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Did the Public "Accept" Unlimited Federal Commerce Clause Authority?

In a recent post and comments, co-blogger David Bernstein and Judge Michael McConnell debate the question of whether a majority of the public has "accepted" the nearly unlimited federal power to engage in "economic" regulation reflected in cases such as Wickard v. Filburn and, most recently, Gonzales v. Raich, and whether they would have been willing to support a constitutional amendment giving Congress virtually unlimitede regulatory authority. It so happens that I presented some data on this question in a 2003 article in the William & Mary Law Review. The data strongly suggests that, during the New Deal era when the transition to the modern view of the Commerce Clause took place, the majority of the public opposed unlimited congressional power of this type. Here's an excerpt (citations available in the article itself):

In 1936-37, Gallup conducted three surveys asking respondents whether they supported a constitutional amendment to give Congress expanded power to regulate industry and agriculture,the fundamental question at issue in New Deal constitutional change. In a January 1936 survey, Gallup asked: "Would you favor or oppose an amendment to the Constitution transferring to the Federal Government the power to regulate agriculture and industry?" Forty-three percent of respondents answered "yes," while a strong majority of 57 percent said "no." In a similarquestion asked in December 1936, Gallup surveyed respondents as to the issue of : "Would you favor an amendment to the Constitution giving Congress the power to regulate agriculture,commerce, industry, and labor?" Once again, a majority (51%) said "no," while 42% answered yes and seven percent expressed no opinion....

In March 1937, Gallup asked if respondents would "favor an amendment to the Constitution giving congress greater power to regulate industry and agriculture." This question differs from the previous two in that it posits a potentially much more modest increase in federal regulatory power. Instead of asking about giving Congress "the power to regulate" industry and agriculture, which implies complete power over these subjects, it merely suggests granting Congress regulatory power "greater" than that which it currently possesses. Not surprisingly, this more modest grant of power was supported by a much higher percentage of respondents than the broader one. Fifty-eight percent of respondents in the March 1937 survey said that they favored the proposed amendment, while 42 percent said that they were opposed. Nonetheless, as Barry Cushman points out, it is significant that 42 percent may have opposed any broad increase in federal regulatory authority at all. This suggests that much of the opposition to increased federal power expressed in the two 1936 surveys was quite deeply rooted.

(pp. 625-26 of the published version of the article).

I should emphasize that there is no doubt that the majority of the public in the 1930s favored increasing federal regulatory authority beyond pre-New Deal levels. But that, of course, is not the same thing as favoring virtually unlimited federal power over "economic" affairs.

What about public opinion since the 1930s? We cannot know for sure, since to my knowledge there is no recent polling data directly on point. Nonetheless, since at least the 1960s, majorities have consistently said that the federal government has too much power. Most recently, in polls conducted during this fall's elections, 54% said that government is "doing too much" that should be left to individuals and businesses, while only 37% said that government is doing too little. Such views are not logically incompatible with a belief that the Constitution should be interpreted to give Congress virtually unlimited power to regulate "economic" activity. For example, voters might believe that Congress has this power, even though it shouldn't, or might want government to do more in the economic field, but less overall. The second conjecture is partly contradicted by the survey cited above, which found that 51% said that government should do "more" to promote "traditional values," which implies (in conjunction with the overall result that a majority believes that government is doing too much) that the government activism on economic issues is more unpopular than on "social" ones. As for the first, I doubt that most of the general public rigorously distinguishes between constitutional considerations and policy ones. At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation."

It goes without saying that decisions like Wickard and Raich might be correct even if the majority of the public does not "accept" them. The apparent absence of public support, only undermines those justifications for the decisions that rely on the idea that unlimited federal regulatory authority is supported by a broad public consensus.

UPDATE: Some commenters ask why it should matter whether a majority of the public supports an unlimited congressional commerce power or not. As I said in the original post, I myself do not believe that the popularity of a particular interpretation of the Constitution has much bearing on its correctness. However, many scholars and jurists disagree. Many (including apparently Judge McConnell) contend that courts should hesitate to reverse even a flawed constitutional decision if that decision has, over time, come to command widespread public support. Other scholars, such as Bruce Ackerman, argue that broad popular support for revision of the Constitution during a "constitutional moment" (which, he believes, the New Deal was), justifies a change in constitutional interpretation even if there has not been a formal constitutional amendment. The lack of strong popular support for decisions such as Wickard and Raich is important from the standpoint of several widely accepted theories of constitutional interpretation, even though it may not matter much from a pure textualist or originalist point of view.

Related Posts (on one page):

  1. Did the Public "Accept" Unlimited Federal Commerce Clause Authority?
  2. McConnell (and Me) vs. Breyer:
  3. McConnell vs. Breyer:
juris_imprudent (mail):
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

How does that translate into regulating intra-state commercial activity, let alone non-commercial acts (whether inter or intra state)?

This reminds me of the people who try to read any individual right to guns out of the 2nd Amdt. If you don't like what the Constitution has to say on the matter, then by all means amend it. My hunch is that most realize that it is far easier to find a coterie of compliant jurists then it is to convince enough citizens/legislators to support any given change.
12.22.2006 7:19pm
Speaking The Obvious:
Of course, even the 1937 poll, which favored more government regulation 58% to 42%, is not obviously sufficient to pass a Constitutional amendment, requiring supermajorities in both the Senate, House, and state legislatures. (Granted, those inhabiting such positions may well be more predisposed than the average American to have government engage in more economic regulation of the economy...)
12.22.2006 7:33pm
frankcross (mail):
I don't see how the data support your inference.
I definitely agree that the public does not distinguish between policy issues and constitutional ones. Which means they think the government has the constitutional power to adopt whatever policies they like. Maybe not for those they dislike.
12.22.2006 7:37pm
Just Dropping By (mail):
Unfortunately, I suspect that this opposition is very similar to the opposition to increased government spending - it gets majority support in the abstract but then fails in almost every specific instance. For example, if the question were to be phrased "Should Congress be able to enact laws to protect children from gun violence," (i.e., the Lopez case) probably a majority of respondents would say yes.
12.22.2006 7:50pm
David Berke:
I'm going to have to agree with Frank Cross and JDB;

I don't believe that this evidence is terribly meaningful or supportive of any particular position. That people believe "the government is doing too much which should be left to individuals or businesses" could refer to many areas other than economic regulation, and almost certainly reflects a belief that in some aspects (say, large farm subsidies) the government is doing too much and should leave it to the market, and in others (fill in the blank with any number of allegedly labor protecting ideas, or environmental issues) is not doing nearly enough.

Everyone can come up with examples of the government doing things that they don't believe the government is involved in. Additional bias may come from that question being presented first, as well.
12.22.2006 8:07pm
Mark Field (mail):
This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause. If Congress lacks the power to regulate, that means each of 50 states has independent power to do so. That seems to me to multiply by 50 the chances of interference with the market. In fact, of course, state interference with commerce under the Confederation is precisely why the Commerce Clause is in the Constitution. So, putting aside whatever Constitutional arguments you have, for what policy reasons do you prefer state regulation?
12.22.2006 8:28pm
juris_imprudent (mail):

"Should Congress be able to enact laws to protect children from gun violence," (i.e., the Lopez case) probably a majority of respondents would say yes.

