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Democracy and Elitism


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They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated.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.

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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.

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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.

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The Stakes of the Austerity Debate

The Stakes of the Austerity Debate

Is Economics a Morality Play?


Those economists arguing for Keynesian stimulus policies are having a very hard time getting people on board. We've only been able to muster a half-measures stimulus plan and now we (and all of Europe) are on a course of pretty savage austerity plans, which are going to result in a lot of suffering and - as Keynes recognized - will end in violence if not solved (Keynes accurately predicted that austerity for Germany after WWI would lead to another world war).

Keynesian liquidity-trap policies prescribe massive state borrowing and spending. This is a tough sell. We're trained to see debt as dangerous. This is certainly true on a household level, but it seems there are plenty of macroeconomists who are debt worriers as well. The retort - which is insightful, but dangerously inaccurate - is that economics is not a morality play. In liquidity-trap conditions, virtue is vice and vice is virtue. This is insightful, but dangerously misleading. To understand why, you have to first understand Virtue Theory.

Virtues are Tactics

Virtue Theory, developed by the Greeks, is a theory that states that whether something is a virtue or vice depends on context: Specifically, it depends on what your situation is and what your goals are. Virtues are those tactics that help you achieve your goal in a given situation and vices are those tactics that hinder your progress towards that goal. Homer brings home this insight.

Homer's situation is that the Trojan War happened, which was definitely a big war by the standards of the day. So, the Greeks sail over to Troy, expecting to roll over the Trojans, and end up in a protracted battle. Their tactics get more sophisticated as the war goes on and they ultimately win the war with the Trojan-Horse tactic. However, the war is now over and people forget about the Trojan War. As an important side note, cultural amnesia is really common; the economist Hyman Minsky noticed this tendency of cultural amnesia with respect to debt. There is a societal tactic for dealing with cultural amnesia: You write the lessons into your myths or holy texts or, in our case, into a constitution. Putting such historical lessons into legislation or regulation does no good because they're too easily unwound; lessons prone to cultural amnesia must be contained in documents that are very difficult to revise, which explains the rules against alteration of holy texts (though even that happens - the Council of Nicaea, the King James Bible, etc.).

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Inequality as a Problem of Constitutional Law
We are a system that is no longer capable of self-correction. Any system - any organism - that is no longer capable of self-correction dies. - Jared Bernstein

The historian of science, Thomas Kuhn, set forth the process of scientific revolutions as follows: A paradigm shift (a revolution) creates a new paradigm. Over time, that paradigm develops anomalies. The theory is reformed to accommodate each anomaly. Eventually, the paradigm reaches a crisis, meaning it is no longer capable of reform. A new paradigm emerges which solves the anomalies. This is known as a paradigm shift or revolution. This is where I believe we are. Our current cultural, political and economic paradigm has reached a state of crisis and reform of the paradigm is no longer a viable option. We must have a completely new paradigm. My thesis is that what is required is a thorough modernization of our Constitution. And it appears this may be an easier task to accomplish that we might imagine.


With respect to our Constitution, my analysis seeks to restore the spirit of our Constitution, but suggests modernization to confront and fetter the power of global oligarchs and to confront technological change as well as emergent problems with war power. Ultimately, our Constitution appears like a great innovation that was never updated to confront global oligarchs and multi-national corporations - powers every bit as destructive as the unfettered power of the state. Senator Franken has suggested a constitutional amendment to the effect that "corporations are not people." This would certainly be helpful, but in my view, not even close to enough. Effectively restraining the negative effects of oligarchs and corporations, requires the kind of procedural “shock and awe” our Framers employed against the police power. This requires not only restraining the specific negative effects of such powers (all of them that can be identified), but of strengthening the rights and institutions of the people. With respect to our economic system, I believe what is required is to make it a political economy and not merely a stand-alone economic system. Currently, our economic theory operates without any stated goal other than GDP growth. We know that it is actually operating very efficiently to enrich the very wealthy, but even those who seek to reform it are consistently unable to connect economic arguments to a coherent political theory. At times John Rawls is called into service and at times Utilitarianism, but most often, no reason is given at all. I actually believe Keynes understood intuitively the political theory I’m advocating, but he never developed it as a political theory. My argument is that the political theory understood by Keynes is enshrined in our Constitution, but its purpose has been wholly undermined by circumstances not anticipated by our Founding Fathers.

The Purpose of Constitutions

A constitution has two purposes: First, it checks and balances power so as to create a government operating for the good of the people and not solely for the benefit of the few (tyranny). This requires a theory about human nature with respect to power and a theory of how to not only restrain that power, but to harness it for the public good. Second, a constitution necessarily embodies a theory of the purpose of government. I argue that our Constitution’s theory of the purpose of government is that the purpose of government is to provide the conditions necessary for human flourishing, which in our founding documents is defined as inalienable rights to “life, liberty and the pursuit of happiness.”

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Blog Archive


Blog archive 2014 (6)
Blog archive May (1)
Blog archive January (5)
Blog archive Our Constitution is Broken: Part I
Blog archive STRATEGY, DEMOCRACY AND ELITISM: CONSTITUTIONAL AN...
Blog archive The Legitimate State and the Illegitimate Surveill...
Blog archive The Stakes of the Austerity Debate
Blog archive Inequality as a Problem of Constitutional Law
Blog archive 2012 (129)
Blog archive 2011 (231)