Monday, February 15, 2016

The Supreme Court and the Chains of the Constitution

Milton Freidman said:

"The ballot box produces conformity without unanimity; the marketplace, unanimity without conformity"- Free to Choose

and as Don Boudreaux writes:

"The dispersion of knowledge and experience is one of the most important reasons for relying on free markets. Politicians and bureaucrats, despite their pretenses, know next to nothing about the all-important details of the economic affairs that they regulate. This reality means that government regulation is the displacement of expertise by ignorance."

 All of the statements above are testaments for why democracy, if left unchecked, can be just as detrimental to a society as so called unrestrained or unregulated markets. Perhaps more so than the critics of capitalism would ever imagine or be willing to admit.

There is a lot of contention about whether we should nominate a new justice now, or wait until after the next election.  Much of this has to do with the fact that the supreme court has not played a very effective role acting as a brake slowing the pace of unrestrained democracy. The effect is that many micro level personal decisions in our lives are becoming subject to the votes, opinions and interpretations made by these justices. The stakes are high for a lot of reasons.

In Judicial Activism Reconsidered, Economist Thomas Sowell describes our Constitution:

“The federal Constitution is "the supreme law of the land," not because it is more moral than state constitutions or state or federal legislative enactments, but because it represents a larger and more enduring majority.107 Minorities receive their constitutional rights from that enduring majority to which transient majorities bow, not from whatever abstract moral rights are imagined to exist as a brooding omnipresence in the sky.”

Once we start making heroic ‘modern’ interpretations of words in the constitution like ‘general welfare’ or ‘regulate commerce,’ the constitution is weakened, and minorities are forced to give power over to whatever transient majority prevails at the time. The short term gain from being able to bypass the amendment process (which requires obtaining the consent of the governed) via the courts or legislative process comes at a long term cost to our liberty and national well being. Every step we take away from the limited role of government defined by the specifically enumerated powers of the Constitution, we concentrate more power and wealth in our central government. This increases the incentives for large corporations and special interests to influence our lawmakers, and provides the means for ever more concentration of power and transfer of power away from the people. This outcome is what game theorists refer to as a prisoner's dilemma, (a nash equilibrium) and the solution or means of escape was proposed by our founders: a binding Constitution that limits the power of all players.

“in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution” —Thomas Jefferson

We've broken the chains, and so these nominations have become a much bigger deal than they need be, or our founders envisioned them to be....and we will continue to send lawyers and lobbyists to Washington, offer up our candidates to the highest bidder, and freak out over court appointments all the while proposing band-aid fixes like campaign finance reform or new parliamentary rules and procedures around nomination processes. It's democracy out of control.

For some deeper dives into these issues see: Public Choice Theory for Agvocates

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