LOL, and then you can ask them if they've stopped beating their wives and if they would like to see a cure for cancer. You can't frame a serious question like that and expect anything but the answer you've built in.

Try posing the question as "Is it the responsibility of:
A) your local school district, B) your state legislature, or C) Congress to assure the safety of your children while they are in school"? I seriously doubt you would get a majority saying "C".

If you ask people stupid questions you are bound to get stupid answers. That doesn't mean the people themselves are nearly as stupid as the person asking the question.
12.22.2006 8:32pm
Cornellian (mail):
At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation."

If by "accepted by the nation" he means "accepted by Congress and the White House" then that is undoubtedly correct. There is absolutely zero interest in Congress or the White House in limiting the power of the federal government, even among self-styled conservatives. Regardless of what the public in general might think of the issue (and I doubt they think much about it, if at all) they don't feel strongly enough about it to vote on that basis, which means there is zero incentive for any federal politician to change his or her view. If a self-described conservative, pro-limited government, pro-federalism, constitutional originalist can vote for the Terry Schiavo law (to cite just one example of many), then let's just say I'm not holding my breath waiting for a change in the federal / state balance of power.
12.22.2006 8:41pm
juris_imprudent (mail):

This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause.

It depends on what that power is being used to do. I don't believe I've ever heard anyone, libertarian or otherwise, who opposes the entire commerce clause - just the abuse of it (i.e. exercising police power under the guise of regulating commerce).

As for the rules being different, so what. A business can choose to enter a particular market or not. By nationalizing the rules everyone has to abide by the one-size-fits-all approach. Alabamans probably don't want to live by California or Massachusetts rules, nor vice versa. Not to mention the benefit of being able to trial different policies for results/consequences.
12.22.2006 8:43pm
Mark Field (mail):

As for the rules being different, so what. A business can choose to enter a particular market or not.


Perhaps I'm not clear on what people have in mind, but I can't imagine any large business agreeing with this. Imagine if state required different gauges for railroad track. As I see it, one of two things would happen: there wouldn't be any trains; or the less populous states would be forced to accept the gauges of the more populous states in order to get trains.

How does libertarian economics benefit by increasing the number of potentially meddling governments?
12.22.2006 9:16pm
BruceM (mail) (www):
I don't see why it matters one bit if a majority of Americans "support" unlimited commerce clause power. Phrase the question right and you can get a majority of people to admit they like being sodomized up the anus with a prickly pear. But accuracy aside, who cares? In Federalist No. 10 Madison eloquently warned of the tyrrany of majority factions. If > 50% of the population wants to go to war or doesn't want to go to war that's somewhat relevant. But if > 50% of the population accepts a nuanced constitutional doctrine, I would say that's completely irrelevant to whether or not that doctrine is properly decided. In fact, considering the fact that the average person is a moron--which by definition means 50% of people are even dumber than that--I would propose that majority support or "acceptance" or a proposition sets for a prima facie presumption that said proposition is WRONG. If a majority of people support Wickard, Raich, etc., then QED.
12.22.2006 9:27pm
CJColucci:
Questions of power and expediency or wisdom are very different. It is emtirely possible to believe that the government has all sorts of powers it would be unwise to use. I do not doubt Congress's raw, constitutional power to enact agricultural subsidies or to tax my income at the 95 per cent level. I favor neither. Asking people whether they think the government is doing too much tells you exactly nothing about what they think the government CAN do. Asking whether they favor giving the government "more" power doesn't tell you much either unless you know what powers people think the government already has. If my admittedly unsystematic impression is correct, it would be remarkable if people favored giving "more" power to a government that has as much power as they (wrongly) think it already does.
12.22.2006 9:31pm
juris_imprudent (mail):

Perhaps I'm not clear on what people have in mind, but I can't imagine any large business agreeing with this.

Who said the role of govt was to make life easier for big business? (Well, other than the Republicans and Democrats that is). As for the railroad gauge example, that was "solved" long before the ICC came into existance.

By the by, you have heard of the Uniform Commercial Code? That was achieved without Congress wielding it's mighty commerce clause power.

How does libertarian economics benefit by increasing the number of potentially meddling governments?

Interesting presumption (from a non-libertarian) that all govt is [potentially] meddling. ;-) You could argue that the citizen-consumers in the meddling-prone states would suffer and it is the beneficent federal govt saving them from such. Then again, don't people get the govt they deserve (and should pay for)?
12.22.2006 9:32pm
Ilya Somin:
I don't see how the data support your inference.
I definitely agree that the public does not distinguish between policy issues and constitutional ones. Which means they think the government has the constitutional power to adopt whatever policies they like. Maybe not for those they dislike.


Well, if the majority (both in 1930s and, apparently, since then) oppose giving Congress unlimited Commerce Clause authority, that suggests that they think it would be used to enact policies they don't like. That is in no way inconsistent with the inference I have tried to draw.
12.22.2006 9:49pm
Ilya Somin:
This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause. If Congress lacks the power to regulate, that means each of 50 states has independent power to do so. That seems to me to multiply by 50 the chances of interference with the market.

State regulation can indeed cause harm, from a libertarian point of view. Most libertarians, myself included, favor constitutional constraints on state regulatory authority as well as federal. But it's not as dangerous as federal regulation because people and businesses can "vote with their feet" against state regulation. Interstate competition therefore sets limits on harmful state regulatoin. The exit option against federal regulation (emigrating from the US) is much more difficult to act on.

Finally, post-New Deal Commerce Clause doctrine doesn't prevent states from regulating as much as they want, except in those cases where their regualtions are "preempted" by those of Congress. So supporting Wickard or Raich does little to prevent state regulation.
12.22.2006 9:53pm
Ilya Somin:
If by "accepted by the nation" he means "accepted by Congress and the White House" then that is undoubtedly correct. There is absolutely zero interest in Congress or the White House in limiting the power of the federal government, even among self-styled conservatives.

This may have been true of the last five years, but it is certainly has not been universally true in recent years. The Reagan Administation made a major (and partly successful) effort to limit federal power and increase the role of the states, and that was also one of the objectives of the Republican Congress in 1995-2000. And of course Reagan (and to a lesser degree George Bush I) sought to appoint pro-federalism judges, again with some success.

The attitudes of the the George W. Bush Administration and its congressional allies should not be mistaken for a consensus of political elite.
12.22.2006 9:57pm
K Parker (mail):
Mark Field,

Fortunately for the economy, business of all sizes has a better imagination than you do.

For quite a few years Detriot produced "California" variants of its passenger cars to comply with CA's more stringent pollution regulations.

