How to Cast Washington's Ring into Mount Doom
In a recent comment thread Aretae proposes a revised federal constitution that would provide a better bulwark against federal encroachment of state's rights. I agree with the goal of devolution. But I think Aretae's plan just throws the ring into the bottom of the river. I aim for Mount Doom.
The problem is that Aretae leaves federal power in the hands of those who wish to expand federal power. He just tries to tie their hands to prevent them from doing anything. He does so by repealing the 17th amendment, rephrasing the commerce clause, requiring a balanced budget, and limiting laws to a single page.
I don't think this will hold up. A popularly elected House and President still a huge incentive for a scholar caste, interest groups, and demagogues to decipher the public into granting the federal government more power. The average voter still has the incentive to support tax and spend schemes that transfer money from the rich to themselves. Judges will reinterpret the "living" constitution to justify new actions. If judges can reinterpret the commerce clause to justify controlling elementary schools, then they can reinterpret anything to say anything. Some justices even go so far grabbing the mantle of executive power. Check out this description of Israeli justice Aharon Barak.
Under Aretae's system it would only be a few years until laws are passed with a 1,000 lines that then authorize an agency to write 100,000 lines of regs. Washington's accounting is already so fudged that a balanced budget amendment will spring a hundred leaks. There are infinite opportunities for recognizing fake revenue or profits.
The original constitution lasted for ~120 years before succumbing to the FDR coup. But remember this was best case. Most copies of the British and/or American political system have done much worse, the worst cases like the Congo lasting no more than a day.
The factors that made the constitution last for 120 years are no longer in play. The voters are no longer libertarian. There is no frontier. No state militias. Powerful interest groups and parties are now well organized and embedded. Even conservative justices now think the commerce clause allows the Feds to regulate elementary education. If you could roll back the constitution to 1790, it would not be more than a decade before it returned to its current state of bloat.
So how do we actually cast Washington's ring into Mount Doom? Here is my answer, based on formalist principles:
Putting government control in the hands of those who wish to limit its power
A core formalist principle is that: Government acts in the interest of those who control it. If we want government to remain anti-federalist, we must put the reins of power in the hands of people who have the incentive to minimize federal power. The masses do not have such an incentive. Justices appointed by a popularly elected president do not have such an incentive. But the state governments do.
The aim of the Finbarrian Federal Constitution is to preserve the only two jobs the Federal government has done reasonably well (continental defense, and preventing wars between the states). Every other power gets delegated to the state level. Ideally existing states would be broken up into even smaller units, each no bigger than a metro-region.
a) Eliminate Congress entirely, both the House and Senate. Eliminate all the cabinet agencies, and all the administrations. Everything gets delegated to the states.
b) Keep only two branches of the government a) a supreme court b) a continental defense force.
c) The Continental Defense Force is managed by a board of trustees. The board can a) approve treaties b) appoint the commander in chief of the military c) carry out other general board duties (approving promotions to general, approving major purchases, etc). The board has no general legislative powers. It cannot regulate interstate commerce, much less education.
d) Taxes are voted on via the ancient principle: "No representation without taxation". Any new tax, or tax increase, is voted on by the states. Each state's vote is weighted by the amount of tax it will pay. States that do not pay the tax thus get no vote.
e) The supreme court is appointed by the states. Any state can nominate a justice, and then the state governments vote on the choices. The states votes are weighted by population. Nine justices sit on the court. Their tenure lasts 15 years, at which point they receive a life pension.
Once again, there is no power of federal legislation. States must make their own free trade agreements with each other. If Cleveland is polluting Lake Erie and dropping acid rain on New York, then New York brings a suit in the Supreme Court. The Supreme Court makes a decision and assigns damages to Cleveland. The government of Cleveland pays, and it is up to Cleveland to regulate its own factories to prevent further fines.
Since the court and board of trustee are appointed directly by the states, there is zero incentive to appoint a justice or a trustee who will reinterpret the constitution or encroach state sovereignty. Control of Federal government is placed directly in the hands of those who wish to limit Federal power.
Aligning physical power with formal power
There is a second key principle of formalism that needs to be observed: Formal power should be aligned with physical power
In law, Britain had the power to tax American colonies. But it did not have the armies present to enforce the law. The disparity between formal power and actual power was unstable and ended in war.
The most basic way of aligning actual power with formal power is to a) write up a formal charter that is largely acceptable to the military b) make the military swear an oath to uphold that charter c) make key controllers of the charter approve all promotions in the army, so that the entire command and control hierarchy is filled with faithful adherents to the charter.
If you want to make the alignment even more powerful, the charter could stipulate the continental defense force be not allowed to have an army on the continent itself. The defense force would have a navy, nuclear missiles, cruise missiles, and an air force. But each state would have its own ground forces and fighters.
