal the 17th Amendment along with the 16th.
12.9.2005 5:54pm
The Original TS (mail):
Speaking from a purely philosphical perspective, I generally agree with what really is Kozinski's main point, I will assume, therefore, that we are politically of a mind with Dr. Buchanan . . . 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.

Future generations ought to be free to structure engage in self-governance with the least possible interference from the dead hand of those who have gone before.

His argument breaks down, however, when it comes to fiscal responsibility.

A Constitutional amemndement require fiscal responsibility does not constrain future generations. On the contrary, it constrains the present generation for the benefit of future generations. Spending borrowed money like a drunken sailor often is to the great benefit of the current generation or administration but of no utility whatsoever to the folks who eventually have to pay the bill.

Judge Kozinski is quite correct that capital spending can often be fiscally prudent but this is really a technical quibble more than a philosophical objection. There are certainly ways to allow such spending within the framework of a constitutional amendment requiring the government not to bankrupt future generations.
12.9.2005 6:04pm
AppSocREs (mail):
When one compares the cumbrous, inelegant, and opaque language of Dr. Buchanan's three proposed amendments with the pellucid clarity of the Constitution's current articles, one tends to smell a rat. The "balanced budget" amendment is the clearest, but fails to acknowledge the complexity of the budget process or even the basic difference between budget authorizations and budget appropriations.
12.9.2005 6:14pm
anonymous22:
What's so disagreeable with Buchanan's proposals?
Buchanan is not arguing for utopian "pure" non-discrimination. As I read Buchanan, he is in fact advancing the pre-Civil Rights Movement/New Deal view of non-discrimination-- i.e. before the Supreme Court discovered positive rights. That is the government basically cannot help any discrete and insular minority-- the opposite of Carolene Products Fn. 4. This would ban affirmative action, farm subsidies, pork-barrel spending, etc. I also think this would throw into jeopardy Social Security and student loans. This view of non-discrimination, lest we forget, yielded an internally coherent SC jurisprudence in the years up to the Progressive Era. And it doesn't yield bad results at all from an lassiez-faire economic standpoint. Similarly, Buchanan's "natural liberty" proposal is simply a call for a return to the pre-1937 understanding of the commerce clause.

If you guys haven't noticed, David B. and Randy have been advocating basically these same ideas for years now. Buchanan's balanced-budget proposal I agree is difficult to defend, but lo and behold a balanced budget amendment came 1 vote short of Senate passage in 1996. Buchanan's views are not utopian (or really even that radical) in my view and I am surprised to see so many saying so at VC.

That being said, consent is a funny thing. The states and business have consented to having what P.J. O'Rourke used to aptly call a "Santa Claus" federal government that doles out the pork, gives out college loans, and makes sure everyone feels warm and fuzzy.
12.9.2005 6:47pm
Mikeyes (mail):
Speaking as a non-lawyer but a well read person (I like to think), the main objection to the three amendments is that if I have no idea what he is talking about when I read the language, what do you expect the average voter or state assemblyman to think? Just on the basis of incomprehensibiltiy they would never get to first base
12.9.2005 9:39pm
Tom Anger (mail) (www):
Judge Kozinski is right that we have it "good" in spite of the New Deal and its progeny. What he overlooks, however, is how much better we would have it if it weren't for the New Deal and its progeny. There is the "seen" (what we have) but there is the "unseen" (what we don't have because of the oppressive effects of taxation and regulation on social and economic freedom). Judge Kozinski focuses on the seen and forgets about the unseen. His "solution" is to repeal the income tax. But that is no solution at all unless government's power to do things (unconstitutional things, at that) is curbed. The feds might have to replace the income tax with a sales tax, but they'd do it in a heartbeat if that's what it would take to continue doing to us the things it's doing to us. Prof. Buchanan is on the right track, which is to strike at the heart of governmental power. The more practical route to that end, however, is to keep appointing Supreme Court justices whose instincts seem to make them likely allies of Justices Thomas and Scalia.
12.9.2005 10:23pm
BruceM (mail) (www):
Just pass a constitutional amendment overturning Wickard v. Filburn and its progeny (especially Raich) and dictating that the regulation of interstate commerce means what it says. I'll leave it to Randy Barnett to come up with a pithy way of phrasing it. That alone will solve all our problems.