And in actual practive, businesses both large and small somehow flourish while working across different states: with and without a retail sales tax, with and without a state income tax, and even manage to have Washington state branches that comply with our wacky Business and Occupation tax. Heck, one of my customers even manages to run a building-products store in north central Washington and a sister store across the border on BC. Who knew this was possible?
12.23.2006 12:06am
Elliot Reed:
I'd think these data don't tell us much about how much power people think Congress should have. The polls cited only tell us about what people thought about a Constitutional amendment, which is a device you'd only resort to if you didn't already have the power to do whatever it is you wanted to do and couldn't get the courts to sign on to it. If people thought that the Constitution already gave Congress very broad powers to regulate the economy (or should be interpreted to grant it such powers), they might easily have supported an expansive reading of the Commerce Clause while opposing an amendment that would presumably grant Congress even broader powers.

More likely, of course, is that people didn't have any particularly coherent opinions on this issue at all. I suspect they'd have favored Congress having the power to pass regulations they favored but not the power to pass any regulations they opposed. That's no less inconsistent than people today, who invariably support cutting spending in the abstract but oppose cutting any particular program when it's proposed.
12.23.2006 12:17am
Bill Harshaw (mail) (www):
How does one weigh a Gallup poll against elections--the "first New Deal" initiated the regulation of agriculture and industry and FDR was able to squeak out a reelection victory.

How does one weigh a Gallup poll against the actual referendums conducted under the sort of legislation permitted by Wickard? (Remember that farmers had to approve marketing quotas for their crop and over the years most referenda passed.) At least for agriculture, the government's "regulation" was more a delegation of sovereign authority to groups, enabling the group to enforce a cartel against free-riders. (That's more or less the way my professor back in 1963 put it, and after working in USDA I think he got it right.) I realize that's not the way the court looked at Wickard, but that was the bureaucratic reality.
12.23.2006 7:06am
Brett Bellmore:

This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause.


Well, as for this libertarian, I'm just fond of this thing called "the rule of law". We happen to have a constitution which, honestly interpreted, DOES limit Congressional power under the commerce clause. The way I see it, if you're going to have unlimited government under a constitution which mandates limited government, and which requires all officeholders to swear an oath to uphold it, you're going to be ruled by people who are willing to violate their oath to exercise illegitimate power.

Why would any libertarian be cool with that?
12.23.2006 8:33am
Clayton E. Cramer (mail) (www):

This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause. If Congress lacks the power to regulate, that means each of 50 states has independent power to do so. That seems to me to multiply by 50 the chances of interference with the market. In fact, of course, state interference with commerce under the Confederation is precisely why the Commerce Clause is in the Constitution. So, putting aside whatever Constitutional arguments you have, for what policy reasons do you prefer state regulation?
Congressional authority to regulate interstate commerce had the net effect of preventing the states from regulating interstate commerce. (Disputes over state granted monopolies on shipping between New Jersey and New York, I think, was one of the provoking controversies for the Philadelphia Convention.)

If Congressional power to regulate interstate commerce meant that ONLY interstate commerce was subject to federal regulation, this wouldn't be so bad. The Raich case, for example, didn't involve marijuana crossing state lines. The Lopez decision struck down the Safe Schools gun ban because there was no interstate commerce involved. The National Firearms Act would only apply to weapons that had crossed state lines.

State governments would certainly use and abuse their authority to regulate intrastate commerce, but at least an honest interpretation of the interstate commerce clause would significantly rein in governmental power.
12.23.2006 10:18am
Mark Field (mail):

But it's not as dangerous as federal regulation because people and businesses can "vote with their feet" against state regulation. Interstate competition therefore sets limits on harmful state regulatoin.


You can, of course, give any reason you want; I was just curious. This reason, though, makes no sense to me. First, it doesn't really address the problem of market interference by 50 masters rather than 1. It just says that people can leave if they don't like the interference (as they can today, albeit with more difficulty). Second, it's not very practical advice for those affected. As Thomas Jefferson once put it in a related situation, "all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."


We happen to have a constitution which, honestly interpreted, DOES limit Congressional power under the commerce clause.


While I disagree with your interpretation, I understand the Constitutional argument. That's why my original post specifically said, "putting aside whatever Constitutional arguments you have, for what policy reasons do you prefer state regulation?"


Fortunately for the economy, business of all sizes has a better imagination than you do.

For quite a few years Detriot produced "California" variants of its passenger cars to comply with CA's more stringent pollution regulations.


Of course businesses can operate under these conditions. Surely they'd prefer not to. And surely a libertarian would prefer that they not. So why encourage a system which makes multiple and inconsistent regulation more likely?


By the by, you have heard of the Uniform Commercial Code? That was achieved without Congress wielding it's mighty commerce clause power.


I don't see how this helps the libertarian argument. The UCC was adopted because states and businesses recognized that individual state regulation was undesirable and that a uniform rule is necessary. That's what Congressional regulation can provide as a matter of course.


Interesting presumption (from a non-libertarian) that all govt is [potentially] meddling. ;-)


I intentionally phrased it in libertarian terms to soften your resistance.


You could argue that the citizen-consumers in the meddling-prone states would suffer and it is the beneficent federal govt saving them from such. Then again, don't people get the govt they deserve (and should pay for)?


Sure, but you can make the same argument regarding federal legislation.


Alabamans probably don't want to live by California or Massachusetts rules, nor vice versa. Not to mention the benefit of being able to trial different policies for results/consequences.


These are good conservative/Brandeisian arguments, but they aren't libertarian ones. I understand why conservatives prefer state control rather than federal, but I'm not convinced libertarians have thought this one through. To phrase it colorfully, I think you guys have swapped so much spit with the conservatives that you've swallowed their Kool-Aid.
12.23.2006 10:36am
Speaking the Obvious:

Just Dropping By says of the American people asked: "Should Congress be able to enact laws to protect children from gun violence," (i.e., the Lopez case) probably a majority of respondents would say yes.

Juris_imprudent responds: LOL, and then you can ask them if they've stopped beating their wives and if they would like to see a cure for cancer. You can't frame a serious question like that and expect anything but the answer you've built in.

Try posing the question as "Is it the responsibility of:
A) your local school district, B) your state legislature, or C) Congress to assure the safety of your children while they are in school"? I seriously doubt you would get a majority saying "C".

----

More interesting would be the poll question: "The Supreme Court has ruled that it is unconstitutional for Congress to enact laws that regulate local schools in an effort to lower gun violence, the Consitution saying that such laws are better drawn at the state or local level. Do you feel this decision justifies amending the US Constitution?"
12.23.2006 11:54am
David Sucher (mail) (www):
"Would you favor or oppose an amendment ....Forty-three percent of respondents answered "yes," while a strong majority of 57 percent said "no.""

Just curious but how do you vote 'Yes' or 'No ' to a question offering alternatives?
12.23.2006 11:58am
Joseph Hovsep (mail):
54% said that government is "doing too much" that should be left to individuals and businesses, while only 37% said that government is doing too little.

