Constitutional Gridlock

The United States has the world’s oldest and shortest written constitution. This naturally invites the question “Is the US constitution out of date and in need of drastic updating?” One letter writer in the April 25 edition of The Economist thinks so. I do not normally concern myself much with what a letter writer thinks, at least not enough to blog about it. However, in this case the writer has identified himself as Philip Cerny, Professor emeritus of politics, University of Manchester. Since he has effectively billed himself as a sort of expert on the subject whereof he speaks, I feel that criticism is fair and worthwhile.

Prof. Cerny begins his letter by correctly observing that, unlike a US President, a British Prime Minister whose party has a majority in the House of Commons can effectively rule as he pleases. He more than implies that this is a good thing. I am not convinced. But I am more interested in his thoughts on the US system than the Westminster one.

Prof. Cerny opines that the relative weakness of the office of US President is responsible for current ills:

“But the record of the past four years in particular has been one of gridlocked government rooted in an anachronistic 18th-century constitution with a dysfunctional separation of powers.”

I’m not quite sure where to begin explaining the ways in which this statement is wrong.

First, if Prof. Cerny knew a bit more about American history, he would know that there is nothing singular about the current state of American political gridlock. It has existed on and off almost since the founding of the republic. American politics has always had an ugly and partisan side to it, from the days of the first party system (Federalists versus Jeffersonian Republicans) to the second (Republicans versus Whigs), to today. The gridlock over the slavery issue in the 1850s makes today’s politics look downright gentlemanly — at least there is no Charles Sumner being nearly clubbed to death on the Senate floor by a Preston Brooks. So yes, political deadlock is a fact of American political life.

Second, instead of viewing the constitutional separation of powers as “dysfunctional”, one could argue that it is functioning more or less as the founding generation intended it to, insofar as it is hindering activist government and preventing what I like to call “political entrepreneurialism”. In Federalist No. 48 Madison worried that in pre-Constitution state governments “[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” He said that critics of the proposed constitution “seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” One of the reasons for instituting a robust separation of powers is to slow down this impetuous vortex, to allow enough time for two things essential to wise government to assert themselves: reflection and compromise.

On that score, I would say that, Prof. Cerny’s opinion notwithstanding, the separation of powers has not been effective enough in slowing down government. Too much legislation is being created, and too much of that legislation is unwise (to say the least). Meanwhile, successive presidents have found ways to get around the separation of powers, leading to what some critics have called “the imperial presidency”.

Prof. Cerny praises the union of legislative and executive functions in the hands of the British Prime Minister. I would argue that the only reason this has not been an utter disaster for Britain — though some cynics would say it has been a disaster — has more to do with peculiarities of British history and culture. Fortunately, this has been mostly passed on to the heirs of Westminster-style democracy in countries such as Canada and Australia. Let us instead call to mind other examples of nations with a robust union of powers. Shall we praise the Soviet Union under Stalin? Germany under Hitler? Zimbabwe under Mugabe? These have all united the legislative and executive functions in the same hands.

I submit that America’s political deadlock has little to do with the age of its constitution. One of the virtues of that constitution is the relative ease with which it can be amended. And it has in fact been amended as recently as 1992. By contrast, Canada’s constitution is effectively unamendable. And let us politely avert our eyes in shame from the anachronisms of British parliamentary democracy. If the US has “an anachronistic 18th-century constitution” (as Prof. Cerny puts it), the British have a positively medieval one.

Nor is America’s political deadlock attributable solely to the constitutional structure of its governing institutions as such. There are other nations with similar republican constitutions that work reasonably well. And America’s has worked reasonably well throughout most of its history, up to quite recent times. It became the world’s oldest written constitution for a reason: simply put, it worked.

If there was a flaw in the Founders’ plan it was this: The Founders were 18th-century gentlemen with an 18th-century gentleman’s view of politics based on compromise, mutual civility, and disinterested service for the public good. They did not foresee the rise of party systems, nor did they foresee the development of an American political class no longer able to live up to those ideals of compromise, mutual civility, and high-minded public service.

It is not the constitution that is broken, it is the people charged with upholding it.

“The Federalist”

Hamilton, Madison, and Jay, The Federalist (New York: Modern Library, 2000).

In Philadelphia in the summer of 1787, delegates gathered to come up with suitable changes to the Articles of Confederation, the document that had outlined the terms of cooperation of the thirteen American colonies in their struggle for independence from Great Britain. During the Revolutionary War and in the years immediately following, the Articles had proved themselves woefully inadequate. They bound the confederacy too loosely. Many states were not paying up for their share of war costs, and the Articles provided no powers for forcing them to do so. Interstate commerce was being hampered by state-imposed tariff barriers that were self-canceling at best, self-destructive at worst. And Shays’ Rebellion in Massachusetts seemed to indicate the need for some centralized military power to maintain public order and security.

Even so, the delegates to the Philadelphia Convention went well beyond their brief. Rather than simply improving on the Articles of Confederation, they instead ended up drafting a new Constitution that would form a more perfect union between the states. Many people today, especially Americans, tend to believe that this Constitution emerged fully formed from the heads of the framers. In reality, as the notes of the convention taken by James Madison make clear, the room in which they worked became a veritable sausage factory of political deal-making.

The Federalist papers were an attempt to sell the resulting sausages to the American people during the ratification process that followed. On the other hand, despite the papers’ purpose as propaganda, never has political hackery contributed so much to Western political thought.

The papers offered wise and sometimes profound meditations on the human political animal that ventured far beyond their limited purpose as defense of a particular constitution. They were also very persuasive, although at the time their persuasiveness lay as much in the fact that they were published in such rapid succession — often three per week — that opponents hardly had time to reply. Anti-federalists simply couldn’t keep up with the fertile minds of Hamilton and Madison.