If we really want to fix things, in addition we can legalize drugs, tax them, pardon all non-violent drug offenders, repeal the income tax, get rid of the DEA and the IRS, and end up with a budget surplus as well as the end of our police state.

It's quite simple, those two things are all that are necessary to make america a true utopia.
12.9.2005 11:18pm
left-wing lunatic:
Kozinski states that we enjoyed more freedom than any society that ever existed. But is this the case? I tend to think that economic freedoms are much more important (at least to me) than many of the freedoms (or rights) that many people would tout as demonstrating our liberty. And many economic freedoms are greatly restricted, so I don't think we are as free as Kozinski assumes.
12.10.2005 12:17am
TDPerkins (mail):
Anderson wrote:

"It's hardly surprising then that a new level of gov't involvement in society would be a reasonable response to the free market, tempering some of its effects."

The "free market" does not yet exist, and; it has no negative effects to be tempered, which are rightfully in government's power to temper--at least not insofar as the federal government is concerned.

Left-wing-lunatic wrote:

"Kozinski states that we enjoyed more freedom than any society that ever existed. But is this the case?"

No, the DWEM's founding the country certainly had much more freedom, and it is a tragedy that freedom isn't one we've been able to inherit, neither at this rate will we increase freedom to give to our children...not even the freedoms the Constitution plainly demands the jurisdicitons in this nation respect.

My own preference for practical amendments would be to repeal the 17th, pass a "fully informed jury" amendment*, and mandate a single bracket tax (single big per capita deduction).

*I think this would be popular and pass.

If I were not restricted to practical amendments, then I'd suggest a restriction of the commerce clause to it's orginal meaning, a genuinely flat tax on both income and property, non-discrimination a la Buchanan, a repeal of all term limits per se--and a substitution of a prohibition on consecutively served terms, an end further compulsory enrollment in Social Security, and a prohibition on any federal or state laws which prohibit citizens in good standing from owning and drilling with any and all items of military utility--with due process ameliorated restrictions on safe storage permitted for large-area-of-effect systems of inherently destructive nature only*, and an amendment terminating perpetuities some decent interval after they are adopted, and in addition a fully informed jury clause, but to amplify the "FIJ" clause to remove the power of judges to prohibit any strategy the defense would like to use, so that juries could be always be specifially invited to consider the constitutionality of a law.

*It amazes me that people focus on digressions like WMD's and arty, when the really scary thing the 2nd amendment pohibits government from "regulating" is secure comms.

Yours, TDP, ml, msl, &pfpp
12.10.2005 11:37am
go vols (mail):
"What he overlooks, however, is how much better we would have it if it weren't for the New Deal and its progeny."

Given that a failure to respond to the Great Depression might have led us to a fascist or communist regime, I'd say that statement is false. If you doubt me, read some Depression-era history. Senators were openly stating their doubt in the ability of the American system to carry on. To paraphrase a Socialist party leader, FDR carried out the socialist platform "on a stretcher." The libertarian argument that the American people would have accepted something dramatically different from the New Deal strikes me as naive at best.

Show me I'm wrong--what would have been the "libertarian solution" to the Great Depression that would have prevented political calamity?
12.10.2005 11:53am
TDPerkins (mail):
go vols wrote:

"Given that a failure to respond to the Great Depression might have led us to a fascist or communist regime"

I'd have rather risked the bloody revolution you imply than have what happened, happen. At least it would be over and done with by now.

Of course I assume the good guys would have won...

Yours, TDP, ml, msl, &pfpp
12.10.2005 12:38pm
Freder Frederson (mail):
"What he overlooks, however, is how much better we would have it if it weren't for the New Deal and its progeny."

