Thursday, May 8, 2014

Notes on Constitutional Amendment and the term Revolution

Just a quick note to myself for later -

I have put forth a hypothesis about constitutional amendment: namely, I have suggested that the constitution should be modernized because it is a late-18th century document that did not adequately address a number of matters (commerce and war powers most obviously). When you look at things like black-site torturing, they look like legal holes - like the constitutional version of an off-shore tax shelter, like a way to avoid the constitution. The same is true of private security firms working with agencies like the NSA - it appears they do not operate within the same constitutional parameters (if the operate with any parameters at all).

I have referred to such modernization as a revolution, but only in the sense that the creation of our Constitution in 1787 was a revolution. Thus, by revolution I do not mean what would normally be called a revolution. I am not referring to street demonstration, for example. I am simply advocating constitutional amendment, by a process that is wholly lawful and peaceful. If the change was significant, this would technically be considered a revolution (in precisely the way the creation of our constitution is referred to as a revolution, but only in that sense). If the constitution can be amended outside of Article V, dramatic change is possible WITHIN the law. This has real advantages - because it is lawful and peaceful, it is protected first amendment speech.

The primary points of reference for this hypothesis are twofold: First, Gene Sharp's stages of revolution suggest that the purpose of revolution is installing new laws (stage 3 is installing a constitution). The second point of reference is Professor Amar's famous law review article suggesting constitutional amendment outside of Article V.

I also wanted to note that scholars are not openly using the word oligarchy (a classic form of tyranny in basic political theory). Piketty claims we re drifting to oligarchy; scholars like Jeffrey Winters have argued we are already there (Mr. Winters identifies the United States as a civil oligarchy). Another interesting work is Hacker and Pierson's notion of legislative drift as if offers a good analogy to my thesis about the constitution; if legislation can become unsuited to modern society it would seem obvious that the constitution can as well. Certainly it should be at least considered whether limiting inequality constitutionally might be more effective than a legislative change to the tax code (which Mr. Piketty recommends).

The intellectual community seems poised for this issue. Piketty's work is taking America by storm (as it should in light of existing levels of inequality). Moreover, I'm encouraged that both economists and political scientists are at work on the issue. I believe Keynes was onto something when he said that ideas are what matters. If there is to be a change, I truly believe it will be an intellectual revolution - my hope is that this can be accomplished without and before any violence or use of unlawful tactics. If Professor Amar is correct, there really is a chance that it can. It's currently an unknown idea, but if it's a good one it will catch hold eventually. People are looking for something because the situation is getting so out of hand - at this point the intellectual dispute among intellectuals is whether we are an oligarchy or whether we are merely close to being an oligarchy (drifting towards oligarchy). Of course, some would say everything is just fine and that there is no amount of inequality that could be considered problematic; however, basic political theory and now economics suggests that we are (or soon will be) a form of tyranny and tyrannies fall quickly according to Aristotle. Thus, avoiding disruption (and the inevitable suffering attendant to disruption) means finding a lawful solution to this problem. Perhaps it could be legislative, regulatory (i.e. something other than constitutional), but certainly, while we are considering legal, peaceful remedies, the idea of constitutional amendment should be thoroughly explored. A distinguished Yale professor suggests it's possible and that it stands above the government. Certainly, that hypothesis is worth exploring before anything disruptive occurs (and political theory and history suggest it will occur and things certainly appear less stable than anyone should be comfortable with).

Burke is always reflexively hated by liberals (not surprising since he's considered the father of conservativism). However, I think he was right about the leveling effect of traditional revolution. That kind of instability is very costly and usually does not amount to progress in the end. But if you can legally, and without violence, go directly to constitutional amendment, that part of the Burkean challenge is solved. The other point Burke made (or has been interpreted to have made) is that rapid change (even by reform) is too disruptive. This point is well taken also. However, the possible way out of that trap is sophisticated planning. I think Naomi Klein was right to say we need to focus on planning. The most remarkable fact about what economists call The Great Compression is that inequality was significantly decreased without social disruption. If there can be change without violence or disruption and if it is perfectly lawful, that should - at the very least - be thoroughly explored in the first instance.

I was very influenced by hearing Gene Sharp on China. I think he is absolutely correct to say that one needs a complete strategy before tactics make any sense. You need to know the goal, then the strategy, then the tactics. If the goal is to install new laws (and I think Gene Sharp's work suggests that is the goal of all revolutions) then what is the best strategy and what are the tactics. Based on Professor Amar's work, the strategy can be wholly lawful and peaceful. There can be real change through constitutional amendment. If Professor Amar is correct, as citizens we can alter or abolish our constitution at any time by simple majority vote. Because the constitution is the supreme law of the land and the source of all authority in government, there is really nothing that could not be changed (which is why the end goal of revolution is to install new laws). It's the laws that control in the end and an eminent scholar has argued they can be changed without any violence, disruption or unlawfulness. Certainly that is a hypothesis that should be thoroughly explored and because it is merely constitutional amendment that is being advocated, it can be and should be discussed in the open. If advocating a lawful, peaceful constitutional amendment is not speech protected by the first amendment, it would be hard to know what is. There is no need to meet in secret or evade anything - the most interested ideas are coming from academia and are suggesting and advocating change that is wholly lawful. I certainly have not and will not ever advocate violence, illegality or disruption. We need to academics hard at work, not protestors. We need to discuss Professor Amar's thesis and its implications. We do not need and should not advocate for violence or disruption, especially if a lawful and peaceful solution is available - and Professor Amar has argued it is.