Maybe this is the best statistical evidence available but I don't think it speaks to the federalism question addressed by McConnell. The question is whether the public cares whether the federal government tackles a given issue. This data suggests general skepticism of government, but not relative faith in state vs. federal government.
12.23.2006 2:02pm
David M. Nieporent (www):
Mark:
This is slightly tangential, but I've never understood why a libertarian would oppose Congressional power under the Commerce Clause. If Congress lacks the power to regulate, that means each of 50 states has independent power to do so. That seems to me to multiply by 50 the chances of interference with the market. In fact, of course, state interference with commerce under the Confederation is precisely why the Commerce Clause is in the Constitution. So, putting aside whatever Constitutional arguments you have, for what policy reasons do you prefer state regulation?
The constitutional argument you ask us to bypass is an important libertarian one, even if the substantive constitutional provision isn't itself libertarian, because if Congress won't obey the constitution in one area, then none of the rights protected by the constitution are safe.

Additionally, federalism is a libertarian value because the lower the level of government, the easier it is to avoid it. If I don't like what Congress does, I have to move to Canada. If I don't like what New Jersey does, I can move to Pennsylvania. The latter is a lot easier than the former. And the Commerce Clause is designed specifically to prevent New Jersey from interfering with Pennsylvania, so the Constitutional view is pro-liberty.
12.23.2006 3:09pm
juris_imprudent (mail):

Of course businesses can operate under these conditions. Surely they'd prefer not to. And surely a libertarian would prefer that they not.

Why would a libertarian prefer that? Certainly not all libertarians believe that the purpose of govt is to make life easy for big business. Shock of shocks, but many libertarians aren't all that fond of big corporations. Your supposition seems to be a bit of a strawman. Given that I've made my position clear, please stop arguing that a libertarian must support what big business wants.

That's what Congressional regulation can provide as a matter of course.

The twist is that the states can choose to implement all or part of the UCC, whereas federal law allows no tailoring. That leaves you (a particular state say) with no choice and you must either live by a majority imposed rule or seek to have the rule watered down to a tolerable (in your view) level. What is the advantage, from the perspective of a free society in that?

Sure, but you can make the same argument regarding federal legislation.

Indeed. No one in the majority position will be offended - but what about minority rights. If the majority is always presumptively correct then the Bill of Rights is all wrong. By localizing an effect, you allow people to vote with their feet if need be, without making them sacrifice their citizenship. This would be more faithful to the active liberty position then the nationalization of all issues (subject to the tyranny of the majority [democratically-imposed] or of the philospher-kings [judicially-imposed]).

These are good conservative/Brandeisian arguments, but they aren't libertarian ones.

Yeah, well I'm more of a pragmatic libertarian then a doctrinaire one; and one more concerned about centralized than localized power. Besides, if some people want to live in a control-freak's paradise, they should be able to choose to do so. That doesn't mean everyone should have to - and that is exactly what you get with unconstrained centralized power. The very thing to which this country was founded in opposition.
12.23.2006 3:19pm
Mark Field (mail):

The constitutional argument you ask us to bypass is an important libertarian one, even if the substantive constitutional provision isn't itself libertarian, because if Congress won't obey the constitution in one area, then none of the rights protected by the constitution are safe.


I agree with this in principle, of course, I just disagree when it comes to the proper interpretation of the commerce clause.


Additionally, federalism is a libertarian value because the lower the level of government, the easier it is to avoid it. If I don't like what Congress does, I have to move to Canada. If I don't like what New Jersey does, I can move to Pennsylvania. The latter is a lot easier than the former. And the Commerce Clause is designed specifically to prevent New Jersey from interfering with Pennsylvania, so the Constitutional view is pro-liberty.


To the extent this repeats Prof. Somin's argument, I responded above. If you're saying that states make better decisions than the federal government, I have to disagree based on Madison's key insight: that the larger the electorate, the fairer the decision-making:

"The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it." Federalist 10.
12.23.2006 3:22pm
Mark Field (mail):

Your supposition seems to be a bit of a strawman. Given that I've made my position clear, please stop arguing that a libertarian must support what big business wants.


That wasn't my point at all. It was suggested that businesses could find ways to operate even in the face of conflicting state regulation. I responded that of course they can do that, but surely nobody would want to do that if they could have a market with just one rule instead. My comment about libertarians was not intended to suggest that they automatically support business, it was that I wouldn't expect a libertarian to favor multiple interference with the market.


The twist is that the states can choose to implement all or part of the UCC, whereas federal law allows no tailoring.


Sure, but your original point seemed to be that states could arrive at uniform regulation without the feds. Assuming I understood that correctly, your latest post somewhat undoes the advantages of that because every time a state modifies the UCC, that makes it less "uniform" and brings back the problem of a market with 50 regulators rather than 1.


By localizing an effect, you allow people to vote with their feet if need be, without making them sacrifice their citizenship.


Prof. Somin and DMN also made this point and I responded above. I'm not sure I see this as a libertarian value, but perhaps it is.

Since this is a policy discussion, wouldn't it make more sense to give regulatory power to counties or even cities? That way, moving would be even easier. And that way there would be thousands of governments to interfere with the market rather than 50. Or 1.


Yeah, well I'm more of a pragmatic libertarian then a doctrinaire one; and one more concerned about centralized than localized power.


If you're more concerned about centralized power, then I assume you must disagree with Madison (see above). That's ok, but I think he's right.
12.23.2006 3:36pm
juris_imprudent (mail):

...it was that I wouldn't expect a libertarian to favor multiple interference with the market.

Again interesting, that as a non-libertarian you assume that all govt is interference with the market. Markets in fact depend on govt as the guarantor of the rule of law. Now, if you proposed 50 non-republican govts, i.e. what we have in the international marketplace (which btw works pretty well itself as demonstrated by multinational corporations), then your assumption of "interference" would hold more water. The UCC cuts against that - whether adopted in whole or in part.

your latest post somewhat undoes the advantages of that because every time a state modifies the UCC

I can't help but think of "a foolish consistency...". One single bad regulation, applied uniformly, could be much worse then a patchwork of varying degrees of "interference". Now I will grant that in a macro-economic sense, a single regulatory regime is more "efficient" from a cost perspective. But again, so what? Just judging from cost and not in balance of the concommitant benefits gives a skewed result. And how very unbalanced to consider opposition simply because big business would find it inconvenient.

I'm not sure I see this as a libertarian value, but perhaps it is.

It is due to the intrinsic freedom to choose.

If you're more concerned about centralized power, then I assume you must disagree with Madison (see above). That's ok, but I think he's right.

And yet his proposed power for Congress to invalidate state laws was rejected by everyone of the day, not just the anti-Federalists.

In our system I can live with states being the primary locus of general power rather than further devolution. Fifty seems a reasonable dispersion rather than thousands - though obviously not for purely theoretical reasons.

