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Three new constitutional amendments
The Cato blogad at the right, and Jim Buchanan's new essay, ask what three amendments you would pick for the American Constitution. Will Wilkinson suggests an amendment to ban interference with voluntary exchange.
Sadly, I am unable to come up with good candidates. I have plenty of ideas, such an amendment to forbid tariffs and quotas on foreign goods and services (would it cover health and safety concerns? Would we be assured of non-pasteurized French cheeses?). But I worry the amendments would place too much weight on the Constitution. It is easy to ignore a Constitution or to overturn it altogether.
Libertarians (and contractarians) often treat the Constitution as a kind of free variable to be manipulated. We can write into it what we want, and if we fail we treat this as a kind of lament, or a sign of moral decay, rather than a problem with our basic approach. In my view, if a constitution deviates from popular opinion (or is it the prevailing structure of interest groups?) by any more than "k" percent, that constitution will be chucked. Furthermore changing your constitution too much, or ignoring it too blatantly, is costly in terms of long-run political order. I view this as a constraint to be satisfied by political thinking, even though we can (and should) criticize that constraint at a meta-level.
That is why my three amendments would have to be modest. Free trade might stick as an amendment, especially if we added a national security clause. The Finns didn't get very far with a supermajority requirement for fiscal policy. I don't see "procedural" approaches, such as term limits, as yielding much gain. But local municipalities should not be allowed very strict anti-barbecue codes; I don't care what they do with the smoke. Nor should commuters be forbidden from driving on side roads during rush hour, just because the homeowners don't like it.
Here is one relevant critique of Buchanan. Surely you all have better ideas for three constitutional amendments; comments are open.
Posted by Tyler Cowen on December 8, 2005 at 07:23 AM in Law, Political Science | Permalink
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» Three wishes from New World Man - he's got a roadmap of Jupiter
An interesting debate is going on at Marginal Revolution about what you would ask for if you had three wishes -- more specifically, how you would amend the Constitution three times, if you could. The topic is prompted by a very interesting article by J... [Read More]
Tracked on Dec 9, 2005 9:10:45 AM
Comments
Real libertarians want the Constitution repealed. As Spooner said, it has
no authority.
Posted by: Bill Stepp at Dec 8, 2005 8:02:49 AM
I agree that nothing substantive (such as free trade) should be put into the Constitution. The C is too hard to change, and makes people really upset. That's why abortion should never have been read into it, or any number of other things. Politics have to happen. Instead, I would change how the Reps (and possibly the Senators) are elected to break the Republican & Donkey's grip on power. Essentially, I want to lower the cost of new entry while reducing the institutionalized power of encumbants to erect barriers.
For the House of Reps I would keep the number the same, but (1) elections would be state-wide, and (2) everyone gets two votes (I haven't decided whether or not you would be allowed to place both votes for one candidate). This would pretty much guarantee 3rd parties from a lot of the bigger States, as well as allow for more independents to gain a following.
It would also allow for dispersed special interests, that's true. You'd have to accept that some States with concentrations of extreme prejudice might send some obnoxious characters to Washington, such a White Supremecists or what have you, but that's Ok with me. Even if 2-3 Neo-Nazis got elected, who cares? They're far enough out in left field that no one on any side of the aisle would want to be seen with them. A couple Illinois Neo-Nazis or Californian ELF "activists" would be a small price to pay to let some real fresh air into Congress.
I would keep the number and election cycle of Senators the same, but I would allow each voter to name a 1st, 2nd, and 3rd choice in each election. That way I could vote for Libertarian as my 1st choice and not feel like I was 'wasting' my vote, or giving it to the Democrats. (Obviously the Greens would then be able to feel the same way too, which is fine with me).
I would set a term limit on Justices of the Supreme Court to 18 years and set it so that every President would get to appoint 2 Justices. Lifetime appointments in the age of Aubrey de Grey are a bad idea, politically. It would also un-do the incentive to appoint a 'pretty good' 48 year old when a stellar 62 year old is available. (That's not a comment about the new Ch. J., just about incentives generally).
For my 3rd Amendment I might try to normalize the process by which a new territory becomes a State. Puerto Rico needs to step up or shove off, and other areas that might be considering it (Alberta, Costa Rica, Australia, whoever) should have some more guidance.
Posted by: Brock at Dec 8, 2005 8:23:19 AM
Congress shall make no law interfering with free and voluntary exchange without demonstrating a clear and well substantiated market failure.
Just vague enough to do some good. Might do some good in getting rid of pure paternalist type laws.
Posted by: joshg at Dec 8, 2005 8:49:31 AM
#2 Election reform: Each candidate will run individually against each other candidate. If preferences are single peaked, we have a winner. If they are not, we have an election similar to what we have now.
Might help break up the party system.
