Constitutional Philosophy

Lecture 3Jon Roland

December 1, 2012

Law of Agency

Principal Selects agent To whom he delegates powers And issues instructions And holds accountable Corrects or removes if powers exceeded If not, becomes liable for actions of agent Arises from constitution of society

What is a Power?

Generally, an expenditure of scarce resource When on people, coercive So it is meaningful to distinguish between

“action” and “inaction” Nondelegation of power is a decision not to act “No decision” is a decision, but it can be not to

expend or coerce, and accept consequences A republican constitution presumes

nonauthority to act, right to such presumption

Trust

Agency with three actors:

1.Settlor (principal)

2.Trustee (agent)

3.Beneficiary Each is a distinct legal person Although they can be combined in one

individual Whose own property separate from trust assets And judgment must keep property separate

Corporation

For-profit or non-profit A kind of trust

1.With multiple settlors (incorporators)

2.Multiple trustees (directors)

3.And multiple beneficiaries (shareholders, members) With procedures for succession of each So that the corporation outlives its individuals But with its own assets, separate from actors A legal “person”, recognized by law, but not

“created” by it

Government is Corporation

Republic supposed to be a non-profit Monarchy, oligarchy tends to be for-profit Where some benefit at expense of others Using politics to bypass the marketplace Discussed in public choice theory Calling the oligarchs or their supporters “rent-

seekers” Only known solution is sortition (selection of

officials by lot)

Morality in Government

Discussed by Machiavelli Often not possible to reconcile personal

morality with needs of government and society Sometimes must do evil to some to protect

others (beneficiaries of the trust) Or those in power Or their policies Which may be good policies, on the whole But conflicts in interpretation of powers

Easy: one principal, one agent

If the principal and agent are each one individual, disputes on interpretation easy

The principal decides, and instructs, and can change the power from one day to the next

If the agent disagrees, he can resign Or the principal can fire agent, get another Main issues may come if agent owed money for

his actions, or is penalized for his actions If unauthorized, principal doesn't have to pay

him

Multiple Principals?

May disagree on interpretation of powers Even if they agree on structure, procedure Or trust one another Because successors may not understand Or comply if there are ambiguities But substantial consensus required on scope of

powers delegated So defaults to breadth of power on which all

but a few can agree

Decision Rules

On less important matters, simple majority vote On more important, like scope of powers, needs

supermajority or near consensus Majorities in 9 states ratified But supermajority supported strict construction

of powers This reflected in amendment rules:

1.2/3 of people though their representatives, plus

2.Majorities in 3/4 of the states

“Incidental” Powers

Earlier doctrine was power to be literally and strictly interpreted: Potestas stricte interpretatur

By 1776 Tory English doctrine allowed for delegated power to imply “incidental” powers

Necessary and Proper Clause of U.S. Constitution intended to delegate incidental powers

But that still left disagreement on the boundaries of what is “incidental”

Common Law Split

Most common law precedents in English courts But colonial courts began to diverge from

English precedents This most notable in Zenger Trial (1735) And recognition in colonial courts of colonists

having “rights of Englishmen” Whereas English courts often did not recognize

colonial rights of Englishmen

Pre-1776 Authorities

Fall mainly into two camps, not just one Tories favored broader interpretations of

powers Whigs favored stricter interpretation In court, Tories led by Lord Mansfield Whigs led by Lord Camden Revolutionary Americans were mostly Whigs Constitution written as Whig model

Commentators

Tory commentator William Blackstone (1766) Whigs represented by Edward Coke (1628) But Blackstone more recent, accessible England trended Tory, leading to abuses that

provoked American Revolution So U.S. was reaction to Tory interpretation But Tory thought carried by Hamilton, Marshall While Whig thought by Jefferson, Madison Which should be given greater weight?

Strict or Broad?

When principals disagree on scope of delegated authority, may ignore small minority, unless it can prevail in court

But may not ignore substantial minority, say more than 1/3 of the people or majorities in more than 1/4 of the states

From our rule, constitutional powers must be interpreted no more broadly than 1/3 of the people, or majorities in more than 1/4 of the states, in 1787, would tolerate

Deviation from this rule can bring civil conflict

Records of Ratification

Incomplete, but most states demanded and proposed amendments

Which were boiled down into the Bill of Rights With most lumped into the Ninth and Tenth No vote of people taken on how to interpret

each provision But we do have records of the public debate,

which show a strong demand for strict construction of powers, broad for rights

Ratification and Aftermath

Enough insisted on Bill of Rights that there would have been no ratification without the promise of it

Federalists did not just “win” ratification debates Proponents won ratification, but skeptics won

on interpretation Debate continued: Hamilton v. Jefferson Culminated in Election of 1800 And continues to this day: Statists v. originalists

Republic not Majoritarian

Can't protect rights if too many decisions made by simple majorities

Or worse, by pluralities of those voting Majorities can be constructed of rent-seekers Get tyranny of the majority So well-designed constitution provides for

blocking actions by minorities Until consensus can be developed Sometimes inaction is better

Republic presumes marketplace

But free market metastable, with three threats:

1.Unchecked government

2.Unchecked speculative investment

3.War or civil conflict Requires constitutional devotion to restrain

government and money Only way so far found to restrain speculation is

shmita Seven-year reboot cycle (production, investment) But shmita requires common government or religion

Causes of Dysfunction

Mistakes in original Constitution Omissions in original Constitution Ambiguities in original Constitution Loss of devotion to Constitution Loss of understanding of Constitution Reliance interests supporting noncompliance Unmanageably large and complex government Unmanageable problems

Remedies

Amendments Statutes Elections Appointments Court decisions Juries Public education Organizing public pressure Leadership

Civic Virtue Decline

People too prosperous, complacent People distracted by making a living People distracted by entertainments Don't motivate children to become educated Education that neglects civics, retards maturation Loss of community organizing Fragmentation of families Culture of deception

Poison Pill Proposals

Reformers led astray by clever proposals that won't work or will make things even worse.

People too willing to leave details to others, many of whom are not really on their side.

One form of this are “patriot myths” about law, although elites have their own myths.

Without investing in legal self-education, people don't know whom to believe.

Poison pills often absorb reformer resources, disappoint, and cause them to drop out.

Constitutional Apostasy

Constitution not perfect. Was intended to be amended more than it has been. But amendment difficult. So too many just drifted away from original

understanding in their practices. And pretended the Constitution supports them. But that pretense is becoming unsustainable. Most reliance interests no longer pretend to be

compatible with original understanding

Inconsistent Practices

When lose tether to Constitution, practices can become inconsistent, with the Constitution, and with each other.

The Rule of Law does not permit contradictions. Allowing one contradiction allows them all. And decisions become politics rather than law. But politics requires some rules to avoid anarchy. So we must find and resolve the contradictions. Which will involve rediscovery of original meaning.

Reliance Interests

Called “rent-seekers” by economists. Examined in public choice theory. Some discover they can make more money through

political process than in the market. Just as they can by speculating in financial

instruments instead of making things. The result is bubble of government and the financial

sector. Bubbles burst, and this one can bring starvation.

Are the preppers right?

About economic collapse, yes. But preparing for that requires places in the country. And substantial resources. Most can prepare for a few weeks, but need to

prepare for years. And form communities for mutual defense. No good solution for small groups. Even elites in bunkers probably can't hold out long

enough.

But after the fall?

If we don't to turn to fascism, preparation needs to be for coming out on the other side of the Great Unraveling.

That means a constitutional order, not strongmen. The Constitution we have is okay with some

clarifications. But we are going to need to rebuild devotion to it

from the bottom up. And prepare the people to carry it out.

End of Lecture