I say “Hamilton and Madison” while leaving out Jay because in reality the latter only ended up penning five of the papers (numbers 2, 3, 4, 5 and 64), before dropping out of the project due to ill health. Thus, of the other numbers, Hamilton authored fifty-one, Madison authored twenty-six, and the remaining three were co-authored by the two of them.

Federalist No. 1 was signed by “A Citizen of New York”. However, Madison then joined the team and he was a Virginian, so every paper thereafter was subscribed “Publius”, the name taken from one of the founders of the Roman Republic, Publius Valerius Publicola (Publicola = “friend of the people”). Since there were eighty-five papers altogether, there isn’t space here for a thorough analysis of all of them, or even for anything like a comprehensive overview. Instead I will discuss three sample papers, the first two of which are stand-alone classics of political theory.

Federalist No. 10 (Madison)

Number 10 is a tour de force of republican political argument and is possibly the most famous of the Federalist papers. It has also become a canonical text for the so-called “public choice” school of economics, of which I consider myself an amateur devotee.

Public choice economists such as James M. Buchanan have criticized mainstream economists, who too often adopt the standpoint of policy adviser to some benevolent despot (i.e. government). Buchanan has spent much of his career arguing that the despot is neither benevolent nor disinterested, and that this fact must be taken into account when designing or proposing to reform political institutions. Buchanan professes himself to be a follower of Madison, who in Federalist No. 10 (and elsewhere) argued that there is no such thing as a disinterested legislator. For one thing, a legislator is a human being (or a group of them), just like anyone else, so why should we expect that he alone would be exempt from the self-interest that motivates the rest of us? As Buchanan would put it, government is an actor in the market, not a spectator standing outside it.

For another thing, legislators legislate, and all legislation involves taking sides. Legislation is not impartial. And because it is not, we can expect the realm of politics to be a battleground where competing interests duke it out. The most that can be hoped for is that the battle remains more or less civilized. In the pursuit of their competing interests, people will form factions. As long as people are free to pursue their ends, competition and factions are natural concomitants of a free society:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life because it imparts to fire its destructive agency.”

In other words, there are no utopias in politics.

It was common for eighteenth-century political thinkers to abhor factions or parties, as these were signs of interest, and politics was ideally supposed to be disinterested and public-spirited. But for Madison, the pursuit of factional self-interest was natural, and since there was no impartial agency that stood outside the fray to mediate, the best that could be hoped for in a free society was to have well-designed institutions that could limit the damage factions can do:

“Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are and must be themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail…. The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”

This is especially necessary in a democracy, where there always looms that most dangerous of factions, the democratic majority. Imagine a democracy of three people, A, B, and C. It is always a possibility for A and B to form a voting bloc to deprive C of his wealth or rights or liberty. The best way to avoid this outcome is to have institutions and constitutional constraints which prevent A and B from effecting their intentions. Such a constitution may provide for a list of protected rights and liberties that may not be infringed upon by a democratic legislature. Or it may provide that in order for anyone’s rights to be infringed, unanimity is required. Or it may give citizens of C’s description two vote to compensate. Or it may provide for more than one legislative house, with different rules of representation to ensure that one may act as a check upon the other.

 Whatever the precise constraints a society chooses, Madison’s point is that men are — or should be assumed to be — imperfect and selfish creatures, and that there is no power that can be assumed to be impartial. Interest must oppose interest because there is no disinterested power to oppose it. These considerations lead naturally to a discussion of Federalist No. 51, another great masterpiece by Madison.

Federalist No. 51 (Madison)

Because humans are self-interested, and because their interests often clash, there must be some power that can restrain their pursuit of interest. In most political theories, this role has been played by government. But governments are composed of human beings, so they too are subject to the same self-interested motivations and must be restrained. As Juvenal rightly asked, sed quis custodiet ipsos custodes? (“But who will guard the guardians themselves?”). Here is how Madison famously stated the paradox in Federalist No. 51:

“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, to oblige it to control itself.”

One of the ways of doing this was by a constitution which provided for separation of powers and functions in different branches of government, branches which could act as checks upon one another. It is this that has become the central hallmark of Madisonian republicanism. But just as Madisonian is his encouragement of pluralism: The more groups and subdivisions there are, the less likely it is that any one of them can form a majority and overpower the others. In our three-person democracy, it is very easy for A and B to form a faction to prey upon C. But in what Madison and Hamilton called an “extended republic” a vast number of citizens can form a vast number of factions, no one of which is likely under those conditions to become powerful enough to dominate the others.

This line of thinking informs Madison’s reflections on the separation of church and state. For example, regarding religious pluralism, even though Madison was probably the least religious of the Founding Fathers (he may even have been an atheist), he encouraged freedom of worship because he wanted as many religions to flourish as possible: the more of them there were, the less dangerous they would be to the state. With no single religion having any hope of dominating over the others, religious groups would spend less time trying to take over the reins of government, and more time making jealously making sure that no other sect tried to do so.

Federalist No. 72 (Hamilton)

This work of Hamilton’s is part of a running argument defending a strong executive branch. This is in response to anti-federalist arguments that an executive magistrate should only hold power for a brief term and should not be subject to re-election. It is to the topic of re-election that Hamilton’s attention turns in this paper. I chose to look at this piece because it well illustrates the Federalist’s adeptness at designing republican institutions through incisive analysis of the springs of human political behavior and the incentive structure of political office-holding. In other words, beginning with how humans can typically be expected to behave in political contexts, institutions are proposed that, in the words of Hamilton, best balance the “energy of government” with the “liberties of the people”.