Posted by: joshg at Dec 8, 2005 8:57:30 AM
Four words: abolish the income tax.
Another one: Any local, state, or federal funding for education must be provided to students without regard to which schools they attend, whether public or private, secular or sectarian, or selective or otherwise.
I agree with Brock's proposal of an 18-year term for the judiciary.
Posted by: Eli at Dec 8, 2005 9:14:09 AM
Why be sad? The fact that no obvious amendments make sense suggests that we have a pretty good instrument already in place.
Posted by: Skip Sauer at Dec 8, 2005 9:36:18 AM
Repeal (or substantially reduce) the 17th Amendment.
The big check on federal power was always meant to be the states, and for a long time they did put the brakes on the federal government. They were able to do this largely because the states had a voice in Congress -- the Senate.
But the 17th amendment has taken the states entirely out of the loop. Congress has no reason to defer to state government, and so has increasingly trampled it. We have had to depend on monolithic, centralized courts to check Congress rather than on states that can try a diversity of strategies and compete with and learn from each other.
If you want congressional power rolled back, you need to give the states a seat at the table. Make the Senate no longer House-lite but a genuinely different body representing a different constituency.
While it is true that the 17th amendment addressed difficulties that states had had in selecting Senators reliably and honestly, many states had already started addressing these issues on their own, with de facto senatorial primaries or even statewide elections. Send this choice back to the states, and you might see Senators who represent their states rather than their parties and interests of the federal government.
Posted by: Grant Gould at Dec 8, 2005 9:43:23 AM
Grant Gould's idea is interesting, and second Brock's 18 year limits on judges as well.
If Tyler is looking for something modest, one hobby horse of mine is ways to unbundle bills and spending packages. Every bill should be forced to deal only with one subject at a time (i.e. no 11th-hour riders inserted that have little or nothing to do with the main subject of the bill) and every individual budget item should be put to a mandatory up or down vote. It gets a lot harder for congresscritters to justify voting for bridges to nowhere in Alaska that way.
Posted by: Matt McIntosh at Dec 8, 2005 10:02:30 AM
Electoral reform, in particular I like the suggestion above about statewide-congressional ticket, and I woild like to reduce the gerrymander inherent in senate seats--keep the total the same,one for each state, then the balance assigned proportionately (i.e. wyoming 1, California 6 or so, depending on the quotient). This should yield various possible coalitions in the house, and a reduced rural veto.
Posted by: Roland at Dec 8, 2005 10:18:00 AM
I have an obvious suggestion. How about an amendment to amend a supreme court ruling without having it be a constitutional amendment. The change in the supreme court decision would still require the two-thirds majority in the Congress. I suppose it wouldn't have to have the 3/4 of states. It would not be an official consitutional amendment. It would just be a reruling on a supreme court decision.
Also, how about adding an appendix to the constitution. In the appendix, we could spell out in more detail an vague language.
Posted by: Michael H. at Dec 8, 2005 10:31:25 AM
Put a hard limit on the size of the tax code. I would argue for tax forms no longer than one 8.5x11 page front and back, including all supplemental instructions (no referencing a seperate encyclopedia). If politicians want to tinker with the code, they have to find a way to make room for it on the form (probably by dropping something else). Forced simplicity.
Posted by: Tory at Dec 8, 2005 10:32:58 AM
How about an amendment to abolish all Departments after a certain period of time, say 8 or 11 years. This would force the government to justify the existence the Department in question periodically. It could also undermine the stranglehold professional bureacrats have on regulations (which I view as unconstitutional laws, since Congress has not enacted them.)
Posted by: TDL at Dec 8, 2005 10:43:51 AM
1. Repeal the 17th Amendment, also 23rd (D.C. electoral votes, it is a rotten burough) and 26 (teenage voting, return the age of majority to 21).
2. Term Limits for the House and Senate. Its not that I expect a substantive change in either institution, but I think we are now held hostage to too many personal quirks and hobby horses. No more Robert Byrd, no more Teddy Kenndy. Let other fools take their places.
3. Maximum and Minimum Age limits for the judiciary. I am not in favor term limits, but I do think that they wear out their welcome. Also increase the minimum age for the President to 50. The ones we have elected who have been under that age have had problems.
Posted by: Robert Schwartz at Dec 8, 2005 11:28:56 AM
I fully agree: one can achieve quite a bit via clever constitutional fine-tuning, but there are limits. If one pushes too far, the constraints will simply no longer be binding.
Posted by: JB at Dec 8, 2005 11:38:23 AM
Congress shall enact no law that is not Pareto Optimal...except in the case where special interest groups prove to be sufficiently persuasion.
Posted by: Jason at Dec 8, 2005 12:12:41 PM
Make representation in the Senate bear some relationship to state population. The current system is ludicrous.
