The Cato Institute has an interesting online forum called Cato Unbound in which it solicits the opinions of leading intellectuals on topics near and dear to libertarians. As of yet, they have not asked me to participate. Nonetheless, because I find the discussions interesting, and because I’ve been fortunate enough to have been granted space on this blog by my lovely spouse, I’m going to go ahead and throw in my two cents on the latest debate concerning the prospects for limited government. (If you have the time you should definitely check out the original exchanges beginning here, but for a quick breakdown that will make my reaction easier to follow: Anthony de Jasay is the author of the lead article, Gerald Gaus, Michael Munger, and Randy Bartnett all contribute reactions.)
In general, I agree with de Jasay’s conclusion that a written constitution cannot guarantee the eternal persistence of a limited government dedicated to the protection of individual, natural rights as described by Locke. However, I do not agree that this observation should compel those of us interested in the preservation of natural rights to abandon our commitment to the concept of a written constitution designed to limit government. There is much good to be promoted by this perspective and little harm to fear.
In the first place, I am inclined to believe that ideas do, in fact, matter when it comes to people making political decisions. This is the crux of the debate between de Jasay and Gerald Gaus begun in Gaus’s initial reaction,“Our Moral Sense and the Extensive State.” Though their subsequent exchange is framed more in the terms of utility and economic interest what I took away was that de Jasay believed individuals’ private calculations of material well-being are more important in determining the size and type of government they supported than are their views on moral questions of intangible effect. Gaus advances the opposing view, and both cited empirical evidence to support their claims. In a sense, they are both probably right as human beings seem to possess remarkable ingenuity when it comes to transforming pocketbook concerns into philosophical positions; and it does seem that many engage in this transformation when called upon to defend their vote, a process of justification more compatible with Gaur’s view. (As it happens, I actually have some qualms with Gaus’s interpretation of the contemporary public will, but I will address these later.)
Within this context, a written constitution serves a valuable purpose even if only as a point of reference. A willing coalition may misconstrue the language and intent of the foundational law, but so long as they do not dismiss the document wholesale, its continued existence will facilitate a peaceful and persuasive dialogue, and should public sentiment ever change in favor of a more consistent interpretation, the restoration of original restrictions would undoubtedly be aided by reference to strong historical precedent.
The second reason I believe a constitution is an important and worthwhile concept is that it does appear to have at least some inhibitory effect on the growth of government. Granted, we here in the U.S. are far from the state likely envisioned by the founders, but it has taken us a few hundred years to get here, and we are not quite so far gone as some other countries. In this I agree with Michael Munger who, in his first response, cited the separation of powers as a real and rational constraint on otherwise boundless government ambition. De Jasay replies that this separation of power is illusory given that, inevitably, only one branch “carries a gun,” so to speak, commanding the sole “legitimate” agency of force. However, in order to actually use this gun as a means to coerce compliance from the other branches, the executive would have to explicitly violate the constitution since it lacks the power to amend it unilaterally. While this is theoretically possible, as a practical matter, few presidents seem willing to take that step. In some ways, de Jasay’s irritation strikes me as a case of him letting the perfect be the enemy of the good except that I can’t
seem to discern what alternative he views as better.
Finally, as something of a side note, an ancillary and quite vitriolic exchange developed between Gaus and Manger as the two debated the validity of majority rule based on genetic predispositions. I mentioned earlier that I was uncomfortable with Gaus’s characterization of Cristina Bicchieri’s research purporting to show a psycho-physiological bias towards egalitarian social distributions. Gaus claims that humans are hardwired to view equal distributions of resources as fair and deviations from equality us unfair. I did not read the Bicchieri study and cannot comment on the empirical validity of her findings; however, to the extent that this preference for material equality is advanced as a justification in addition to an explanation for the welfare state, I find it totally inappropriate. Perhaps Gaus does not go this far, perhaps we should take him at his word that he presented this thesis only for its explanatory prowess. Even if that is the case, I find his final response to Munger at the least a wasted opportunity, for Munger, in his response “Of Little Green Men…” was right to describe this “egalitarian” bias as “stupid and unfair.” He was also correct in pointing out that “egalitarian” is nothing more than a byword for envy, and that no one who believes in the possibility of a better future for humanity should defend or settle for a government doomed to be dominated by the worst elements of human nature. This leads us to the antipathy towards democracy that Gaus perceives to run rampant among contemporary classical liberals. On the one hand, I agree with Gaus that democracy is the least bad form of government yet devised. On the other, I agree with Munger that there is no reason to celebrate democracy, per se, particularly if it consistently results in the deprivation of rights and establishment of institutionalized theft. This is where I feel Gaus missed an opportunity to temper the fatalistic tone of the Bicchieri message. It may be true that we are innately envious of one another, and that, at present, we have been yielding to these envious urges too much; but if it is also true that ideas matter and human beings can improve their lot in spite of genetic obstacles, then we can and ought to pay attention to an alternative and logically more consistent idea of fairness that focuses not on the present level of equality among the distribution of resources, but rather on the historical events that led to this distribution, in particular checking to see if they involved fraud or coercion. This is the place for Barnett’s invocation of Nozick and this is the place to focus on the traditional libertarian practice of peaceful persuasive discourse, for if the government is only to be bound by the general moral outlook of its citizens, we better get busy trying to influence that morality in a more positive direction.