Friday, January 31, 2014

Our Constitution is Broken: Part I

I have put forth a fairly radical thesis: Namely, that our Constitution is broken and needs to be modernized. Not a small revision either; a pretty thorough modernization. Our Constitution - drafted in the late 18th century - reads a bit like the bible to me: Just as the bible reads like a bronze-age document; our Constitution reads like a pre-industrial, late 18th century document. They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated. 

But the problem with my broken-constitution theory is that it's just so hard to explain. I mean you kind of have to start at the beginning: What's the purpose of a constitution? How can you explain it's broken without showing that it's not supposed to produce a tyranny. And then you have to show we're a tyranny. And it goes from there.

I mean I guess the other approach is to show how, in particular, our Constitution isn't modernized. I've been thinking a lot about war powers. Our Constitution only considered two possible scenarios: civil war and attack by a state. And the rules for these two are different: You can suspend habeas corpus in the event of civil war. But what I've been thinking about today, is this: 1) Our Constitution covered foreign policy; and 2) our Constitution's foreign policy is isolationism. As soon as we - as a society - rejected isolationism, the Constitution has no rules. It's suppose to cover foreign policy, but it didn't anticipate an interventionist foreign policy. Thus, we have no constitutional checks on pretty much all of our wars and it shows. Like Vietnam being a police action and not a declared war - that looks like you have a hole in your Constitution. It looks like the war version of off-shore tax shelters. And we have lots of them: black-site torturing, getting corporations to do unconstitutional things, getting other nations to do unconstitutional things. As a lawyer, those look like legislative holes. They happen when situations change. It's hard to make a really tight law and no one has a crystal ball. We need to close all of those holes. We need rules for intervention; we need to get rid of these end runs through corporations and other nations. It's not just economic matters that need modernized.

I've been thinking a lot about the Greeks. You know, what was going on is that they had stumbled onto science. There were pre-Socratic philosophers (like Heraclitus) who were approaching things scientifically. It was just this amazing tool; this method of approaching problems. They had this method of coming up with good answers to problems. The capacity is part of human nature, but the method and the systematization of the method... well, it's hard to beat the Greeks. And why is that? I've always wondered that: Why, all of a sudden, do people make a bunch of progress on particular questions? And part must be the discovery of this very powerful method. But I think there's something else: I think there's a historical reason people start to look hard at particular questions. For example, the Copernican revolution: What was going on is that they were figuring out the laws of motion. And once you understand a bit about motion, the Ptolemaic system is clearly wrong. The Ptolemaic system shows a retrograde motion of Mars; Mars is going along in its orbit, reverses direction, then reverses direction again. And that just cannot happen once they knew about motion. They KNEW it was wrong. So, all of a sudden, they're thinking about that question. Copernicus makes the first big breakthrough: Perhaps the Earth and planets revolve around the Sun? But he had circular orbits and it didn't work as well as the Ptolemaic system (as a practical matter). So, why not discard it then? It doesn't work as well. Well, because they KNEW the Ptolemaic system was wrong. Then, Keplar figured out eliptical orbits and it was over for the Ptolemaic system. What focused the Greeks?

I think - like me - they saw their society (Athens) was going down. Both Socrates and Plato were pretty obsessed with the question of justice. Well, what is justice? Lots of historical runs at that question (and with different results). But I think we can think of it more practically (perhaps sometimes working from a process of elimination of what justice is not). The law - my profession - must be very practical in this way. I mean there's an actual dispute and someone is claiming an injustice. You have to solve it. Now. It's like an empirical study of justice, where you build up a system of justice dispute by dispute. Anyway, I think if we look at Socrates more practically, what he saw was this: We're making bad decisions and because we're making bad decisions we're going to go down. 

It gets interesting here because the question of The Republic is: What is Justice? There are several possible answers given and quickly rejected, but then Thrasymachus gives an answer at the end of Book I and it takes up the rest of the book. It's clearly the crux of the problem. Thrasymachus says: "Justice is nothing but the advantage of the stronger." Justice equals power; politics is power; politics is might makes right. This is what Socrates and Plato are squaring up to. Plato's answer: Power shouldn't make the decisions, philosophy should make the decisions because honestly, power makes really bad decisions: "Yes, my plan for us as a collective unit is that 100 people make more money than a human can ever use, a bunch of people starve, there are many wars and much oppression and we ruin the ecosystem." It's the worst plan in history: Anyway, I digress. 