Posted by: Bernard Yomtov at Dec 8, 2005 12:17:43 PM
#3. No Selective Service.
Posted by: joshg at Dec 8, 2005 12:19:27 PM
I assume that you have nothing against private roads. Then, considering that the government is unlikely to sell a side street to its residents, even if they coordinate with each other and petition the government to that effect, why cannot the residents at least have the streets closed to certain forms of intrusion? If you have no business in a neighborhood in which you don't live, I think you have no business being there at all.
To me, there is little more unnerving than the realization that there is nothing, no security apparatus whatsoever, that prevents anyone from driving from anywhere in America right up to my doorstep. If they wish me ill, then it is the state -- which "we" supposedly charge with protecting our lives, liberties, and properties -- that has delivered them, free of charge, 99.9% of the way to my castle. Sure, were I wealthier, I could buy my way into a gated community. But if we didn't have the presumption that roads should be public, I think there would be some form of security, i.e., at least a simple road gate, for practically every residential area in the country.
Posted by: Jason Briggeman at Dec 8, 2005 12:24:20 PM
It will be a long time before I am convinced that multi-party republics are a good thing. Every substantial change in policy results in a real loss of investment in the status quo. Suddenly coal power is bad? Just build a new power plant, you stinking industrialist. Now oil is bad? Just build a new power plant, you stinking industrialist.
But a constitution which (accidentally) creates a two-party system is not one that creates a duopoly. The FEC's purpose of exsistence is to adminster the abrogation of the first ammendment. Politians should be able to get on the ballot ONLY through petition. How the parties conduct their business (and select their cadidates) should not be the business of the states. Parties should have no legal advantage in the political process.
Repealing the 17th would be a help, but it would not get us back to where we were. States love greenmail because it relieves them of the responbilities for their actions. I really don't know how to handle the federal-state money issue. There are important national policy goals which can have very uneven costs locally. (Think about all of the traffic we get in Texas due to NAFTA.)
Finally, a net value requirement for voting would straighten a lot of things out. (I came up with this when I was renting & poor) So would denying the vote to people who substantially live off the government dime, although this would be tough to administrate. (I came up with this when I was in the military.)
Posted by: Nathan Zook at Dec 8, 2005 12:29:30 PM
Rigid restrictions on private lawsuits, especially for personal injury. We'll save a fortune in insurance, and a lot of crooked lawyers will be out of business.
Posted by: Peter at Dec 8, 2005 1:06:24 PM
1) If Robert Schwartz wants to repeal the 26th Amendment, then I want this: "Robert Schwartz no longer has the right to vote."
2) "The sixteenth amendment is hereby repealed."
3) Still thinking...
Posted by: Neema at Dec 8, 2005 1:06:45 PM
I'd be curious to see what the ratio of population/electoral votes is for Washington D.C. compared to the rest of the country. It's probably lower than anywhere else, but not ridiculousy so. A compromise might be to set it at Maryland's rate, rounding up.
I also don't think repealing the 17th Amendment would have the effects that libertarians generally think it will.
My amendments:
1) I'll second Brock's call for setting some rules on how a territory becomes a state.
2) A two-part deal: Repealing the electoral college (or at least, assigning half of the electors based on the overall popular vote), and regularizing the Presidential primary process. The primary schedule would be set by size of states (1st week, a small state, 2nd week, a medium state, 3rd week, 3 small states, etc.) but the actual states used for each election would be determined randomly each election cycle, with as short a lead time as possible.
3) A requirement that Congress must approve any deployment of military forces abroad each month unless an official declaration of war has been passed. (Or any alternative which makes Congress assert its war-declaring authority one way or another.)
Posted by: Devin McCullen at Dec 8, 2005 1:13:37 PM
The income tax doesn't bother me that much, but what I wouldn't give to be able to get some Langres or Epoisses in the U.S.
Posted by: Paul N. at Dec 8, 2005 1:22:27 PM
Allow the line item veto.
When in the hands of the right president it can eliminate pork more so than campaign finance reform ever would. (The catch: you need a president who acutally uses his or her veto powers!)
Next I would have a unilateral disarmament of gerrymandering.
Finally, I would abolish the electoral college.
(Bonus fourth: I would allow foreign born citizens to run for president.)
Posted by: Macneil at Dec 8, 2005 1:31:10 PM
At least it's great to see the Constitution as a live tool continually in use. In Norway, it is too much of a relic. Every time it is updated, they write the updates in the old language style, and it is not really considered a tool. Example: When we debated joining the EU, a prominent law professor said that our current constitution would not allow the transfer of sovereignty. He was not agains the EU, but said that we should do it properly - change the constitution. However, the politicians mostly chose to ignore this, thus removing even more relevancy from the document.
Posted by: Stian Haklev at Dec 8, 2005 1:33:43 PM