Let's turn your reasoning on it's head and argue against a tri-partite federal govt. Wouldn't it be easier (or more efficient) if executive and judicial power were combined - then once a rule is made there would be no messy litigation over it.
12.23.2006 5:53pm
David M. Nieporent (www):
To the extent this repeats Prof. Somin's argument, I responded above. If you're saying that states make better decisions than the federal government, I have to disagree based on Madison's key insight: that the larger the electorate, the fairer the decision-making:
In Madison's day, given the extremely limited franchise and relatively small population of the country, states may have represented a rather narrow set of interests. But states are plenty large and diverse of an electorate nowadays -- half the individual states of the U.S. have a larger population than the entire country did when Madison was writing.

In any case, that simply ignores the virtue of competition. States have to compete with each other to attract businesses and citizens. Given the extreme difficulty of crossing international borders, the federal government has little competition. If a state makes a bad decision, you can pick a different one.

If you're more concerned about centralized power, then I assume you must disagree with Madison (see above). That's ok, but I think he's right.
But you're being ahistorical. At no point during Madison's lifetime did the federal government assume general police powers via the Commerce Clause, as it does nowadays.
12.23.2006 6:14pm
Mark Field (mail):

Again interesting, that as a non-libertarian you assume that all govt is interference with the market.


Well, as I said above, I'm partly making this assumption because that's what I see libertarians as believing. I actually tend to see things somewhat that way myself, but I think there are good reasons for government to intervene sometimes. I assume we all have interventions we approve and those we don't, that this debate is partly a matter of degree.


Markets in fact depend on govt as the guarantor of the rule of law.


Agreed.


in the international marketplace (which btw works pretty well itself as demonstrated by multinational corporations


Sure, as I conceded above regarding state regulation. I'm trying to get at what would be most theoretically desirable from a libertarian perspective. I assume the goal would be minimal government regulation, yet having multiple regulators strikes me as inconsistent with that goal.


One single bad regulation, applied uniformly, could be much worse then a patchwork of varying degrees of "interference".


Agreed.


Now I will grant that in a macro-economic sense, a single regulatory regime is more "efficient" from a cost perspective.


Yes, and this is much of what I'm getting at. Not that it benefits "big business" (though it does), but that there are market efficiencies which I assume libertarians would value.


It is due to the intrinsic freedom to choose.


Ok, though I would think the real libertarian value is the ability to choose without "voting with your feet". The latter is more of an escape valve than an ideal and hardly unique to libertarians.


And yet his proposed power for Congress to invalidate state laws was rejected by everyone of the day, not just the anti-Federalists.


Yes, but in part because a good many Federalists thought that the proper branch for this review was the judiciary. (I'm not raising this to start a new argument, I'm just sayin'...)


Wouldn't it be easier (or more efficient) if executive and judicial power were combined - then once a rule is made there would be no messy litigation over it.


I'm sure pretty much everyone except perhaps a few neo-cons would agree that any efficiency advantages would be canceled out by the opportunity for oppression and abuse.
12.23.2006 7:08pm
Mark Field (mail):

In Madison's day, given the extremely limited franchise and relatively small population of the country, states may have represented a rather narrow set of interests. But states are plenty large and diverse of an electorate nowadays -- half the individual states of the U.S. have a larger population than the entire country did when Madison was writing.


Fair enough, but it will always remain statistically true that the whole population will contain greater variation than any sample of that population. Madison's point is that this greater variation is what makes for better decision-making. There may be some number of people beyond which the benefit is minimal, but I don't know what that is.


In any case, that simply ignores the virtue of competition. States have to compete with each other to attract businesses and citizens.


There certainly is some benefit to that. But if this is your argument, I don't see the basis for substantive opposition to any government regulation. The response will always be, in effect, "love it or leave it".


At no point during Madison's lifetime did the federal government assume general police powers via the Commerce Clause, as it does nowadays.


True enough, but not the point I was making. I was only commenting on the quality of the decision-making process, not the substantive powers granted. That said, it seems to me that we'd want to lodge the most power in the best decision-makers, and Madison tells us that's the federal government rather than the states.
12.23.2006 7:24pm
Mark Field (mail):

Wouldn't it be easier (or more efficient) if executive and judicial power were combined - then once a rule is made there would be no messy litigation over it.

I'm sure pretty much everyone except perhaps a few neo-cons would agree that any efficiency advantages would be canceled out by the opportunity for oppression and abuse.


One additional point about this. Madison was speaking of republican systems; he was comparing the quality of decisions ONLY among those systems. Combining the executive and judiciary would, of course, make the system no longer republican. There might be a gain in efficiency in a dictatorship, perhaps (Mussolini, trains, etc.), but that would take it out of the range of options under discussion here.
12.23.2006 7:29pm
juris_imprudent (mail):

I'm trying to get at what would be most theoretically desirable from a libertarian perspective.

Ah, then you need to find yourself a theoretical libertarian. ;-)

...but that there are market efficiencies which I assume libertarians would value.

Nope. The argument you are making is a Keynesian/Galbraithian one, not a Friedman/Chicago-school one. So what if there is some macro inefficiency, that just isn't really that big a deal. It's an efficiency vs. efficacy argument.

Ok, though I would think the real libertarian value is the ability to choose without "voting with your feet".

Well, of course. Pretty much anyone would view it as a last resort. The point is by making it relatively easy, within the confines of the nation-state, you can find out pretty clearly what people's preferences are (that aren't always reflected in electoral terms).
12.23.2006 7:34pm
juris_imprudent (mail):

Madison's point is that this greater variation is what makes for better decision-making.

And it was Madison who wrote how the federal govt was expressly limited to the enumerated powers. The federalists (Hamilton) also wrote that a Bill of Rights was not only un-necessary but overly limiting (in that rights not listed would not be treated equally). Today, we have a jurisprudence that allows federal criminal prosecution of non-commerical, intra-state activity over one of the most fundamental decisions a citizen can make.

These are not days to proclaim too loudly the wisdom of the Federalists. Or at least not to say that we are living within the scope of the federal system as they envisioned it.
12.23.2006 7:46pm
Mark Field (mail):

These are not days to proclaim too loudly the wisdom of the Federalists.


Well, when it comes to Madison's fundamental point -- the ability of republican government to overcome its weaknesses -- I'm a believer. Color me naive.
12.23.2006 8:02pm
juris_imprudent (mail):

Well, when it comes to Madison's fundamental point -- the ability of republican government to overcome its weaknesses -- I'm a believer.

OK, so which decision is better, the scheduling of marijuana under the CSA (and per Raich), or the referendum on marijuana from the voters of California (and several other states)? Do you agree with Madison that the federal decision reflects a better result, democratically and/or judicially?
12.23.2006 8:09pm
Mark Field (mail):

OK, so which decision is better, the scheduling of marijuana under the CSA (and per Raich), or the referendum on marijuana from the voters of California (and several other states)? Do you agree with Madison that the federal decision reflects a better result, democratically and/or judicially?