The thing is, they're going hard at this problem, which is: How do you get power our of the decision-making process. Power makes all of the bad plans of history. We want to use this method - philosophy - to make plans. It's a really good problem-solving method; we're going to get better plans. I think that's the bottom-line message of The Republic. They were also realizing, there are all kinds of power. Everyone knows about physical force, but there's: wealth; religion (authority from God); psychological manipulation (sophistry, but also fear, self-interest... it's a whole can of worms); information (necessary tool of science); sexual power (physical attractiveness influences the majority), etc. Well, I think what Plato tells us is that the enemy of the polis is power and getting power to out of the decision-making process is no easy task. So, that's pretty good progress they're making on the issue here. If you make bad plans, you're going down; power makes bad plans; philosophy (science) is a really good tool for making good plans (no guarantees, but it's your best shot). Therefore, we need to come up with a system that let's decisions for the collective be made rationally and keeps power out of the decision-making process. That's the purpose of a constitution. That's what it's really trying to do. That's it's nature. It's trying to solve the problem of power.

Athens has a situation a lot like us. The democracy controls the police power: Thus, no danger of having that power muck things up. And that's an important clue, by the way: putting important powers in the hands of the collective is a way to stop power from mucking things up so often. So ok, Athens was not making bad plans because people were showing up at the assembly with a weapon. Athens was making bad plans because wealthy citizens (claiming to be descended from the Gods) were using this tool of science to manipulate people for their own gain. And it was sophisticated. People made good livings training people how to make the weaker argument seem stronger. Think of that: Training people to get the collective unit to make bad decisions. It's an existential threat to the life of the collective. It's really shitty. I mean that's why the question is so pressing: Athens is going down. And these inventors of this great method discovered a heart-breaking fact: Like all tools, the tool of science can be used for good or evil. Power doesn't use the tool of science well. Plato wanted to create a society run by philosopher rulers. Big problems with this, but the idea is right: We want to find a way to make rational decisions and not bad decisions. It's interesting where Plato's theory falls apart actually. He concedes that those inclined to philosophy, don't want to rule; they want to do philosophy. I think this is true, but potentially beneficial. It means that the centers of power generally don't have the best philosophers, which in a mixed government can be a good thing: you can make science an institution of the people and wall it off from centers of power (police power and wealth). I mean, not totally, they need people trained in science. But the best people can be walled off. The professors, the people who do it for a living. That actually seems a good to me because putting the important powers into the hands of the collective is a good way to keep power from undermining the process so often. I think that's why Aaron Swartz was so important. I think he was bringing us an important message about that. Science must be in the hands of the people; it must belong to the people. And Julian Assange brings the other side of that coin: you can't make good decisions without accurate information; the people need access to science and good information. Science should be in the hands of the people and walled off from power; power should be as transparent as possible. 

Anyway, Plato really wants to train people in this method and that's good progress too. Give this training to everyone, for free. Give everyone access to it. So again, more good progress. I mean Socrates and Plato really run at the problem hard. Reading Plato's dialogues is like watching a great chess master. He sees every problem, every subtlety.. it's impressive. And I think he makes lots of progress. But he never cracks it. Towards the end of his life, he writes The Laws and it's just this awful, authoritarian system. He realized something else: Not that many people are philosophical; in fact, most aren't. So, how does a democracy make good plans? He concludes they can't and ultimately, just gives over to really brutal laws. It's pretty sad, actually. The Republic is really beautiful. He was trying to create something good: Just more problems than could be solved in a lifetime. This brings us to Aristotle.

Aristotle's approach is different than Plato's. When he's trying to understand constitutions, he reviews 150 of them and looks at what they do and how well they worked. His approach to the problem is historical; it's empirical. It's a lot like my tradition (the common law). The common law looks at how people approached a problem in the past, tries to figure out why it doesn't seem to be working and tries to fix it well enough to solve the particular problem before them. This is pretty achingly slow. Sometimes it takes several hundred years to fix a problem. And, the thing is, if you don't fix it, it keeps cropping up. When I studied the Takings Clause (literally from the creation of the power of eminent domain), you could see this. Regulatory takings really stumped them. Several rules were tried, but they failed and problems kept cropping up. At one point, the Court throws it's hands in the air and just adopts a fact-driven test. Fact-driven tests are a sign that they haven't cracked a problem. It just basically says: we'll just let the judge hear the story and do what she thinks is fair. It's not a good solution. And, of course, the problem keeps coming up. Well, I think they're getting onto a good test recently. But all of that took like 100 years. In England, getting ordinary takings sorted out, it took several hundred years and several really bloody rebellions. Lots of people died to get property out of the hands of power. And actually, they realized something really interesting: The state needs property for some reasons that are good. Thus, they hammered out a rule where the state could seize property for public use (building roads), but had to provide just compensation. It's not taking property out of the hands of power; it's hobbling power; it's giving power limited, restricted access. 