This tension between strong government and individual liberty would in the coming years be reflected in the growing tension between Hamilton’s and Madison’s respective views of republican government. Hamilton tended to stress the necessity of energetic government, seeing a strong federal government as the guarantor of individual liberty (while implicitly viewing the state governments as liberty’s greater threat). Madison, on the other hand, had a growing jealousy of energetic government’s ability to trample on individual rights. His solution was to weaken government through intricate institutional checks and balances, having power oppose power. Despite their collaboration in 1787-88, Madison and Hamilton a rift would eventually form between the two men that was never healed. But the rift still lay in the future when Hamilton wrote Federalist No. 72.

Excluding the executive from seeking re-election would have several pernicious effects, argued Hamilton. For one thing, it would reduce the magistrate’s incentive to good behavior; since he had no hope of being re-elected, he had less incentive to be exemplary in the performance of his office. “There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them.”

In addition, Hamilton argued that the exclusion from re-election would result in a more urgent temptation of the office-holder to make the most of his short time in office financially: “An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory.”

A greater danger than peculation was the possibility of usurpation. An unscrupulous magistrate might simply decide he doesn’t want to give up his office. Without any hope for continuance in office, “such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.”

I have personally been favourable to limiting the tenure of elected officials to one term, of whatever the length. One of the reasons I have favoured such a policy is the notion that the officeholder would be more independent and willing to make hard decisions if he did not have to worry about re-election. To this, Hamilton conjectures that such a magistrate might actually be just as inclined to pander to the public as one with an eye on re-election, since at the end of his term he would be compelled to return to the people as a private citizen: “May he not be less willing by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.” This argument may have been more convincing in the eighteenth century, when a gentleman ran in smaller and more localized circles than the typical politician does today. I am not convinced by it.

Finally, and most dangerously, there may be times where the people themselves wish the person to remain in office. What happens when the wishes of the people for a favourite son are thwarted by such a rigid constitutional restraint? “There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege.” Hell hath no fury like a mob scorned. The people may simply decide to pull down completely the constitutional barrier separating them from their fancied man. Again, I do not find this argument of Hamilton’s overly convincing. Organized collective action of that nature takes considerable effort and enough time that the fickle mob is likely to grow indifferent to their erstwhile favourite.

Despite their later divergence in thinking, Hamilton’s approach is similar to Madison’s in assuming that human beings are largely self-interested and that because politicians are humans too, they should also be assumed to be self-interested. Institutions cannot be designed as if people are angels. Instead, writes Hamilton, because “the desire of reward is one of the strongest incentives of human conduct… the best security for the fidelity of mankind is to make their interest coincide with their duty.”

Après moi, le déluge

Gerontocracy

Back in March I discussed some problems of intergenerational justice. Some of that discussion was framed in fairly abstract terms, even dealing with millennial timeframes. In this post, I’d like to return to the theme of intergenerational justice. I recently read an interesting argument on intergenerational justice which I will present for you to mull over. I don’t buy it myself, but I’d certainly be interested in your thoughts.


It’s a well-known fact that in Canada and the US, older citizens are more likely than younger citizens to vote. Several reasons have been offered for this, none of which I intend to delve into hear. However, it is safe to say that the elderly have the attention of politicians and that policy is shaped accordingly. Thus, looking with trepidation towards the future, as our population ages we can expect policies to be adopted that are favourable to the old. For example, I’m sure we can expect increased funding for our medical system, since an older citizenry will be more reliant upon it.


Now, increased funding may be music to the ears of many, but the costs will probably be quite exorbitant. It must be funded somehow. Unfortunately, demography will work against such viable funding, since the number of people comprising the body of the nation’s taxpayers will shrink proportionally to the number of those who are demographically the greatest consumers of tax revenue. The simple fact is that fewer young people will have to work a lot harder to support the increased health care requirements of a growing number of old people — old people who, for the most part, are no longer contributing to their own health care needs.


In his book The Constitution of Liberty (1960), Friedrich Hayek predicted that a time would come when the burden of funding public medical and pension schemes would be so high that the young would simply baulk at continuing to contribute to them. Economist Gordon Tullock has made a similar claim, predicting that a point would be reached when the realization kicks in among the young that over their lives they will contribute more to such schemes than they can expect to receive from them. As soon as that happens, the whole pyramid scheme will collapse. Although our current society is one that eats its young, it may eventually swing to the opposite extreme, becoming a society in which the old are pushed out onto the proverbial ice floe to die. I am not quite so pessimistic, but there are serious structural problems to be dealt with.


I recently read a paper by Philippe van Parijs which floats a thought-provoking idea, although it is an idea that has no hope of ever being put into effect. Still, it is worth pondering, not so much for its feasibility (it has none), but because of the issues of social justice it brings to the fore. The paper is called “The Disenfranchisement of the Elderly, and Other Attempts to Secure Intergenerational Justice” (Philosophy and Public Affairs 27 (1998), 292-333). The title gives more than a hint as to the proposal it contains.


When we vote, we are exercising a right to have a say in policies that will have effects on others besides ourselves. For example, when I vote in favour of a policy that will raise prices in the industry in which I work, or artificially subsidizes it, if the policy is passed, my vote will redound to my benefit, but it will be to the detriment of consumers generally, who will now have to pay artificially higher prices for the goods my industry produces. A perfect example of such a policy would be agricultural price supports.


The point here is that, much like economic activity, such political activities as voting can have negative externalities. However, unlike in most economic externalities, at least in voting the parties affected get some say in the matter.


Or do they? When I vote for some expensive social program that is to be financed by borrowing, I reap the benefits of that program, while leaving the cost of it to be paid by future persons (among whom I may or may not be included). Again, this is a situation where voting creates a negative externality. However, in this case the people negatively affected do not get a say, because they are not yet born or are perhaps too young to vote. This is essentially a form of taxation without representation. Don’t get me wrong. I’m not against expensive social programs per se. If they have broad and informed support, then in principle I don’t have a problem with them. I just think that they should be financed through current revenues. In other words, we should have to pay for them, not others who have no say in the matter and who will possibly never reap any of the benefits.