Oh yeah, things would be wonderful if not for the New Deal and all those decisions and laws that misused the Commerce Law. The Southern States would still be operating under apartheid laws, the Great Lakes would still be dead, and our factories and mines would be workplaces of mass injury and death. Exactly how many Chinese miners have died this year in that practically unregulated utopia?
12.10.2005 2:36pm
anonymous22:
To defend the idea of the welfare state, I really think you need to do more than say, "Well, it helped group X!" Who really believes anymore that government truly acts in "the common interest"? What is the philosophical justification for having a government that does more than protect us from idiots and psychopaths and ensure that contracts are enforced? Any government action just utilizes force to take your money to benefit some discrete interest group.
12.10.2005 5:15pm
Freder Frederson:
Any government action just utilizes force to take your money to benefit some discrete interest group.

What unadulterated nonsense. Take, for instance, the area that I am most expert in and would be completely eliminated and uneforceable in your capitalist utopia--environmental and worker health and safety laws. What is the "discrete interest group" that benefits from such laws other than the general public? Since the dawn of the industrial era, actually since the population began to stress land use in England in the 16th century, there has been the cunundrum of the "tragedy of the commons". Without government intervention and an acknowledgement that private enforcement of property and contract rights will not always result in equitable results we will simply repeat the mistakes the past that led to demonstrable and severe environmental destruction and worker health that continues today in countries that choose to ignore such issues.
12.11.2005 12:01pm
anonymous22:
If your example of laws that don't benefit any discrete interest group are labor laws (workers) and environmental laws (Westerners are hurt by these laws), I rest my case.

Also, commons problems can only be overcome by...distributing property rights!
12.11.2005 7:34pm
ANM (mail):
"Exactly how many Chinese miners have died this year in that practically unregulated utopia?"
"Take, for instance, the area that ... would be completely eliminated and uneforceable in your capitalist utopia--environmental worker health and safety laws"
The Chinese, if they have not been forced into that job and were allowed to pursue other jobs, consent to the increased danger. Dangerous jobs command a wage premium over otherwise-comparable occupations, thereby compensating the worker for the increased risk. It is self evident that Alaskan fishermen prefer higher wages to higher safety. These environmental laws would likely lower the wages of affected workers, by lowering risk and raising the cost of business. All sorts of laws can distort this decision making, including worker's compensation, health insurance, and others.

Pollution should be, if it is not already, punishable under property rights (Though this means punishment on the individual, and not the collective, level). This protection would be conducted through the judiciary.
12.11.2005 9:06pm
Freder Frederson:
Also, commons problems can only be overcome by...distributing property rights!

This of course, again, is nonsense, because how do you distribute property rights over air, water bodies.

Pollution should be, if it is not already, punishable under property rights (Though this means punishment on the individual, and not the collective, level). This protection would be conducted through the judiciary.


Obviously, you never studied the tragedy of the commons. When you have a common area--like air or water in the modern sense--any individual contributor can not be blamed for destroying it. It is everybodies fault and nobodies at the same time. Each little contribution to the contribution is not enough to damage the "commons" but in aggregate the strain on the common area is unsustainable so you can't hold one person responsible the entire community, through the government, must regulate the use of the commons.
12.12.2005 8:02pm
Duncan Frissell (mail):
The libertarian solution to the Great Depression would have been to not pass the Federal Reserve Act in 1913 so we wouldn't have had one.

Eugene -- We've argued about this before. Kozinski's basic point that we're freer and richer than anyone has any right to expect so what's the problem? The problem is Pareto Optimality.

The Progressive/New Deal Era legal changes were very coercive and thus served to reduce the satisfaction of those coerced. The problem persists. Non-coercive arrangements are inherently superior because they avoid the disutility of coercion.

Likewise since wants are seemingly unlimited and money appears to buy happiness, a wealthier society would be superior. Without the dead weight loss of high public employment and dependency, productivity would be much higher and hence wealth, health, and happiness.
12.13.2005 12:48pm