The common law is great for this; better than philosophy, I think. Because as many problems as Plato could foresee, it doesn't add up to confronting a problem in real life over hundreds of years. I really think this is true of the common law: Even when it's wrong, they've got hold of something important. They're wrestling with something significant. And they make lots of progress. Like the whole Trial by Combat or Trial by Ordeal thing? That gets a really bad rap, but look what comes out of it. There's this idea that an accusation might not be true; that's presumption of innocence. There's also the idea that we need some procedure for determining guilt or innocence; that's due process. So, pretty good really. And besides, our justice system is total crap. I've sometimes mused that we should give those inner city kids the option of trial by combat. I can't say we'd get less just results. Anyway, long digression... back to Aristotle.

Aristotle is considering these same problems and he comes up with something brilliant. Just accept that most people aren't philosophical. But your problem is with shutting down power; create procedures to do that. Looking at this problem of money-backed sophists, one answer is cut off the money. Don't let them take such sophisticated runs at this; limit inequality constitutionally. Don't give people the tool they can use to undermine the whole decision-making process. That's proceduralism. Proceduralism doesn't try to change human nature or to eliminate power; it tries to yoke power and keep it directed towards positive purposes and barricade it's destructive tendencies. That's important progress too. Though no easy task. Power seekers are serious; they run at the constitution and laws constantly. Power seekers really focus. Also, there's a whole cultural amnesia thing. 

Anyway, Aristotle figures out a bunch more, but this is already a book. So, I'll pick this up later. But you know, it's a long story. It's as old as philosophy, but really, as old as human history. How do we make good decisions for the collective? How do we have a just society? It's every myth, every religion, every society in the history of time. But the Greeks are the ones who start to run at it scientifically. And the British come up with the other powerful tool: Deal with it one dispute at a time and write it down. The common law is amazing. It's this history of confrontation with actual, concrete problems of justice, with solutions that can evolve. They worked out a lot of really good solutions. A lot of important pieces of the puzzle come from common law. A problem just keeps coming up until it's fixed. And then, someone cracks it and it goes away. The Takings Clause - the basic solution - never gets challenged anymore. Regulatory takings was tricky, but the Takings Clause itself just works pretty darn well. It took forever, but they wrote it all down. We get the benefit of that. It's a natural history of justice. I think philosophers ignore it way too often.

But, you can see, it's not an easy thing to explain. What is a constitution? Why is our broken, precisely? Why should it be updated? What needs to be updated? Well, where to start? Though I suppose I've just started. More on this later.

Saturday, January 25, 2014

STRATEGY, DEMOCRACY AND ELITISM: CONSTITUTIONAL AND POLICY CONSIDERATIONS

When discussing the notion that our Constitution needs to be modernized, I'm generally met with two types of objections. The first objection, at bottom, is that our Constitution cannot be changed because it's a sacred, unalterable holy text. The second objection is that our Constitution is elitist and anti-democratic and therefore, should be completely abandoned. I have addressed the first objection elsewhere, but little has to be said: It is not, in the end, a serious objection. The second objection, however, is a serious objection that must be addressed.

I have previously argued in favor of the possibility of a "tyranny of the majority" against minority groups. My argument is that economically stressed populations have historically been susceptible to demagogues offering a strategy of what I have termed majoritarian apartheid (anti-semitism in Nazi Germany; racism in the South).

However, there is another distinct issue with respect to democracy and elitism. Our Founding Fathers (perhaps Madison, in particular) thought that trained elites would come up with better political solutions than the hoi poloi. Various structural solutions were employed to ensure that the better educated (which for Madison also meant wealthier) citizens would have more influence. Thus, our democracy is indirect rather than direct, the Senate has more power, and so on. This concept is rarely unpacked; it is generally accepted as obviously true or dismissed as obviously false (and irredeemably elitist). I think once you start to unpack and examine this idea, it's clear that it's very complex.

The first step is to understand how we strategize. The process of strategizing is as follows: There is the situation as it happens to currently be (call this A); there is the goal (call this B); and tactics are how one gets from A to B. So, there are three components: where you are; where you're going; and how you get there. We can come up with bad solutions when things go wrong at any of these junctures.

Before I get to the elitism issue, it is worth examining the issue of goals and the constitutional solution to goals that are contrary to civic virtue.

GOALS CONTRARY TO CIVIC VIRTUE

The goal of corporations is not the common good, but rather is maximizing profits (this is required by law, by the way). So, let's examine the example of an HIV-infected blood supply. At some point, the situation faced by companies selling blood products was that they knew the blood supply was infected, there was an accurate test and some countries had passed regulations prohibiting sale of infected blood while other countries had not. The companies' tactic was to sell the HIV-infected blood to those countries that had not yet passed regulations requiring testing. The attorneys who represented hemophiliac victims reviewed the internal documents and there was never a consideration of human toll. There was the situation, there was the goal of maximizing profits and the tactics were logical in light of the goal.