Which brings me back to van Parijs. He argues that since voting can result in such negative externalities, either extra weight ought to be given to the votes of those who will bear the costs of those externalities, or else the votes of those who stand to benefit without bearing the full costs ought to be discounted. Now here’s the catch: There is often a temporal dimension to externalities. Many policies have distant cost “horizons”, in which benefits are experienced now, while real costs are experienced quite far off in the future. Because humans have finite lifespans, where the cost horizon of a policy lies beyond the lifespan of the person who votes for it, an incentive is created for the old to vote for such policies and the young to vote against them.


Imagine that you are a very old person in a society without a publicly-funded defined benefit pension scheme. Such a scheme is offered as a policy by some clever politician. Given how close you are to retirement, you would have every reason to vote for this policy, since you stand to contribute much less to it than you would receive in benefits from it. Sooner or later it must be paid for, but when the final bill becomes due, someone else will be stuck with it.


The same goes for publicly-funded health care: since the elderly are disproportionately greater consumers of health care resources, if a public system were being set up from scratch, although all might have some incentive to vote for it, the old would have a greater incentive, since they would use it much and contribute to it relatively little. In effect, they would be free riders on the system, even if that is not their primary intent.


Returning to the pension scheme example, we might note that the politician proposing it also has a perverse incentive. Generally speaking, in any such proposed policy, the higher the defined benefit relative to expected contribution, the greater the likelihood that people will vote for it. The old will do so for obvious reasons. The young may vote for it in the hopes that, so long as over their lifetimes they will take out more than they put in, they will have entered the pyramid scheme early enough to cash in. Thus, the system most likely to be proposed will be one that is not viable in the long term (which is in fact the case in most Western nations today), but is at least viable enough in the short or near term to induce a majority of people to vote for it. After all, if a system was proposed whereby you got precisely what you put in, most rational people would opt out, since they could do better through a private scheme. And of course, if the cost horizon is far enough off, the people who will be around when the bill becomes due are not present here and now, when the policy is to be voted on.


Van Parijs’ corrective is disarmingly simple, at least in theory: the old should somehow be disenfranchised, either absolutely, or by relative weighting of votes, since they are too apt to vote for policies that will produce negative externalities on the young and on future generations. Old people simply do not bear the full cost of their voting decisions and should therefore be prohibited from voting, or should at least have their votes count for less.


Of course, there are difficulties with this idea, quite apart from the practical barriers to its implementation, not least being, what exactly should the cut-off age be? Perhaps instead of a precise cut-off age, it could be introduced gradually over a person’s lifetime, with the relative weight of one’s vote bearing an inverse relation to one’s age.


Van Parijs also considers the other option, namely increasing the value of young people’s votes. Unfortunately there are limits to this. For example, how do you give votes to those who are yet unborn? And although the voting age could also be lowered, thereby allowing more young people into the voting pool, giving voting rights to eight-year-olds might be a cure worse than the disease. Eight-year-olds are not likely to understand the issues or policies in any great depth (indeed, most adult voters are intellectually unprepared for democratic participation). What is more likely to happen is that most of those newly empowered eight-year-olds would simply not bother to exercise their voting rights at all, which upon consideration is probably a good thing.


There is the additional danger of children voting for whomever mommy or daddy tell them they should vote for. Ironically, this might not be such a bad outcome, since assuming the parents are below the age of, say, fifty, this would effectively give them extra voting weight. The downside is that it would arbitrarily privilege parents, likely leading to a system that inclines towards policies overly favourable to parents and their offspring (in my opinion, the current system is already too favourable to parents). After all, parents can impose their own forms of voting externality if given the opportunity. For example, parents might use their beefed-up electoral weight to vote for lavish publicly-funded daycare schemes that would impose involuntary costs on the childless.


And this brings us to what I think is the crux of the problem. Van Parijs focuses on the unfair advantage old people get from their demographic strength, their relatively high voter turnout, and from the low voter turnout of the young. But there could just as easily come a time when demography works out differently, and where the young vastly outnumber the old at the polling booths and push them out onto the proverbial ice floe. How far should we go in disenfranchising people on the basis of what could prove to be a relatively short-lived demographic fluctuation?


Right now the old vote for policies that benefit them disproportionately. We can also safely predict that young people — at least the ones who bother to vote — would display a tendency to vote for policies that would disproportionately benefit the young. If the current upside-down demographic pyramid were suddenly to be right-sided, instead of our current gerontocracy we would merely have a different kind of intergenerational injustice, where policies benefit the young at the expense of the old. Van Parijs’ immodest proposal is a temporary bandage for current demographic circumstances. It is not a viable plan for long-term intergenerational justice.


On the fairly conservative assumption that the political behavior of each voter is at least moderately self-interested, just about any demographic subset would benefit itself by imposing costs on others if it was in the position to do so. Age is not the core problem from the point of view of justice.


Usually such free-riding is not even done consciously. In order to get buy-in, every group tells itself that its favoured projects — i.e. the ones from which it coincidentally stands to benefit the most — are good for everyone, and that therefore everyone ought to contribute to them, even when this is clearly not the case. For example, many farmers support policies of agricultural price supports, telling themselves (and the rest of us) that it’s in our interest to have profitable small farmers. In reality, such price supports tend to favour larger farmers even more. Meanwhile, the majority of us who are non-farmers pay more for food. At the end of the day, it probably would be more efficient and rational to simply take money directly out of the pockets of non-farmers and put it into the pockets of small farmers. But if such a pill is to be swallowed by the public, it must be wrapped in conventional pastoral poetry about the superior moral virtue of the agriculturalist and how his valor somehow ennobles us all.


