Friday, November 25, 2005

Amendment? Nein Danke (Pt. III)

If term-limit- and balanced-budget-amendments won't do the trick with pork, what sort of amendment will? An amendment that explicitly bans pork. But any such amendment is going to have to define pork, and I doubt there's anyway to do so that isn't either 1) so general that it prohibits anything besides (maybe) military spending (which could also be pork), or 2) so precise that it's not difficult to get around the amendment's requirments and get back to porking the budget.

Actually, these complaints are true of any effort at legislative bans on pork. If the experience of campaign finance reform is any guide, anti-pork legislation would aim for #2 and have the predictable result in #2.

So an anti-pork amendment won't work. But forget efficacy for a moment: should there be an anti-pork amendment just in case we can figure out language to thread the needle and prohibit just wasteful spending (leaving aside the difficulty of defining "wasteful")? I don't think so. Just as voters have a right to elect legislators who will waste their money, elected legislators have the latitude to waste voters' money. Voters may then choose other legislators. [What if every candidate is seems to be the case now? Is there any choice?--ed. Sure there is. The choice is not to vote for a Democrat or Republican, get pissed/active and promote other candidates. Rim shot goes to the anonymous commenter who went on at length about how I must hate politics and activism because I think the New Haven Democrats are corrupt demagogues.]

So, in sum, here's the question before the house. If we're going to design a new state (assuming we're for tripartite government, democratic republicanism, etc.), how do we draft the constitution so that legislatures have the freedom to make poor policy choices but not to pass laws that violate citizens' civil rights, especially the rights of (political, ethnic, religious) minorities? The answer, I think, is going to be more complicated than what you can get out of any single axiom. Emphasizing procedural justice to the exclusion of any other principle, per Tom Lehman's proposal, doesn't get you civil rights protections in cases in which they're not necessary for a clean process. Emphasizing substantive outcomes (or at least attempting to, as in the case with these three potential amendments) substantially undercuts democratic freedom. My proposal, such as it is, essentially asks for a constitution to be dispositionally oriented towards maximal, limited, and effectively inviolable individual autonomy. This is an analogue to virtue ethics, and I think provides for a viable harmonious convergence of liberty with democracy in the (if you will) rules of recognition that a strictly utilitarian, or even a strictly deontological principle doesn't allow.


At 3:04 AM, Blogger Tom said...

My proposal, such as it is, essentially asks for a constitution to be dispositionally oriented towards maximal, limited, and effectively inviolable individual autonomy.

See, here’s the problem. In any practical sense, the idea of “inviolable individual autonomy” is meaningless. In real situations there is some point at which the cost of not violating individual autonomy becomes prohibitive. Let’s call this cost C. There are exactly 3 ways to deal with the problem of the existence of C.

1) Put C into the constitution. (This is analogous to adding in a one-off right to abortion—i.e. saying that no benefit anti-abortion legislation could bring about could justify its cost) I’m not going to say much about this option. It seems wrong to me, and I think it seems wrong to you too. If this is untrue, I’d be happy to expand.

2) Give legislatures the power to decide what C is.

3) Give courts the power to decide what C is.

What you are really saying in the quotation above is that, in the realm of individual autonomy, you favor 3 over 2. However, to me, given our mutual commitment to democracy, this seems extremely controversial.

One other quick thing. I don’t think I’ve gone on record in this debate explaining how I think we should deal with the problem of minority rights. So let me just say this: Courts should protect minorities. How can it do so without imposing its own values like I’ve argued it shouldn’t? Well, it’s complicated. Fortunately we don’t have to deal with it when we’re talking about a RTP amendment because no minorities are being oppressed. (Yes, there are equal protection arguments for the unconstitutionality of abortion laws, but I think those fail for different reasons, and nevertheless are beside the point.)


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