So, is profit motive always bad? Is it always contrary to the common good? Does it always produce these results? Is it true that power always corrupts? Let's consider another example, also related to the AIDS epidemic.

The situation was that the government's approach to AIDS was to focus on finding a vaccine. Those infected, however, desperately needed treatment and were having no success (or very little success) getting the government to devote resources to treatment. The AIDS activists recognized that the pharmaceutical companies would profit from drugs that could treat the symptoms of the disease. The AIDS activists were able to work with pharmaceutical companies and, in fact, it was the pharmaceutical companies who ultimately discovered an effective treatment. The pharmaceutical companies later let people die and only cared about enforcing patents, but initially, their profit motive did produce something that was a benefit to humanity; many lives have been saved by this treatment.

So, one approach is to try to educate people in civic virtue so that they are not vicious. Madison wasn't against education certainly, but he thought you'd never get rid of self-interest (faction) entirely. Therefore, he favored structural solutions: first, transparency so that the public could serve as a check on corruption and second, constitutional prohibitions (what Madison referred to in Federalist No. 51 as auxiliary precautions).

Without getting too far into this, one can think of several structural possibilities: 1) removing the legal holding that corporations are only to maximize profit; 2) assess damages sufficient to make such decisions not profitable; 3) hold corporate officers criminally liable; 4) hold shareholders liable; 5) changing patent laws; etc. I have argued elsewhere that much of this would have to be constitutional (and not legislative or regulatory) because legislation and regulations are too easy to unwind. Further, I have argued that one should constitutionally limit inequality and constitutionally limit the size of corporations (anti-trust measures) so that they do not have the power to overwhelm the legal system and thwart all of the measures designed to hold them accountable. This is a classic Madisonian solution: Keep factions weak enough to control, but strong enough to function. When the United States government cannot successfully litigate against Microsoft, there's a problem. The strategy is, therefore, twofold: In the first instance limit size (of individuals and corporations) so that they can be controlled; then, review - one by one - their negative effects and prohibit them (constitutionally if necessary).

Moving on from goals to examine other portions of the strategizing process, we can begin to unpack some of the problems of elitism. As with profit-motive, elitism can be both good and bad. As always, our goal constitutionally, is to keep the good and eliminate the bad.

UNDERSTANDING THE SITUATION: TOP-DOWN VS. BOTTOM-UP

It may be that all humans are prone to hubris, but elites seem particularly vulnerable to this vice. According to Thucydides, hubris was Athens undoing.

Economists judged poverty based solely on income. Even seemingly well meaning economists would claim that sweat shops were an improvement in some situations. This person was making $1 per day and now they're making $2 per day. Well, the problem with this, as the economist Amartya Sen recognized, is that income is not a good measure of well-being. There were many agricultural communities who had very little income (and thus, from the perspective of an economist appeared impoverished) who were actually caring for their populations quite well. Everyone had food, clothing and shelter and no one had to work that hard. The people were happy and flourishing, but on paper, they appeared impoverished. According to economists, these perfectly happy people would be better off working in a sweat shop.

This is a very serious problem with elites. They assume they know more and fail to examine the situation. They don't even bother to look. These agricultural villages many have been helped with preventable diseases, but lack of income was not their problem. So, the tactics were bad - tragic, in fact - because elites did not accurately understand the situation. Amartya Sen created the Human Development Index as a mechanism to provide a more accurate measure of well being. Income and GDP growth have proven to be terrible measures of well being. However, most of the economics profession still uses these blunt (and tragically misleading) measures. Joseph Stiglitz whistleblowing with respect to the World Bank and IMF as well as Naomi Klein's Shock Doctrine also suggest that this "blindness" can be self-serving.

However, let's consider another example of failing to understand the situation. The Dust Bowl residents really had no chance of accurately understanding the situation - they were just hoping for rain. Twenty-five percent of them were forced to flee. This complex ecological problem wasn't easy for scientists to figure out. FDR had his Secretary of Agriculture study it, he was able to understand it and the government started taking measures to remedy the problem. In the meantime, the government provided food relief and job programs.

Those who assert that we should have small government or who mistrust all power or all elites have argued against federal disaster relief (Ron Paul explicitly made such an argument and he does so from an ideology that distrusts all power and denies the possibility of legitimate government). But there are clearly problems of scale that can overwhelm communities. It is particularly important that we think carefully about this issue at this juncture because climate change assures that communities worldwide will be facing these types of problems.

Finally, let us consider a third example. I have experience working with local housing development. The process in the county I have experience with is as follows: The developer submits a plan that includes engineering reports, environmental impact reports, traffic impacts reports and so on. This plan is reviewed by trained planning officials and they obtain independent review of the reports. So, at this stage, there have been two phases of expert review and, in my experience, the assessments are generally not the same. Finally, the plan is submitted to the public and the public is permitted to comment. My experience is that the public often raises valid issues that were missed by both sets of experts. Perhaps an environmental group points out that a wildlife corridor is affected; perhaps local residents point out that a children's route to and from school wasn't considered; etc. Even well meaning experts who are trying to understand the situation have difficulty appreciating all of the issues. However, those directly affected or specially interested understand the impacts immediately. We can understand issues that effect us quite clearly, but most people have difficultly appreciating all of the impacts on others. Additionally, it's simply better to democratize the process. The more people trying to solve a problem, the more likely you will be to arrive at a good strategy.