That is just an example. My aim is not to ridicule or demonize farmers. My point is to show that old people are not the only group in society that lives off the rents of others. Handicapping the elderly would probably only serve to empower a new group of people to leverage government for rents.


The sad fact is that we would all be rent-seekers if we could. We all have things we’d like and we’d all prefer it if other people paid for them. That is why in the final analysis, rather than disenfranchising people, we should instead concentrate on structural political reforms that take away government’s power to distribute rents, so that when people vote, they do as little damage to others as possible.

Easy Divorce

The divorce industry?

In my previous post, I offered this little syllogism:


1.    The granting of enhanced administrative powers should generally be avoided.
2.    Activist government requires (almost by definition) enhanced administrative powers.
________________________
3.    Therefore, activist government should generally be avoided.


 I then outlined some rough and ready criteria for assessing whether activist government was appropriate or legitimate. There were five criteria, the violation of any one of which would, at least prima facie, be sufficient to invalidate legislation on republican grounds. The first two of these criteria are perhaps the most important, and yet they are probably the ones most often violated:


1.    Is there a problem, and can it plausibly be solved? (The second part of the question is intended to eliminate administrative wild goose chases, such as “the war on drugs”, “the war on terror” and “the war on poverty”. The first part of the question is meant to draw attention to the fact that something is not necessarily a problem just because an activist or an entrepreneurial politician says it is.)

2.    Is government the appropriate or best-placed agency to solve the problem? Or alternatively: Is there a robust and exclusive rational connection between the nature of government as such and the nature of the problem?


Conveniently, as I was writing that, a new provincial law came into effect in Ontario that illustrates my point. The law requires that couples who want a divorce must first attend an information session on alternatives to the standard legal methods of obtaining one. According to Chris Bentley, Ontario’s Attorney-General, “going to court and having a court battle in family proceedings can be enormously costly, take a lot of time and probably most significantly be very emotionally damaging to children and to the two individuals.”


No doubt his assertion is correct. For our purposes, we can take Mr. Bentley’s assertion as his statement of the problem for which he feels his legislation is the solution. So according to my criterion, our first step must be to ask, “Is there really a problem?” According to Mr. Bentley, the problem is one of expense for litigants, as well as emotional turmoil for them and their children.


Divorce horror stories abound. And yet, from what I can tell (admittedly not having been divorced myself), often much of the extra turmoil and expense associated with messy divorces can be attributed to the adult principals in the affair not behaving much like adults. Lawyers are expensive. One doesn’t need a government-mandated information session to figure that out. And it gets more expensive the more one chooses to make the process more difficult than it needs to be. Most of the people entering the process know all this, at least on some level. Any additional pain and expense they undergo is largely of their own making. The causes are natural human selfishness and pettiness, with an admixture of anger, resentment, betrayal, and desire for vengeance. These are natural human feelings that can overcome rational thought and make one undergo a litigation process no rational person would ever want to enter. But, again, I stress that the problem here is not ignorance of the fact that divorce is expensive and stressful. If anything, a forced information session might simply add another level of complication and humiliation to the process. This is especially true for those couples (and they do exist) who are rational, and who would otherwise manage to effect a clean break. As for stress on children, not every couple who divorces even has children. I don’t have statistics on this, but I’ll bet the proportion of divorcing couples who are childless is quite significant.


In short, if there is a problem here, it is mostly of a self-imposed and/or private nature. I don’t see an interest here that government must protect, at least where no children are involved. I see no economic externality which government must correct, and if harm is occurring, it is mostly self-harm. As such, it is not obviously a problem for which government interference is a desirable or effective solution.


On the other hand, it might be argued that the purpose of the government-mandated information sessions is to educate couples on the options for alternative and less painful methods of separating. They simply may not know that there are other options besides the traditional and expensive legal route. Again, I would reply that this might be the case. These people may profit from the information the sessions provide. But should they not be responsible for seeking this information out themselves? Why is it my and your duty to provide them with this? If they desire a cheaper and less painful divorce, they thereby have an interest and an incentive to seek it out themselves. If the horse is thirsty, it will seek out water and it will drink it. And if the horse isn't thirsty, although you can lead it to water... well, you know how the rest goes.


Besides the fact that the parties themselves should be responsible for making their own divorces less painful, there are at least two other reasons why the government should not be involving itself in this area. First, there are presumably professionals that specialize in alternative dispute resolution. They are the ones that would profit from people seeking divorce alternatives. Don’t they therefore have some economic incentive to educate the public, through advertising, just like any other business? Why must the government be responsible for bringing business to them? This legislation in effect subsidizes their industry. In fact, it is precisely this subsidy that leads me to suspect a certain degree of rent-seeking behind this legislation, a suspicion by no means allayed by the suddenness and lack of discussion surrounding its implementation.


Second, even if you believe there is a role here for government intervention, cannot the goal of public information be just as well-served by posting information on a website or sending a pamphlet to people who file for divorce, rather than forcing them to attend information sessions as if they were outpatient sex offenders or congenital morons?


This program will cost money: “The program is directed specifically towards saving time and legal fees for couples hoping to get divorced, he [Bentley] said – although he hasn't been able to quantify those savings yet…. The attorney general's office will spend an extra $5.3-million a year making the program mandatory at all courts, bringing the total cost of the initiative to $8-million a year.”


In other words, since it costs people money to get a divorce, this legislation spends taxpayer money to help them save money. Again, at the end of the day we’re talking about a subsidy, this time to divorce seekers in addition to divorce counsellors. In reality, it’s probably not a very wise or effective subsidy, since there are cheaper ways of providing the same service.


