American Constitutionalism

Good morning, Alaska.

As a constitutional political economist, rather than a historian, I will focus this week's comments on chapter 12 and American constitutionalism. For the excellent blog post questions on the origins of rule of law in Ancient Rome (chapter 11), I refer you to Scott Gordon's superb overview book on the history of constitutionalism, _Controlling the State: Constitutionalism from Ancient Athens to Today_. Chapter Three, on the Roman Republic, will do a much better job of addressing your questions than I can. Basically, Gordon argues (as Hayek does implicitly) that there have been many manifestations of liberty over the years – all of them incomplete and evanescent, but all of them influential for modern forms, from the British 17th century to the American 18th century (and what next???).

Chapter 12 is, as you might imagine, one of my favorites.

First, I like the way it sheds light on the tension between spontaneous order and planning – a question that is central to Hayekian thought, and which many, many blog posts have raised. After giving lectures on spontaneous order, I have often faced speakers who jump on me with an excited "gotcha!" question, which invariably goes something like this: "So… you've argued about the importance of spontaneous order. But the American constitution was clearly written, and thus designed. What do you make of that?" Well, chapter 12 addresses that. On p. 177, Hayek emphasizes that the American colonists originally appealed to their rights as Englishmen, rooted in the English common law tradition; when English institutions proved insufficient to safeguard rights and liberties, the Americans sought a different solution, which culminated in the constitution of 1787. So, yes, the American constitution of 1787 was a crafted document, designed by the framers, and the result of negotiations and other public choice considerations. But it was also profoundly respectful of existing traditions – sovereign/constituting states, local traditions of self-governance, English/colonial common law, etc. So the US constitution of 1787 was not an attempt to rewrite institutions ex nihilo (like the French revolution). Rather, it almost seems like the US founders had read Hayek's advice from earlier in the book: "In all our endeavor at improvement we must always work inside this given whole [of tradition, civilization, organic growth], aim at piecemeal, rather than total construction, and use at each stage the historical material at hand and improve details step by step rather than attempt to redesign the whole." (70, footnote omitted). In sum (back to language from chapter 10, p. 161), the American founders recognized, with Hayek, that "the task of the lawgiver is not to set up a particular order but merely to create conditions in which an orderly arrangement can establish and ever renew itself."

For those who are interested, I wrote my dissertation on Argentina's constitutional choice. I argue that Argentina's founders mistakenly tried to impose the American constitution on Argentina, even though the cultural soil wasn't fertile, because Argentina lacked a tradition of rule of law and local self-governance… so the constitution failed, leading to military dictatorships and economic chaos. For an abridged version, see http://www.seminariomartinezmarina.com/ojs/index.php/historiaconstitucional/article/view/274/241

Second, Hayek returns to an earlier theme (chapter 7) of the tensions between democracy and constitutionalism. The idea of constitutionalism is not to thwart democratic expression completely – that would, after all, be tyranny – but to temper it, and not allow majorities (or powerful minorities that can capture the political process) to violate the rights of everybody else. Hayek thus emphasizes (p. 180) that a constitution is not an absolute limitation on the popular will, but merely a "subordination of immediate objectives to long-term ones," to cool down passions and help guide us towards our goals. (Incidentally, economists will refer to this as dynamic inconsistency. Who is the real you? The you who sets the alarm clock an hour early to go running before classes? Or the you who hits the snooze button for an hour? A constitution can act as a "pre-commitment device," which forces us to move towards our long-term goals, such as peace, harmony, limited government, respect for rights, etc., even if we are temporarily drunk on power and enjoy a majority… a bit like placing the alarm clock on the other side of the room or posting a bond. In this similar vein, Ludwig von Mises was once asked about implementing his ideas, and what he would do, specifically, if he were dictator of the world. Without missing a beat, Mises replied: "I would abdicate.") Back to Hayek, the constitution allows for two things: (1) restrictions on a temporary majority (for obvious reasons); but also (2) acceptance of temporary majorities by everybody else, who can be secure that that majority is guided by general principle, and restricted by the constitution. In countries that lack a tradition of constitutionalism, there will be chaos and tyranny, as each democratic majority tries to squeeze what it can out of its tenure in office, because it knows the opposition will do the same.

I particularly like the phrasing of a constitution as "an appeal to the people drunk to the people sober" (p. 180). A constitution is like turning over the carkeys to the host before you start drinking from the punchbowl of political power.

Third, Hayek emphasizes the need for a twofold approach to constitutionalism: (1) a paper reminder (hence the importance of written constitutionalism, even if parchment cannot stop a column of tanks); and (2) the appropriate machinery (p. 182) of checks and balances – in the words of Federalist 51, "ambition must be made to counteract ambition." So I wonder… yes, on the one hand, it would be nice to get rid of the executive branch; on the other hand, getting read of the executive simply means more power in the hands of the legislature, and fewer checks on it. Instead, I'd like to see an executive that… executes laws, rather than writing them (by executive order or regulation).

There's also some interesting material on the 9th amendment and constitutional erosion, but I think I'll leave my comments at that for this week.