So, the relationship between top-down (elite) versus bottom-up (democratic) solutions isn't clear cut. Certainly, it is best - when possible - to empower people to solve their own problems. Moreover, when problems are of a scale that outside help is needed, it's important to accurately assess the situation and to involve the community in that process. Nonetheless, it is clear that, in some instances, expertise and perhaps resources beyond what the community has access to is required. However, it is not only mistaken, but dangerous to believe that elites always arrive at better political solutions.

How are we to work this out constitutionally? One possibility is to favor local solutions to the extent possible, but to provide for federal disaster relief for ecological, natural or economic disasters. To remedy top-down problems, install mechanisms to ensure that those providing disaster relief have considered and are sensitive to local input and concern. Finally, make sure assessments and plans are publicly available, that local comment is published and provide for independent review as well as accountability.

Economic Disasters

With respect to economic disasters, I have in mind two things.

First, economic crashes: No country facing a "liquidity trap" economic crash has been able to politically confront it, even when they know what to do. Iceland likely comes the closest to successfully confronting a crash. The causes of this appear to by multifactorial: About half of our economics profession apparently never learned Keynes so, there's a problem of cultural amnesia; wealthy interests like high unemployment; and borrowing and spending massive sums of money is a tough sell to the public. However, one could constitutionally mandate stimulus, jobs programs and debt relief necessary to restore full employment in the event of "liquidity trap" conditions which would make it so that you didn't have to get political consensus in order to confront this emergency situation. It's a disaster that unfolds very slowly, which makes it difficult to make good decisions.

There are at least two other issues here (and this is more of a note to myself): bank crashes (having to decide whether to bail them out on the spot is not a good situation for the public; some general principles regarding how these events are and are not to be handled might be appropriate) and debt levels (according to the economist Hyman Minsky there is an issue of cultural amnesia with respect to debt levels).

The second thing I have in mind with respect to economic disasters is local economic disasters, by which I mean economic events that put communities is a situation of local systemic failure. When a company leaves a company town, that town needs emergency assistance. The towns and cities impacted by NAFTA were given nothing. There was no plan in place. They need unemployment, food assistance and jobs programs until they are able to recover.






Thursday, January 23, 2014

The Legitimate State and the Illegitimate Surveillance State: A Response to Will Wilkinson

Will Wilkinson has recently entered into the debate spurred by the Sean Wilentz defense of the surveillance state (and attack on Greenwald, Assange and Snowden). Wilkinson correctly points out that the liberal attack of the security state is inherently illiberal and, he says, he blames libertarianism or, more accurately, liberals inability to answer a fundamental challenge that libertarianism poses. That fundamental challenge, according to Wilkinson, is the libertarian argument against the possibility of a legitimate government. He puts the central challenge as follows:
The existence of unacceptably illiberal practices of actual "liberal" states raises a perfectly good question about whether it is realistic to expect states to refrain from these practices, or whether there's something in the basic logic of the state that tends inevitably toward the abuse of power.
I wholeheartedly agree with Wilkinsons' premise that the security state (as well as the attack on Greenwald, Assange and Snowden) is blatantly illiberal and that the security state constitutes egregious abuse of power. However, I will take up the challenge of answering whether a legitimate state is possible.

What is a Legitimate State?

Basic political theory tells us that a legitimate state is one that governs for the benefit of the people, while an illegitimate government (a tyranny) is one that governs for the advantage of a powerful few. The symptoms of a tyranny are abandonment of the rule of law and use of extreme and cruel tactics against citizens as well as others. 

Wilkinson's challenge that there is something in the basic logic of the state that tends inevitably towards abuse of power is a familiar challenge that is rooted in the maxim that: "Power corrupts and absolute power corrupts absolutely." Perhaps its most well-known modern expression is the Iron Law of Oligarchy, which holds that: "Bureaucracy happens. If bureaucracy happens, power rises. Power corrupts." Understanding how a state could be legitimate depends in the first instance on confronting the claim that power corrupts.

Power as Corrupting vs. the Constitutional Theory of Power

Tacit in the concept of the corrupting nature of power is a theory of human nature. Specifically, people are basically good, but when they gain power, they become corrupt. People are not inherently corrupt (which explains why many people aren't corrupt); it is power that is corrupting (which explains why governments and the powerful so often are). I assume this is what Wilkinson means when he says that "there's something in the basic logic of the state that tends inevitably toward the abuse of power."