Let’s say that information pamphlets would cost 50 cents each to print (it’s probably a lot less). Since there are around 13 million people in Ontario, the $8 million that will be spent under the new legislation could instead ensure that every man, woman, and child in Ontario receives a pamphlet informing them about alternative dispute resolution. There would even be spare pamphlets left over in case you lose yours. A mass mailing could be done just once, rather than spending $8 million year after year. Heck, we could save some trees by having the pamphlet available as a downloadable pdf. And I suspect that the pamphlets would be just as (in)effective as the information sessions, but without the paternalism and hassle involved in the latter.


Some readers might not be impressed with these savings. After all, they might say that $8 million is a tiny fraction of Ontario’s overall budget, nothing to be concerned about. This is a common and fallacious line of argument, and it frankly drives me crazy when I hear it. By this logic, we could increase spending indefinitely, so long as each increment is a so-called “tiny fraction” of the budget. Eight million here, eight million there… At some point the budget will swell so large, that the $8 million becomes a tinier and tinier fraction of the whole, until one day we’re surprised to find ourselves bankrupt.


It should be added that some divorcing couples have good reasons for going the traditional legal route. Alternative options might not work for everyone. Forcing these people to go through this process seems, again, a needless and humiliating complication forced on them by a well-meaning but paternalistic government.


And we might reasonably question how “well-meaning” the measure really is. When I see measures like this that have so little justification, methinks I again smell the telltale stench of rent-seeking. As I demonstrated in my previous post, Cicero can be helpful in these situations. We should ask ourselves the same question he advised asking in his speech Pro Roscio, “Cui bono?” (“Who profits?). Put into current English, Cicero would say “Follow the money”. We’ve already noted that the legislation effectively involves subsidies to two different parties. One subsidy goes to couples seeking divorce; they are provided with information (at taxpayers’ expense) on how to cut down on their legal costs. Another subsidy goes to the alternative dispute resolution industry, which now has the government working in sales and marketing on its behalf. In this instance government is playing the role of carnival barker, but one that has the power to force you to see the bearded lady or the two-headed calf.


Here’s a better analogy: It would be as if the government forced potential car buyers to sit through a commercial for General Motors before they were allowed to buy a car. The commercial will, of course, tell them how wonderful General Motors cars are, along with how expensive and liable to breakdown the competitors’ cars are. The question is, will such tactics be effective? Some may be convinced to buy a GM car (and of those, some would have bought a GM car in any case, without the commercial). Others may be resentful at being forced to sit through the commercial and will refuse to purchase a GM car, on principle.


Is it asking too much to expect people in the market for a car or a divorce to seek out what they think is the best deal? Is it wise or desirable for the government to play consumer advocate? It is especially undesirable when the government clearly advocates for a specific brand or product, as the result of a process of rent-seeking by interested parties.


If there has been rent-seeking, I doubt very much it is coming from citizens seeking divorce. If there were a significant groundswell of average citizens who were sincerely asking for cheap and painless divorces, we probably would have heard more about it. This legislation was brought into force so quietly that it is more likely the result of lobbying by a less legitimate and more organized interest: the dispute resolution industry. Simply Google the terms “Ontario”, “alternative”, and “divorce”, and you will see that such an industry exists.


Finally, there might be a moral hazard argument here, although it would be a counterintuitive one. Let us assume that, speaking generally, divorce is a bad thing. By this I mean that we would rather that our society had fewer of them than more. We would prefer it if marriages were generally happy and divorces unnecessary. We take it as given that divorces involve emotional pain. As it stands, they also involve substantial financial expense. Let us further assume that some subset of couples are currently unhappy, but that under the right circumstances they could avoid divorce and remain married. Not all couples who are unhappy are destined to be unhappy, and not all couples who divorce need to divorce. In other words, there are currently unhappy couples who are faced with the choice of (i) working things out with each other and struggling towards a married modus vivendi with each other, or (ii) getting a divorce. These are couples who could go either way. Some will choose (i) and some will choose (ii). Now, what will happen if the government facilitates cheaper and less painful divorces? I predict that at least some of those couples who would have chosen (i) will now choose (ii). The divorce rate will probably go up, though admittedly not by a lot. More importantly, more divorces will happen that need not to have happened.


Of course, it could be objected that if (ii) is now cheaper and easier, this would undercut the original premise of the argument that divorces, being expensive and painful, are generally to be avoided. After all, if the divorce rate goes up, but people are happier than before, then no harm done, right? The moral hazard is no longer really a hazard, as such.


I suppose this depends on one’s view of marriage. If you believe that marriage is simply a transactional arrangement of convenience whose sole purpose is to provide utilitarian gratification to two parties (a sort of open-ended mutual financial and sexual prostitution contract), then naturally you might advocate that dissolving the contract when it is no longer of benefit to the parties should be made as easy as possible. Those who think there is something more to marriage than this might be uncomfortable with the idea that marriage should be too easily terminable. For the latter, easy divorce is a moral hazard and makes bad policy.


Whether you believe divorce should be made easy or difficult, one might still have reasonable doubts about the idea of being forced to subsidize what is essentially a private interest, and one can reasonably balk at the idea of government playing an activist role in such an interest.

Cicero on Rent-Seeking

Marcus Tullius Cicero, 106 - 43 BC

In 63 BC a Roman tribune of the people named Publius Servilius Rullus proposed an agrarian law to redistribute land. Agrarian laws were not new. The tribune Tiberius Gracchus attempted such a redistribution in 133 BC, and his brother Gaius tried again in 123 BC.

It should be noted at the outset, that agrarian laws did not propose taking privately-owned land away from current owners and redistributing it. Rather, the idea was to take some or all of the ager publicus, the public land. These were lands belonging to the Roman state, usually acquired through conquest. There was often resistance to agrarian measures from the nobility, as many rich Romans had acquired the use of such public lands, whether through corruption or fraud, for very nominal rents. Having possessed such rights to these lands long enough, many of them naturally looked upon themselves as rightful owners, even though at law they were not. Any attempt to redistribute public lands seemed to the nobility like an attempt to dispossess them of their property.