In fairness to Madison, he didn't argue that EVERY decision would be better, just that in general they'd be better.

Since I voted for the CA initiative, my policy preference is obvious. But given my view of the commerce clause, I believe the Court reached the legally correct result.


The argument you are making is a Keynesian/Galbraithian one, not a Friedman/Chicago-school one. So what if there is some macro inefficiency, that just isn't really that big a deal. It's an efficiency vs. efficacy argument.


There's a good deal of truth to this. It just seems to me that if I were a libertarian starting from scratch, I would reason like this:

1. My policy preference is to have minimal regulation of the economy.

2. If I give to Congress all the power to regulate the economy, my basic policy preference benefits three ways:

a. I automatically eliminated the risk of bad regulation at the state or local level.

b. I made my own task easier in the sense of being able to focus my arguments in one place.

c. I have Madison's assurance that the greater variety of interests represented in Congress (compared to the states) will make it less likely that Congress will enact factional policies than states would.

The only downside to this strategy is that a bad regulation imposed nationally would cause more harm than one adopted at just a state or local level. Even this is mitigated by the fact that bad regulations at the state level would be more common -- even if each one individually would cause less harm, collectively they might well cause more.

Overall, the benefits of national regulation sure seem to outweigh the detriments. Of course, I'm not a libertarian and you guys don't reach this conclusion; hence my original question.
12.23.2006 10:20pm
juris_imprudent (mail):
Mark,

You don't seem to see the contradictions between 1 and 2, particularly given Madison's assumption that the sharper edges of factionalism (of which libertarians would be but one) are blunted by the more diverse national electorate. Not to mention that libertarians are skeptical of govt power and its ability to do good (vice doing harm) in the first place. So the second assumption is not congruent with the first - at least from the libertarian perspective. If (and this of course is the BIG IF), govt is as or more likely to harm, then the whole point of minimizing govt is to minimize harm. From that standpoint, the greatest harm comes from the biggest govt - and there is no question that is the federal beast. That there is a small macro-economic cost that goes with this is entirely tolerable.

It's a bit like the liberals/lefties who came to understand that an over-reaching federal govt can have some rather unpleasant consequences when it is controlled by their mirror opposites. Not that I would expect them to carry that lesson forward should they regain power. Their conversion to federalism will be as hollow as the Republican/conservative commitment to it was.

You seem to be hewing to Breyer's argument, that active liberty is best served nationally (in ironic juxtaposition to the original proponents). But Madison's axiom cuts against that - that the national govt is LESS responsive (by nature of the more diverse representation).

And consider the hodge-podge of who may control what, just in the sphere of medicine. Roe over-ruled state laws against abortions (under the pretext of a penumbra). Yet it would certainly be reasonable under your view of the commerce clause to rule that federal law could control such (since it does with the dispensing of medicine). Yet Roe held that medical decision making should be entrusted to the physician and patient. Raich disposes of that. Why? All so that we don't look at the sand upon which the edifice of the modern federal regulatory state is built. As I said in my first post, I firmly believe that the people would not be nearly so disposed to granting the power to the federal govt that that govt has arrogated to itself. And I believe that the proponents of the expanding state agree, which is why they don't put the choice to the people directly.
12.24.2006 3:16pm
David M. Nieporent (www):
Mark,

Leaving aside a disagreement over what Madison would have thought I don't understand your overall argument here. You asked why a libertarian would support federalism. I (as well as some others) gave a couple of answers. Your response, in essence, was that Madison would disagree with the wisdom of that. It may or may not be true (*), but so what? How is that responsive to our argument?

You argue as a hypothetical libertarian:
2. If I give to Congress all the power to regulate the economy, my basic policy preference benefits three ways:

a. I automatically eliminated the risk of bad regulation at the state or local level.
And the chance of good (non-)regulation at that level. This doesn't benefit either "side's" "basic policy preference.
b. I made my own task easier in the sense of being able to focus my arguments in one place.
And the task of the statists is easier for the same reason. This doesn't benefit either "side's" "basic policy preference" either.
c. I have Madison's assurance that the greater variety of interests represented in Congress (compared to the states) will make it less likely that Congress will enact factional policies than states would.
This is the only part of your argument that actually (if valid) argues for centralization. But I don't think it valid. First, "Madison says so" isn't really an argument as far as the empirical question of what would happen goes. Second, I don't think we're even talking about the same thing. Madison may be right about what he's talking about, but the evil here isn't "factional policies" as he meant that.


(*) I don't see any reason to interpret Federalist 10 to say "more centralized decisionmaking is always better," which seems to be your view of it. I would interpret it as "you need diversity, so that one faction can't control." Which in Madison's time might have required more national governance, but isn't the case today.
12.24.2006 6:01pm
Mark Field (mail):

You don't seem to see the contradictions between 1 and 2


No, in fact I see them as entirely consistent. The whole point of Madison's argument is that the federal government is less likely to do harm. For him, "harm" was faction, i.e., the use by a minority of the power of government to enact laws contrary to the true interests of the majority. His position is therefore, in my view, fully consistent with the libertarian skepticism "of govt power and its ability to do good".


If (and this of course is the BIG IF), govt is as or more likely to harm, then the whole point of minimizing govt is to minimize harm. From that standpoint, the greatest harm comes from the biggest govt - and there is no question that is the federal beast.


I think it's important to distinguish the size of the government itself from the size of the electorate. What Madison tells us is that the larger electorate will produce better government (on average). This says nothing about the size of the government; that's an independent concern. As I pointed out above, state governments might do harm on a smaller scale, but they will do it more often.


Yet it would certainly be reasonable under your view of the commerce clause to rule that federal law could control such (since it does with the dispensing of medicine).


Interesting example: I once argued this with DMN. It was a hypothetical discussion; I'm not sure I actually agree with the conclusion, but the argument can certainly be made.


As I said in my first post, I firmly believe that the people would not be nearly so disposed to granting the power to the federal govt that that govt has arrogated to itself.


I think the electoral experience over the last 75 years disproves this, particularly the experience of Bush 43. If you think our system is at all republican, it's hard to argue that the government could for so long act contrary to the wishes of a majority of the people. I think people DO agree that the government shouldn't have power to do the things they personally don't like, but that's a very different political issue.
12.24.2006 6:06pm
David M. Nieporent (www):
Sure, as I conceded above regarding state regulation. I'm trying to get at what would be most theoretically desirable from a libertarian perspective. I assume the goal would be minimal government regulation, yet having multiple regulators strikes me as inconsistent with that goal.
It isn't. You don't have "multiple regulators." You have one regulator in any one place. Any transaction has only one regulator. The fact that different transactions in different places may have different regulations is not the same thing as facing multiple regulations for the same transaction. The important thing, as far as minimizing regulation -- and this is where the commerce clause comes into play -- is that we don't want one state being able to interfere in business that takes place in another state. That's what the commerce clause is designed to prevent.