However, the Framers of our Constitution recognized something much more subtle: It is not power that corrupts, but rather, if the architecture of government (its constitution and laws) allows abuse of power, that system will, over time, select for those individuals who will abuse that power at the expense of the common good. So, the basic theory of human nature is that some people are good and some are not: we are varied. If the constitution and laws allow for corruption, that system will select for those people willing to corrupt that system. Those not willing to corrupt the system will not participate and will self-select out of the competition. In Darwinian terms, you have created an environment (constitution and laws) that, over time, selects for corrupt behavior. In order to illustrate this much more subtle theory of power, we can look to the example of the right of private property under the United States Constitution.

The Constitutional Theory of Power: The Case of the Right to Private Property

The Takings Clause of Fifth Amendment to the United States Constitution provides that private property cannot be taken for public use without just compensation. The history of the Takings Clause is instructive.

In 1066, William the Conqueror seized all of the lands in England creating the power of Eminent Domain. Those living on the land were permitted to stay on the land in exchange for rent to the King. This system worked fine under William the Conqueror, who did not exploit this power (showing that it is not power itself that corrupts). However, William the Conqueror’s successor - William Rufus - was not so principled and began leveraging this power to extort excessive rents and fill his own coffers. Over hundreds of years and many bloody rebellions, the people were able to establish a balance between the right of private property and the power of eminent domain. The people have the right of private property and the government may only take private property for public use and must provide just compensation. Thus, the legitimate use of the power of eminent domain is retained, but the destructive features are checked. The government can take property to build roads, but not to fill its coffers (the public use requirement). And when that property is taken for public use, the citizen must receive compensation (the just compensation requirement). Our Constitution reads like a laundry list of these types of power-balancing solutions, where the power is harnessed to its legitimate use and its abusive tendencies are eliminated. To take another example, the government is allowed the power of search and seizure (necessary to serve its legitimate police function), but it must establish probable cause and obtain a search warrant to curtail abuses against citizens.

Our Framers just did not have the type of simplistic view of power suggested by Wilentz on the one hand and Wilkinson (and libertarians) on the other. Wilentz' defense of the oppressive surveillance state (and attack of Greenwald, Snowden and Assange) subscribes to the false dichotomy that in order to have a government capable of serving the public good, we must accept an abusive surveillance state: To do otherwise would prove the point that all government is illegitimate and we'd be libertarians. Wilkinson, however, is a bit too self-congratulatory when he implies that the simplistic view that legitimate government is impossible is somehow less problematic. It is precisely this view that leads libertarians to claim that federal disaster relief is illegitimate or that those unable to afford health care should be left to die. And when they allow for such clearly legitimate government functions, what becomes of their thesis that legitimate government is impossible? At this stage, it appears each side's view is equally problematic, as each subscribes to opposite ends of an over-simplified and unworkable dichotomy, but the problems with the libertarian theory of power do not end there.

The Libertarian Theory of Power

In addition to the simplistic (and unworkable) notion that legitimate government is impossible, the libertarian theory of power suffers from a second weakness: Libertarians recognize only one power - the power of the state. Or, more specifically, the authority of the law backed by the police power. However, it is clear that there are three powers that were considered tyrannical by our Framers and a fourth that can act in service of tyranny or in service of the people.

The three tyrannical powers considered by our Founding Fathers are: the police power; the power of wealth and the power of the majority. The fourth power is the power of information, which can result in all manner of abuse, including: secrecy, compelled testimony and illegal search and seizure. Such abuses are thwarted by both prohibitions on the abusive behavior (no compelled testimony and no illegal search and seizure) as well as enhancing the rights of citizens (free press, the right of privacy, the right of assembly and free speech). Pursuant to this more sophisticated, constitutional view of power, it is perfectly consistent to claim the legitimacy of government and that the surveillance state is abusive.
  • Tyranny of the Majority
The most controversial aspect of our constitutional theory of power was set forth in Madison's discussion in Federalist No. 10 of a concept that is most commonly referred to as "tyranny of the majority" (though this term was not used by Madison). This is often considered to be a mere expression of elitism that, for some, supports the conclusion that our Constitution was motivated by the personal financial interests of our Founding Fathers. However, the notion that the concept of "tyranny of the majority" was an expression of elitism assumes that Madison was wrong and it is clear he was not. A majoritarian strategy of dispossessing a minority of "life, liberty or property" is a real threat, especially in the face of persistent economic crisis. Following World War I, the Allies imposed brutal austerity on the Germans. In Economic Consequences of the Peace, Keynes condemned the harsh terms and predicted a second world war. Keynes was correct: Hitler's strategy to end Germany's economic suffering was to dispossess the Jews of their "life, liberty and property" and redistribute the property to the "Aryan" Germans (a strategy that was economically successful). Any time a population faces persistent austerity, there is a danger of mass movements promoting this type of majoritarian apartheid (whether it's racist, anti-immigrant, religious, etc.). Thus, the danger of the "tyranny of the majority" is quite real and protection of minority rights is critical.
  • Oligarchy - the Power of Wealth
However, protecting minorities from majoritarian tyranny is not an invitation to oligarchy, which is the third form of tyrannical power recognized by our Founding Fathers. Jefferson specifically recognized overgrown wealth of an individual as a danger to the public good. However, common misconceptions of the nature of oligarchy as well as a novel form of oligarchy that exists today have obscured this form of tyranny not only from libertarian view (libertarians are completely blind to oligarchy), but from modern view generally.