It is hard to have any sympathy with these nobles. They had used the public lands to build up huge agricultural estates (latifundia) worked by armies of slaves, while small farmers who could not compete with them lost their lands and flocked to the city. There were many needy poor crowded into the city of Rome, and preventing something from being done to better their condition seems, well, churlish.

However, redistribution became a political program for ambitious politicians to use for party purposes. There was a so-called “popular” party (the populares) who agitated for better conditions for the poor. They sought to turn mass appeal into electoral success. Opposed to them were the “better sort” (optimates), a senatorial class of wealthy, propertied and powerful citizens who preferred to rely on their traditional auctoritas and their networks of dependent clients. In reality, the leaders of the populares cared little for the poor. They were mostly led by men who could just as easily have sided with the optimates if it weren’t for the fact that they saw opportunities in playing the role of “men of the people”. By way of illustration, the wealthy patrician Julius Caesar was a popularis. And Publius Claudius Pulcher, a member of one of the most illustrious patrician families of Rome, had himself adopted by a plebeian family and changed his name to “Clodius” (reflecting the plebeian pronunciation) so that he could gain election as a tribune of the people. A man as unscrupulous as Clodius could have little real sympathy with the urban mob. The mob was simply a political tool, an alternative route to political success.

(Most of the so-called “left-wing” parties in today’s Western democracies are little different. Having worked in government relations for awhile, I’ve met many of my provincial legislature’s supposed tribunes of the people personally. I can tell you that they are all charlatans, possibly peppered with a smaller number of outright sociopaths. Calling these left-wing politicians “Champagne Socialists” would be giving them too much credit, implying as it does that they actually have a political creed in addition to their merely personal ambitions. To be fair, the right-wing politicians I’ve met are no better; they just haven’t sunk to the same depths of hypocrisy in order to cloak their moral bankruptcy. But I digress.)

It was in this context of a struggle between populares and optimates that Rullus’ agrarian law was introduced. From the populares’ point of view the introduction of the bill was a win-win situation. If it was passed, then they would get their way and gain great popularity with the plebs. On the other hand, if the optimates managed to defeat it, they would in the process have to make themselves look very bad in the eyes of the people. Cicero, who was one of the consuls that year, dared to oppose the bill. He had to walk a tightrope in doing so. He did have some small sympathy for the plight of the poor, but as a novus homo (a “new man” whose ancestors were not nobles and had never held high office) he lacked a powerful familial political base and could not afford to alienate the nobility, upon whom he was dependent for political support. But he also needed the support of the people if he were ever to be able to win another election. For someone less skilled than Cicero at tightrope-walking, to oppose Rullus’ agrarian law might have been political suicide. But Cicero opposed it.

Why did Cicero oppose the bill? In short, because it was dangerously flawed. What’s more important, it was flawed in ways that are instructive to the modern reader who wishes to contemplate various government measures that propose to do good works with other people’s money.

To begin with, Cicero noted the great secrecy surrounding the crafting of the legislation. When Cicero heard that the tribunes were planning an agrarian bill, Cicero, as consul, claimed to have sought to aid them with his political knowledge and experience. After all, he said, doing something to help the poor was a good idea (here Cicero is walking that tightrope, portraying himself as a man of the people). His overtures were rebuffed. Obviously those responsible for the bill did not wish the consul to see what they were up to.

Once the bill was introduced, many flaws became apparent to Cicero. It called for provincial public lands to be sold off, with the proceeds to be put toward purchasing (more expensive) lands in Italy. Colonies of landless poor would then be settled on them. However, the numbers didn’t add up. Cheap land would be sold (probably at a discount) to pay for more expensive lands. And large and profitable latifundia would be broken up into smaller and less profitable peasant holdings. Besides the loss in productivity (to use modern phraseology), the difference in purchase price would have to be made up from the public treasury, thereby likely bankrupting the state.

There were other problems. The sale, purchase, and distribution of the lands was to be entrusted to an elected board of ten men — the decemvirs. However, the arcane and highly unorthodox process for electing the decemvirs provided for in the bill would virtually ensure that none but populares could become decemvirs, Rullus and his cronies among them. In other words, it was a highly partisan piece of legislation. It also stipulated that any candidate for the board of decemvirs had to present himself in person for election. This was engineered to exclude Pompey from standing for election, since he was off campaigning against Mithridates in the East. Pompey was perhaps the only person in Rome at that time powerful enough to stand up to any nefarious designs of the populares.

It was with regard to the decemvirs that Cicero smelled a rat. Several rats in fact. First, the decemvirs were to be given wide discretionary powers. They could buy and sell whatever public lands they liked, to whomever they liked, at whatever price. Heck, they could even sell it to themselves if they wished, since their decisions were final and not subject to veto. It was all a recipe for near-certain corruption and public fraud on a massive scale.