In any case, (1) libertarians want to maximize liberty, not efficiency, and (2) you're again ignoring that competition -- including competition over regulatory schemas -- is the best way to promote efficiency. The best regulatory regime doesn't arise from having lots of people provide input. That's better than having only a few people provide input, to be sure (which is Madison's argument), but it's not optimum. The best regulatory regime arises from having market pressures find an equilibrium between under- and over-regulation.


There certainly is some benefit to that. But if this is your argument, I don't see the basis for substantive opposition to any government regulation. The response will always be, in effect, "love it or leave it".
Not at all. That doesn't follow in the slightest. No more than supporting the right to vote means that the response to government abuses is "Don't like it? Don't vote for them next time." The basis for substantive opposition to government regulation can range from "this regulation is bad" to "this regulation is immoral." The fact that there's a way to escape doesn't justify the bad regulation. You asked the practical reason to support federalism.

Slaves could flee from the South to Canada, but that's not an argument that slavery is fine; it's just a practical argument why having multiple countries is a good thing.
12.24.2006 6:17pm
Mark Field (mail):

And the chance of good (non-)regulation at that level. This doesn't benefit either "side's" "basic policy preference.


If I eliminate the power of state government to regulate at all, then the (non-)regulation preferred by libertarians becomes the default condition at the state level.

As for good regulation (and everyone agrees some of that is essential), we get back to how we interpret Federalist 10. See below.


And the task of the statists is easier for the same reason.


Fair enough.


First, "Madison says so" isn't really an argument as far as the empirical question of what would happen goes.


True enough, but we're all arguing theory here. After all, it's not like there's an actual libertarian system somewhere that we can look to for experience. You guys are asking all of us to take your view on faith (and, in my view, quite against the experience of history with systems much closer to the libertarian ideal than what we have now).


I don't see any reason to interpret Federalist 10 to say "more centralized decisionmaking is always better," which seems to be your view of it. I would interpret it as "you need diversity, so that one faction can't control."


"More centralized"? Ok, if this means "policy made by the greater number". I don't think Madison envisioned micro-management from a central location, and neither do I. What I understand him to mean, and what I certainly mean, is that basic policy should be set at the higher level, with actual implementation to take place according to experience.

Putting this aside, and taking your statement on its own terms, surely you'd agree "lack of faction" is at least related to better decision-making, even if they aren't identical.
12.24.2006 6:20pm
Mark Field (mail):

You don't have "multiple regulators." You have one regulator in any one place.


I guess I'm not sure what you mean here. Let's take an example from US history. Suppose I'm a distiller of liquor in PA. I want to sell my liquor in other states. ME won't let me because it bans the sale of liquor. Other states demand that I make my liquor a different way in order to sell there. I have to satisfy multiple regulators in order to do business at all (outside PA). Do you disagree?


The important thing, as far as minimizing regulation -- and this is where the commerce clause comes into play -- is that we don't want one state being able to interfere in business that takes place in another state. That's what the commerce clause is designed to prevent.


I agree with this, but isn't it equally obvious that the same benefit conferred by national enforcement of the commerce clause extends similarly to national enforcement of other regulations?


The best regulatory regime arises from having market pressures find an equilibrium between under- and over-regulation.


You say this, but I doubt it. In any case, this is not an argument against substantive regulation, but an argument for empirical decision-making based on a variety of environments. That's what the world looks like now.


The basis for substantive opposition to government regulation can range from "this regulation is bad" to "this regulation is immoral." The fact that there's a way to escape doesn't justify the bad regulation.


I agree. I thought this was MY point.
12.24.2006 6:31pm
Captain Obvious (mail):

Ilya Somin: At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation." It goes without saying that decisions like Wickard and Raich might be correct even if the majority of the public does not "accept" them.



According to the survey data cited above, the public may accept virtually limitless interpretation of congressional power when it advances social activism but reject such interpretation if it advances economic activism. Putting aside whether acceptance can mean "informed indifference," how do we classify Raich? Justice Stevens in part justifies Raich's outcome by chronicling the history of Congress' occupation of the field of regulating drugs. Have the federal government's efforts to regulate drugs since the Nixon administration targeted economic or social activity? Are those citizens who support increased social activism by the government also voters who support the War on Drugs? Was the "Just Say No" campaign an economic or social campaign? If the federal government's regulation of drugs has been either solely social or a mixed purpose regulation with both economic and social ends in mind, then it is possible that many, if not all, of the voters who accept the virtually limitless post-New Deal interpretation of congressional Commerce Clause power for social purposes accept it for economic purposes as well. Certainly many of them, once made aware of Raich -- if not already aware of Raich, would be indifferent to the holding of the case.
12.24.2006 7:44pm
juris_imprudent (mail):
Mark,

No, in fact I see them as entirely consistent.

This just proves you don't grok the libertarian perspective. The second assumption is about macro-economic efficiency. David has expressly pointed out that simply is not a core libertarian concern. Now, it may indeed be possible to argue that you could maximize liberty (and satisfy the soul of every libertarian) rather than efficiency by "mandating" libertarian policy at the federal level, but even wild-eyed libertarians would doubt the likelihood of that.

For him, "harm" was faction, i.e., the use by a minority of the power of government to enact laws contrary to the true interests of the majority.

Ah, that would explain that whirring sound - Madison spinning in his grave over Kelo (as just one example).

I think the electoral experience over the last 75 years disproves this

Really? Given the percentage of the electorate that actually votes you think that is an accurate reflection of their views? How exactly do you get an electoral mandate from people who don't vote?

If you think our system is at all republican, it's hard to argue that the government could for so long act contrary to the wishes of a majority of the people.

I think very few people are that aware of all of the things that the govt does that are questionable. Oh, they may have a few pet peeves, but it is actually pretty hard to get a handle on all of what the federal govt does.

Let's take another example of an entire regulatory scheme also hinged on the commerce clause: environmental protection. I would imagine most people in this country support at least some degree of environmental protection, so let's leave aside the argument about the degree. Here is a classic case of probably broad enough support for a proper grant of power to Congress, rather then back-dooring legislation through an inappropriate (overly expansive) reading of the commerce clause. So why is there no support for doing so? I would say it is because of the tacit agreement of the bureaucrats and the elite not to allow the people to peak behind the curtain, lest they start questioning other things. It is the same reason you get the absurd contradiction between Roe and Raich.
12.24.2006 8:21pm
juris_imprudent (mail):

After all, it's not like there's an actual libertarian system somewhere that we can look to for experience.

Actually, we have something pretty close - pre New Deal U.S. history. Personally, I'd throw in pre-Harrison Act for good measure. It has been the era of prohibition (first alcohol, then drugs) that has facilitated an enormous growth in federal power with almost no Constitutional authority.

Suppose I'm a distiller of liquor in PA. I want to sell my liquor in other states. ME won't let me because it bans the sale of liquor. Other states demand that I make my liquor a different way in order to sell there. I have to satisfy multiple regulators in order to do business at all (outside PA).