Oligarchy and Elitism

The so-called Iron Law of Oligarchy posits:
Any large organization ... has to create a bureaucracy in order to maintain its efficiency as it becomes larger - many decisions have to be made daily that cannot be made by large numbers of disorganized people. For the organization to function effectively, centralization has to occur and power will end up in the hands of a few.
This accepts a common (but incorrect) definition of oligarchy as "rule by the few." As Jeffery A. Winters argues, this "elite theory" is a misunderstanding of oligarchy. Elites are not the problem (in fact, uncorrupted expertise is a benefit). The problem is the power of wealth and specifically, fortunes so vast that they can be leveraged to corrupt an entire political process - elections, the media, lobbying of representatives, revolving-door corruption of administrative agencies, paid scientific experts, drafting of legislation and so on. Thus, oligarchs are not elites and are not the result of ordinary (even fairly marked) inequality. Oligarchy results from vast concentration of wealth; the type of wealth that can thoroughly corrupt an entire political system.

Consider the following thought experiment. I grew up in a community protected by levees and the integrity of the levees was a constant concern. There was a group of  City employees who monitored the levees. Imagine the levee slumps and the community meets to discuss the matter. The City employees who monitor and are responsible to maintain the levees explain the situation and offer a repair recommendation that the community votes to accept. The levee is successfully repaired. The City employees' expertise gave them additional influence, but it is proper influence that inures to the benefit of the community. Uncorrupted expertise is not oligarchic; it is, in fact, entirely legitimate and beneficial.

Now imagine, on the other hand, that a group with extreme wealth had been permitted to make significant campaign contributions to many of the community's elected officials and owned all of the community's media and was able to hire sophisticated experts to argue that the entire levee needed to be replaced at the community's expense. Perhaps the local experts are smeared in the media and ultimately, the wealthy group is able to obtain a contract to rebuild the entire levee system (an action that is entirely unnecessary). The campaign contributions were secret. The corporate-owned media reports on allegations against the local experts and gives air time to the sophisticated experts and bribed community leaders. The oligarchs never personally appear and there are numerous front companies obscuring ownership both of the company that obtained the contract and the media ownership.

When people or groups are able to do this on the national level, the resulting government is an oligarchy. If those persons or groups are disarmed (meaning they do not have official control of the police power), it is a form of oligarchic government Winters has termed a "civil oligarchy."


Civil Oligarchy

Winters explains that civil oligarchy - our form of oligarchy - is relatively new. In the past, oligarchs existed, but they were armed (meaning they themselves possessed police power). This traditional form of armed oligarchy is what was known to and considered by our Founding Fathers (and indeed, if oligarchs had police power, they would be subject to significant constitutional limitations; under current judicial interpretation, oligarchs have the rights of citizens). Winters explains that in post-Renaissance Italian city-states, oligarchs came to be disarmed. Though it caused them great worry at the time, it did not prove a problem as civil oligarchs have consistently been able to corrupt governments to an extent that they can use the police and military power of the state for their own purposes (and, even better, they can do so at taxpayer expense). Libertarians utterly fail to appreciate the abusive potential of the power of wealth: It is a tyrannical force that is every bit as destructive of the body politic as abusive police power.

I have argued elsewhere that our pre-industrial Constitution should be modernized to confront this new form of oligarchy as well as other matters that could not have been foreseen (like treatment of internet communications), but that consideration is beyond the scope of this essay.

Constitutionally Checking Tyrannical Powers

Our Founding Fathers recognized that one cannot just limit tyrannical powers, the rights of the citizen must be strengthened so that the citizens can properly check tyrannical abuses and indeed, effectively govern (it is the people who are sovereigns of a democracy). There must be a free press so that citizens have accurate information; a citizenry without accurate information cannot make good decisions and therefore, cannot serve as a check on abuses of power or exercise their democratic responsibilities wisely. Further, the citizens must be able to assemble and must have the right of free speech so that they can come together to discuss and solve problems of common concern, even if their concern is abuse of power. Additionally, the citizens must be free from invasions of privacy and suspicion-less search and seizure so that they may not be spied on by tyrants seeking to maintain illegitimate power. These are the conditions of a democracy: All tyrannical powers must be fettered and harnessed to the public good, their abusive tendencies must be thwarted and the citizens must have the necessary tools to check tyrannical powers. It is a theory that is consistent both with the notion of legitimate government and with opposition to the abusive surveillance state.

This is the answer to what Wilkinson refers to as the "libertarian challenge." However, it is clear that it is not so much a challenge as the opposite side of a false dichotomy that simplistically assumes that government can never be, or must always be, legitimate.