I'm not sure if the above is actually a good idea. On the plus side, it makes the federal government less likely to abuse the constitution. On the down side, it increases the chance of civil war.
Getting There
Obviously this plan is ridiculously unrealistic at this current juncture. But I always find it most useful (and entertaining) to come up with the best solution, and the work backwards to the most possible solution for the given circumstance. In a future post maybe I'll discuss how we can get Frodo going on his little journey.
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1 point by Devin Finbarr Jun 17Aretae- Moldbug once described "Formalism" as anarcho-capitalism where all the protection agencies controlled contiguous territories, rather than overlapping territories. My main differences with the "competitive government" libertarian is: a) I think an anti-democracy agenda is essential for competitive government to work. b) I think that an anti-democracy agenda is worth pursuing even in a world with 190 countries. So basically, competitive government is great, but it is neither necessary nor sufficient for good government. A government designed along formalist principles is both necessary and sufficient for good government. Adding competitive government to a formalist government will make it even better. I think you could defend the continent just with ground troops + subs + nukes + cruise missiles. But it's hard to make any sort of constitutional limit to weaponry, because you don't know how technology will change. Nor is there any fool proof way to select controllers who have no incentive to invade other countries. It's really up to say, China, to incentivize the U.S. not to invade China. |
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1 point by Foseti Jun 17I'm looking forward to the follow-up posts. |
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1 point by nick Jun 28Great stuff form Aretae and Devin as usual. Some responses: "If judges can reinterpret the commerce clause to justify controlling elementary schools, then they can reinterpret anything to say anything. " This is what legal positivists (the enemies of legal formalists) like to argue. They observe, correctly, that law always evolves, and then conclude, quite incorrectly, that law can only be arbitrary exercise of power. It's a bit like arguing that since continents move, we therefore have no stable ground to stand on. Deterioration of the Commerce Clause took about 150 years (from the ratification to Wickard vs. Fillburn, with plenty of intermediate stages between), which means the vast majority of lawyers and judges had a shared idea of what the Commerce Clause meant at any given time, just as we can normally think that we walk on stationary ground. And that's probably the clause that has changed meaning most quickly besides the 14th Amendment. Not that I approve in the case of the Commerce Clauses of the direction or pace in which this continent moved, nor that there were no Commerce Clause earthquakes like Wickard v. Fillburn, just pointing out it doesn't mean we're living in an unending earthquake. As for your proposed constitution, I think it's pretty good. Though all these radical suggestions about the U.S. are impractical insofar as Feds have no reason to give up their power like that, and there are plenty of parties even outside the fed bureaucracy who fight for centralization for various reasons, for example business likes legal uniformity as it reduces complexity. Far better to make suggestions for the EU which is far less stable, or for new polities such as proposed "charter cities". For such purposes Devin's proposals are good although they need to address the strong need for legal uniformity in substantive commercial and environmental law. Perhaps UCC-style standards committees, ratified by state legislatures, is the best way forward for currently federal areas such as bankruptcy, IP, and environmental laws. With no federal enforcers, treaties between states will only be quasi-law, abrogated when states find them inconvenient, like international law. I quite like the idea of states appointing federal justices, although I think they should serve for life (to minimize political fads), and they should be physical separate from the Continental Forces or Board, for example they should be disallowed from communicating with or residing in the same city or county with any of the said Board or high officers of said forces. This avoids a tribalist sense that they are part of a federal government which makes them sympathize with the federal government, a big flaw of having a Supreme Court that is considered part of the federal government and have neighbors who are Congresscritters, generals, and bureaucrats. Anything resembling a capital city should be abolished. Indeed, it might be a great idea to require justices to reside in their home state and use phone and Internet to communicate each other rather than physically meeting, so that they each retain their distinctive local rather than national social networks and loyalties. I'd also have a second court, somehow selected independently of states (some combination of direct vote based on taxes paid, lottery, involvement of the Defense Board, involvement of bar associations, and/or selection by current sitting justices), with jurisdiction over state constitutionals. This solves the same kind of problem at the state level (i.e., the problem that judges under current constitutions are typically judges in their own cases, or least in the cases of a group or social network they are a part of). We should be as wary of state and local sovereignty as we are of federal sovereignty. BTW in case people are no reading comments on posts from mid-June I left a comment on the "Germano-Celtic" vs. "Roman" issue: http://intellectual-detox.com/were-germanic-tribes-egalitarian/Great stuff form Aretae and Devin as usual. Some responses: "If judges can reinterpret the commerce clause to justify controlling elementary schools, then they can reinterpret anything to say anything. " This is what legal positivists (the enemies of legal formalists) like to argue. They observe, correctly, that law always evolves, and then conclude, quite incorrectly, that law can only be arbitrary exercise of power. It's a bit like arguing that since continents move, we therefore have