You realize that this is the current state of affairs. Would you substitute the judgement of the entire United States for what the citizens of Maine determine is in their best interest? The key assumption you are making is that your business in PA has some right to do business in every state on terms it finds desirable. It does not. No one forces you to sell your liquor outside of PA.

...isn't it equally obvious that the same benefit conferred by national enforcement of the commerce clause extends similarly to national enforcement of other regulations?

No because you haven't established a [libertarian] benefit, i.e. how does the policy maximize liberty. Remember, you've been trying to think like a libertarian.
12.24.2006 8:37pm
Mark Field (mail):

Actually, we have something pretty close - pre New Deal U.S. history.


I think you underestimate how much state regulation there was of the economy, even in the depths (my characterization) of the Lochner era.


You realize that this is the current state of affairs.


Sure. I used it as an example, though, because it was true even in the 1850s.


Would you substitute the judgement of the entire United States for what the citizens of Maine determine is in their best interest? The key assumption you are making is that your business in PA has some right to do business in every state on terms it finds desirable. It does not. No one forces you to sell your liquor outside of PA.


I understand this as a conservative argument, but not as a libertarian one. Your own comments seem contradictory here. On the one hand, you criticize prohibition as increasing federal power, while on the other you say ME is perfectly free to ban liquor. I fail to see the substantive difference here -- each case is one of government interference with what should be a legitimate transaction.


No because you haven't established a [libertarian] benefit, i.e. how does the policy maximize liberty.


This is what puzzles me. I think the logic I suggested above DOES maximize liberty. We obviously are talking past each other somehow and I'll have to think about a way to overcome that.
12.25.2006 12:03am
juris_imprudent (mail):

I understand this as a conservative argument, but not as a libertarian one.

Ah, I think I see part of the problem. I certainly wouldn't support the action of Maine. But if that is what they choose, so be it. You are right - it isn't a purely orthodox libertarian position. But then I told you I'm a pragmatist, not a dogmatist. However, I think even the most doctrinaire (big L) libertarian still would support such a democratic outcome if that is what the people chose - even as she packed her bags to move. I know, I know - again with the voting with the feet; but what else to do? Stay and ignore principle? Stay and start an insurrection? If there are significant barriers to exit, then you push people in one of those two directions.

I think the logic I suggested above DOES maximize liberty.

Only so long as the libertarian viewpoint was ascendant. For someone with possibly "progressive" tendencies, you should surely realize after the last dozen years that no viewpoint tes governance permanently. It is delusional to so presume. Therefore, the centralization of power, even if in the short-term beneficial to libertarian goals, could rapidly be turned against them. Better to decentralize the power, even if that means suboptimal results for California, etc.

Thanks for a most enjoyable discussion. Best wishes to you for the holidays and the new year.
12.25.2006 1:20am
Mark Field (mail):

Ah, I think I see part of the problem. I certainly wouldn't support the action of Maine. But if that is what they choose, so be it.


I agree that this is the heart of the problem. I thought about this last night and decided this was why I keep characterizing your position as conservative rather than libertarian. Let me explain.

There has always been a strain of American thought which prefers local control to more centralized, whether state v. federal or even city v. state. Today we call that preference "conservative", though in other days (e.g., 1800) we might have called it "liberal". Consistent with current usage, I'll call it conservative.

I think of this preference as procedural rather than substantive. By this I mean that the conservative isn't worried about the policy result so long as the decision is made at the appropriate level.* At its best, this has given us a wonderful variety of state experimental programs. At its worst, it was used to justify segregation and even slavery.

Libertarianism, to my understanding, is less procedural than substantive. That is, libertarians DO care about the policy result. They have a bias in favor of individual liberty. Thus, laws against the sale of liquor or in favor of segregation could in no way be characterized as "libertarian" even if they were passed at the appropriate local level.

This is my understanding, anyway. When I see libertarians resorting to what I consider to be a "conservative" argument, I wonder not only how you got out there on the ledge with the conservatives, but how the rest of us can safely talk you down.

*As should be clear from my posts above, I believe conservatives are theoretically wrong about the "appropriate level" for the reason Madison explained in Federalist 10.


Thanks for a most enjoyable discussion. Best wishes to you for the holidays and the new year.


Thanks and the same to you and David too. Excellent stuff.
12.25.2006 11:06am
David M. Nieporent (www):
Libertarianism as a philosophy is purely substantive, not procedural. We don't care whether a hereditary dictator or a popularly elected parliament implements libertarian policies. (And, conversely, we don't think oppressive laws passed by said parliament are any better than those same laws imposed by said dictator.)

But, like Madison (whom it would be anachronistic to describe as a libertarian, but by modern standards, he probably was), we know that in the long run, the nature of the procedures affect the substantive outcomes. So we support various constitutional checks and balances (including federalism), not because they themselves are libertarian, but because they are most likely to lead to libertarian results. (That does _not_ mean, of course, that merely because some non-libertarian policy is the product of those procedures, that we refrain from complaining about it. *)

As for the liquor question:
I guess I'm not sure what you mean here. Let's take an example from US history. Suppose I'm a distiller of liquor in PA. I want to sell my liquor in other states. ME won't let me because it bans the sale of liquor. Other states demand that I make my liquor a different way in order to sell there. I have to satisfy multiple regulators in order to do business at all (outside PA). Do you disagree?
No, I don't disagree. But businesses can choose where they want to do business, and (as I said) any transaction is subject to only one regulation. A national business might have to deal with different regulations for different transactions, but so what?
I agree with this, but isn't it equally obvious that the same benefit conferred by national enforcement of the commerce clause extends similarly to national enforcement of other regulations?
No, it isn't obvious. My talk about "national enforcement of the commerce clause" is explicitly the opposite of what you're talking about -- I'm saying that there will be no centralized regulation, and you're saying that there will be centralized regulation.
You say this, but I doubt it. In any case, this is not an argument against substantive regulation, but an argument for empirical decision-making based on a variety of environments. That's what the world looks like now.
No, it isn't the way the world works now, because the federal government regularly interferes with that competition between different regulatory regimes.



* On the other hand, if the government confiscated the Orioles from Peter Angelos via eminent domain, I could get behind that.
12.25.2006 8:46pm
DJR:
I'm not sure that the answer to a question that begins "would you support an Amendment to the Constitution" can ever give a meaningful answer about the policy question that follows. Personally, even before I became a lawyer, my answer to such a question would almost always be "no," because I believe the framers got it pretty much right. That would be true even if I personally was in favor of the policy issue.
12.26.2006 8:55am
Jam (mail):
Didn't the regulation of Interstate Commerce had to do with coinage, standards of weight and measures? Ditto for the treaties?

Simply put Interstate Commerce delegated authority is just for the implementing of standards, equally applied to all in union, for the moving of goods accross State lines.

Any other uses of the "Interstate Commerce" simply asks "what limitations, what delegated powers?"

The Interstate Commerce Clause, the creation of the consolidated "natin" and the tool for tyrants.
12.26.2006 1:16pm