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Constitutionality Arguments

February 28, 2013

Glenn Reynolds was recently on Econtalk and discussed constitutional obedience. The question was “Should we feel obligated to follow the Constitution?”. The Constitution has not been followed historically, even by the founders. Only 11 years after the Constitution was signed, the 5th Congress passed the Alien and Sedition Acts flagrantly violating the 1st Amendment. Since then, American history has been one long parade of Constitutional violations. Even the lowly 3rd Amendment has been violated. So if you’re concerned with the empirical question: “Does the Constitution stop the government from acting in certain ways?”, it seems to me the answer is a clear and resounding “no”.

The second issue is whether using Constitutional arguments is effective rhetoric. Once again, I think the answer is clearly “no”. Neither liberals nor conservatives care a bit when their preferred policies diverge from the Constitution, and why should they? If a policy is a good idea, why shouldn’t it be enacted? If the best argument your opponents can come up with against it is that it is unconstitutional, that’s a pretty good signal that it’s a good policy. If they had better arguments, they’d use them. Only a handful of public choice economists and legal scholars actually care about the Constitution in and of itself. If you think that something in the Constitution is a good idea, defend the idea on its own grounds. For example, if a law says “No one can discuss the Iraq war”, don’t just point to the 1st Amendment – talk about why outlawing discussion is a bad idea.

I really like the Constitution. I think America would be a better place if it were followed more literally. However, I realize that I’m in the minority, which means the burden of proof is on me and people who agree with me. I intend to use Constitutional reasoning for my own actions and beliefs, but I will no longer use it as rhetoric.

P.S. The actual Econtalk was rather low quality IMO. Russ didn’t mention Buchanan once and the whole thing seems repetitive.
There are two reasons why a Constitution would be a good idea:
1: To settle the rules of the game. You don’t want a system where the rules are constantly being changed by the politicans for their own advantage on the fly.
2: To provide constant expectations. If a law requires 50% majority to pass and it gets 50.0001% of the vote, it may be low, but it’s not going to be a stable law. If only one in a thousand people change their minds, the law could change dramatically. Making some laws difficult to change means people can expect them to last a long time. Maybe we’re not at the optimum with the current Constitution, but 50% isn’t optimal either.

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