Constitutional Philosophy

Lecture 3 Jon Roland December 1, 2012 Constitutional Philosophy

Law of Agency • Principal • Selects agent • To whom he delegates powers • And issues instructions • And holds accountable • Corrects or removes if powers exceeded • If not, becomes liable for actions of agent • Arises from constitution of society

What is a Power? • Generally, an expenditure of scarce resource • When on people, coercive • So it is meaningful to distinguish between “action” and “inaction” • Nondelegation of power is a decision not to act • “No decision” is a decision, but it can be not to expend or coerce, and accept consequences • A republican constitution presumes nonauthority to act, right to such presumption

Trust • Agency with three actors: • Settlor (principal) • Trustee (agent) • Beneficiary • Each is a distinct legal person • Although they can be combined in one individual • Whose own property separate from trust assets • And judgment must keep property separate

Corporation • For-profit or non-profit • A kind of trust • With multiple settlors (incorporators) • Multiple trustees (directors) • And multiple beneficiaries (shareholders, members) • With procedures for succession of each • So that the corporation outlives its individuals • But with its own assets, separate from actors • A legal “person”, recognized by law, but not “created” by it

Government is Corporation • Republic supposed to be a non-profit • Monarchy, oligarchy tends to be for-profit • Where some benefit at expense of others • Using politics to bypass the marketplace • Discussed in public choice theory • Calling the oligarchs or their supporters “rent-seekers” • Only known solution is sortition (selection of officials by lot)

Morality in Government • Discussed by Machiavelli • Often not possible to reconcile personal morality with needs of government and society • Sometimes must do evil to some to protect others (beneficiaries of the trust) • Or those in power • Or their policies • Which may be good policies, on the whole • But conflicts in interpretation of powers

Easy: one principal, one agent • If the principal and agent are each one individual, disputes on interpretation easy • The principal decides, and instructs, and can change the power from one day to the next • If the agent disagrees, he can resign • Or the principal can fire agent, get another • Main issues may come if agent owed money for his actions, or is penalized for his actions • If unauthorized, principal doesn't have to pay him

Multiple Principals? • May disagree on interpretation of powers • Even if they agree on structure, procedure • Or trust one another • Because successors may not understand • Or comply if there are ambiguities • But substantial consensus required on scope of powers delegated • So defaults to breadth of power on which all but a few can agree

Decision Rules • On less important matters, simple majority vote • On more important, like scope of powers, needs supermajority or near consensus • Majorities in 9 states ratified • But supermajority supported strict construction of powers • This reflected in amendment rules: • 2/3 of people though their representatives, plus • Majorities in 3/4 of the states

“Incidental” Powers • Earlier doctrine was power to be literally and strictly interpreted: Potestas stricte interpretatur • By 1776 Tory English doctrine allowed for delegated power to imply “incidental” powers • Necessary and Proper Clause of U.S. Constitution intended to delegate incidental powers • But that still left disagreement on the boundaries of what is “incidental”

Common Law Split • Most common law precedents in English courts • But colonial courts began to diverge from English precedents • This most notable in Zenger Trial (1735) • And recognition in colonial courts of colonists having “rights of Englishmen” • Whereas English courts often did not recognize colonial rights of Englishmen

Pre-1776 Authorities • Fall mainly into two camps, not just one • Tories favored broader interpretations of powers • Whigs favored stricter interpretation • In court, Tories led by Lord Mansfield • Whigs led by Lord Camden • Revolutionary Americans were mostly Whigs • Constitution written as Whig model

Commentators • Tory commentator William Blackstone (1766) • Whigs represented by Edward Coke (1628) • But Blackstone more recent, accessible • England trended Tory, leading to abuses that provoked American Revolution • So U.S. was reaction to Tory interpretation • But Tory thought carried by Hamilton, Marshall • While Whig thought by Jefferson, Madison • Which should be given greater weight?