no stable ground to stand on. Deterioration of the Commerce Clause took about 150 years (from the ratification to Wickard vs. Fillburn, with plenty of intermediate stages between), which means the vast majority of lawyers and judges had a shared idea of what the Commerce Clause meant at any given time, just as we can normally think that we walk on stationary ground. And that's probably the clause that has changed meaning most quickly besides the 14th Amendment. Not that I approve in the case of the Commerce Clauses of the direction or pace in which this continent moved, nor that there were no Commerce Clause earthquakes like Wickard v. Fillburn, just pointing out it doesn't mean we're living in an unending earthquake. As for your proposed constitution, I think it's pretty good. Though all these radical suggestions about the U.S. are impractical insofar as Feds have no reason to give up their power like that, and there are plenty of parties even outside the fed bureaucracy who fight for centralization for various reasons, for example business likes legal uniformity as it reduces complexity. Far better to make suggestions for the EU which is far less stable, or for new polities such as proposed "charter cities". For such purposes Devin's proposals are good although they need to address the strong need for legal uniformity in substantive commercial and environmental law. Perhaps UCC-style standards committees, ratified by state legislatures, is the best way forward for currently federal areas such as bankruptcy, IP, and environmental laws. With no federal enforcers, treaties between states will only be quasi-law, abrogated when states find them inconvenient, like international law. I quite like the idea of states appointing federal justices, although I think they should serve for life (to minimize political fads), and they should be physical separate from the Continental Forces or Board, for example they should be disallowed from communicating with or residing in the same city or county with any of the said Board or high officers of said forces. This avoids a tribalist sense that they are part of a federal government which makes them sympathize with the federal government, a big flaw of having a Supreme Court that is considered part of the federal government and have neighbors who are Congresscritters, generals, and bureaucrats. Anything resembling a capital city should be abolished. Indeed, it might be a great idea to require justices to reside in their home state and use phone and Internet to communicate each other rather than physically meeting, so that they each retain their distinctive local rather than national social networks and loyalties. I'd also have a second court, somehow selected independently of states (some combination of direct vote based on taxes paid, lottery, involvement of the Defense Board, involvement of bar associations, and/or selection by current sitting justices), with jurisdiction over state constitutionals. This solves the same kind of problem at the state level (i.e., the problem that judges under current constitutions are typically judges in their own cases, or least in the cases of a group or social network they are a part of). We should be as wary of state and local sovereignty as we are of federal sovereignty. BTW in case people are no reading comments on posts from mid-June I left a comment on the "Germano-Celtic" vs. "Roman" issue: http://intellectual-detox.com/were-germanic-tribes-egalitarian/ |
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1 point by nick Jun 28(the second half of the above is just a mistakenly pasted repeat, sorry about that). |
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1 point by Devin Finbarr Jul 02Thanks for stopping by my humble blog, Nick, always great to read your thoughts. Apologies for the problems with the commenting software. They observe, correctly, that law always evolves, and then conclude, quite incorrectly, that law can only be arbitrary exercise of power. I am more sanguine about written constitutions than moldbug. I agree with you that the written constitution at least partly retarded the growth of government interference in American life. But my point was that this moment, the constitution no longer places much meaningful limit on federal power. The Feds can regulate basically any aspect of our lives they choose without constraint. Also, I think that part of the reason why Federal government was constrained for 150 years was that political power still wrested in a) property owners and b) a plutocratic class that could buy off politicians. Both these classes prefer less government. Urbanism + women's suffrage made a quick end to limited government. I don't think the constitution was the main bulwark. With no federal enforcers, treaties between states will only be quasi-law, abrogated when states find them inconvenient, like international law. I was thinking that the supreme court would try cases between the states, including breach of treaty, or one state polluting the air or water of a second state. although I think they should serve for life (to minimize political fads), Well, as we're learning now, there should definitely be mandatory retirement age. The reason I wanted to keep it to 10 years, is that I don't want the judges to become a power unto themselves. They are supposed to be arbiters of disputes between the states. If they are life appointees, they might follow the path of the Israeli or U.S. justices and try and become rulers in their own rights. Then you essentially end up with a continental wide theocratic (or perhaps more precisely ideocratic) government, which is a quite bad failure state.
I'd also have a second court, somehow selected independently of states The government of each state is a separate issue I did not address, but I hope to in a future post.
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1 point by aretae Jun 17
As usual, your detailed proposals kick my detailed proposals' asses...but I'm surprised to see just how far our agreement goes. I swear your formalism is closer to an Anarcho-Capitalist ideal than most libertarians are.
I do worry that your CDF has incentives built-in to go Kick some asses somewhere, just because it can, and it's built to...and that's not a happy place for me. Also, I wonder whether an ultralight military + subs + nukes would be sufficient.