Strict or Broad? • When principals disagree on scope of delegated authority, may ignore small minority, unless it can prevail in court • But may not ignore substantial minority, say more than 1/3 of the people or majorities in more than 1/4 of the states • From our rule, constitutional powers must be interpreted no more broadly than 1/3 of the people, or majorities in more than 1/4 of the states, in 1787, would tolerate • Deviation from this rule can bring civil conflict

Records of Ratification • Incomplete, but most states demanded and proposed amendments • Which were boiled down into the Bill of Rights • With most lumped into the Ninth and Tenth • No vote of people taken on how to interpret each provision • But we do have records of the public debate, which show a strong demand for strict construction of powers, broad for rights

Ratification and Aftermath • Enough insisted on Bill of Rights that there would have been no ratification without the promise of it • Federalists did not just “win” ratification debates • Proponents won ratification, but skeptics won on interpretation • Debate continued: Hamilton v. Jefferson • Culminated in Election of 1800 • And continues to this day: Statists v. originalists

Republic not Majoritarian • Can't protect rights if too many decisions made by simple majorities • Or worse, by pluralities of those voting • Majorities can be constructed of rent-seekers • Get tyranny of the majority • So well-designed constitution provides for blocking actions by minorities • Until consensus can be developed • Sometimes inaction is better

Republic presumes marketplace • But free market metastable, with three threats: • Unchecked government • Unchecked speculative investment • War or civil conflict • Requires constitutional devotion to restrain government and money • Only way so far found to restrain speculation is shmita • Seven-year reboot cycle (production, investment) • But shmita requires common government or religion

Causes of Dysfunction • Mistakes in original Constitution • Omissions in original Constitution • Ambiguities in original Constitution • Loss of devotion to Constitution • Loss of understanding of Constitution • Reliance interests supporting noncompliance • Unmanageably large and complex government • Unmanageable problems

Remedies • Amendments • Statutes • Elections • Appointments • Court decisions • Juries • Public education • Organizing public pressure • Leadership

Civic Virtue Decline • People too prosperous, complacent • People distracted by making a living • People distracted by entertainments • Don't motivate children to become educated • Education that neglects civics, retards maturation • Loss of community organizing • Fragmentation of families • Culture of deception

Poison Pill Proposals • Reformers led astray by clever proposals that won't work or will make things even worse. • People too willing to leave details to others, many of whom are not really on their side. • One form of this are “patriot myths” about law, although elites have their own myths. • Without investing in legal self-education, people don't know whom to believe. • Poison pills often absorb reformer resources, disappoint, and cause them to drop out.

Constitutional Apostasy • Constitution not perfect. • Was intended to be amended more than it has been. • But amendment difficult. • So too many just drifted away from original understanding in their practices. • And pretended the Constitution supports them. • But that pretense is becoming unsustainable. • Most reliance interests no longer pretend to be compatible with original understanding

Inconsistent Practices • When lose tether to Constitution, practices can become inconsistent, with the Constitution, and with each other. • The Rule of Law does not permit contradictions. • Allowing one contradiction allows them all. • And decisions become politics rather than law. • But politics requires some rules to avoid anarchy. • So we must find and resolve the contradictions. • Which will involve rediscovery of original meaning.

Reliance Interests • Called “rent-seekers” by economists. • Examined in public choice theory. • Some discover they can make more money through political process than in the market. • Just as they can by speculating in financial instruments instead of making things. • The result is bubble of government and the financial sector. • Bubbles burst, and this one can bring starvation.

Are the preppers right? • About economic collapse, yes. • But preparing for that requires places in the country. • And substantial resources. • Most can prepare for a few weeks, but need to prepare for years. • And form communities for mutual defense. • No good solution for small groups. • Even elites in bunkers probably can't hold out long enough.

But after the fall? • If we don't to turn to fascism, preparation needs to be for coming out on the other side of the Great Unraveling. • That means a constitutional order, not strongmen. • The Constitution we have is okay with some clarifications. • But we are going to need to rebuild devotion to it from the bottom up. • And prepare the people to carry it out.

End of Lecture

Constitutional Philosophy