The powers granted them would allow the decemvirs to buy land for a song, either for themselves or their friends. What was worse, Cicero saw the spectre of tyranny looming. Since the decemvirs could distribute lands to whomever they wished, they could strategically settle all their clients in colonies, providing garrisons and bases for future military operations against the state:

“Did you, Rullus, think that we should hand over to you and your engineers of all these schemes the whole of Italy unarmed, that you might strengthen it with garrisons, occupy it with colonies, and hold it bound and fettered by every kind of chain? For where is there any guarantee against your establishing a colony on the Janiculum [a hill just outside Rome, across the Tiber], against your being able to press and beset this city by another? ‘We shall not do that,’ says he. First, I am not so sure of that; secondly, I am afraid; lastly, I will never act so as to leave our chance of safety to depend more upon your kindness than upon our own wisdom.” (Cicero, De Lege Agraria, 1.5.16, Loeb edition)

The wide discretionary powers the bill would give to the ten land commissioners amounted for Cicero to a perfect blueprint for anyone wishing to grab absolute power to do so, which is why Cicero repeatedly referred to the decemvirs as “kings”:

“And from the first article to the last, Romans, I find that the only idea of the tribunes, their only scheme, their only aim in what they [the tribunes] do is that ten kings of the treasury, the revenues, all the provinces and the entire republic, or friendly kingdoms, of free nations — in fact, ten lords of the whole world, should be set up under the pretended name of an agrarian law.” (2.6.15)

Despite the many problems with the bill, it must still have been no easy task for Cicero to sway the people of Rome against it, for many of those people stood to benefit from it, or at least they thought they would benefit from it. He was in effect attempting to stop a bill the purported aim of which was to give relief to the poor. What kind of monster can have anything against helping the poor?

It is this dilemma that has always caught my interest in this speech of Cicero’s on the agrarian law, a speech which in the opinions of many classical scholars is otherwise not among Cicero’s major works. It fascinates me because it represents a problem that is faced by political systems today: many measures are proposed by politicians that are popular, in the sense that they purport to help some group that seems to need help, or purport to be of personal benefit (at least in the short term) to a broad plurality of voters. To oppose such a bill is to court accusations of being in the pockets of plutocrats, or of hating the poor, or of not understanding what is in the interests of the people. It takes political courage to oppose something that appears prima facie morally unassailable.

Sometimes such measures are proposed with the best of intentions by well-meaning politicians. Sometimes, less often, they are proposed with a hidden agenda that is anything but altruistic or aimed at the public good. But even well-intentioned legislation may grant administrative powers that can do damage when wielded by others who are less public-spirited. A few years ago the previous left-leaning mayor of my city, David Miller, demanded that he be given “strong mayor” powers to deal with some of the issues the city was facing. At the time it was a very popular proposal among “progressive” types, but I thought it was a very bad idea. I believed Mr. Miller was not very adept at using the powers he already had, and that little good could come of giving him more. However, putting my personal political bias aside for a moment, I ask supporters of Mr. Miller to imagine that he had been granted those enhanced powers. They would now be wielded by his successor, the right-leaning Rob Ford, who is much-despised by Mr. Miller’s “progressive” fan base. The measure would have thus cut both ways.

I am more comfortable with the general rule of thumb that administrative powers be granted by the people only very grudgingly, and only where they are clearly delineated and limited. They are sometimes necessary, but they are always a necessary evil. From this rule of thumb I am led to a syllogism that must make my “progressive” friends scratch their heads at my retrograde political views:

1.    The granting of enhanced administrative powers should generally be avoided.
2.    Activist government requires (almost by definition) enhanced administrative powers.
_____________________
3.    Therefore, activist government should generally be avoided.

I use the qualifier “generally” because there will obviously be problems that require some kind of coordinated effort by government to solve. However, I have come to the conclusion that such contingencies are much rarer than many people seem to think. At least, I propose that we use something like the following very general test to determine the necessity and extent of government activism:

1.   Is there a problem, and can it plausibly be solved? (The second part of the question is intended to eliminate administrative wild goose chases, such as “the war on drugs”, “the war on terror” and “the war on poverty”. The first part of the question is meant to draw attention to the fact that something is not necessarily a problem just because an activist or an entrepreneurial politician says it is.)

2.   Is government the appropriate or best-placed agency to solve the problem? Or alternatively: Is there a robust and exclusive rational connection between the nature of government as such and the nature of the problem?

3.   Does the government action proposed as a solution involve minimal impairment of rights?

4.   Are the enhanced administrative powers required by the solution (i) clearly delineated, (ii) accountable, (iii) revocable, and (iv) proportional?

5.   If the enhanced administrative powers necessarily include the exercise of discretion, is such discretion minimized as far as possible?

I could probably add more, but that is a start. At the very least, Cicero would have said that Rullus’ agrarian law violates 3, 4, and 5. Depending on one’s view of the nature and causes of Rome’s urban poverty, it may have violated 1 and 2 as well.

Let us return to the tightrope I referred to earlier. Cicero had to avoid alienating the senatorial nobility. This he accomplished in the very act of opposing Rullus’ bill. However, he also needed to avoid alienating the populus, which was best accomplished by somehow positioning himself as a man of the people. As an extremely wealthy consul and member of the Senate, how was Cicero to pull off this latter task? His strategy was multi-pronged.

First, in pointing out the wide powers granted to the decemvirs under the proposed legislation, Cicero repeatedly deployed the language of kingship. He harped on the fact that the decemvirs would be kings in all but name, and maybe some day in name too:

“Thus I maintain, O Romans, that this admirable and popular agrarian law gives you nothing, but makes a present of everything to certain individuals; it holds lands before the eyes of the Roman people and robs them even of liberty; it increases the wealth of private persons and exhausts the fortunes of the State; lastly, the most disgraceful thing of all, a tribune of the people, a magistrate whom our ancestors intended to be the protector and guardian of liberty, is to set up kings in the republic.”(2.6.15, italics added)

To understand this rhetorical strategy, one must understand the Romans’ almost pathological dread of kingship. To be ruled by kings was alright for the peoples of Asia, who were natural slaves anyway as far as the Romans were concerned. But the Romans had overthrown their kings and founded a republic back in 509 BC. This made them free and therefore superior to other peoples. A Roman’s reaction to the word “king” was similar to — though possibly more visceral than — a modern American’s reaction to words like “communist” or “terrorist”. In short, Cicero was attempting to turn the tables on the tribunes of the people, by portraying them as agents of monarchy and himself as protector of the republic. In his references to kingship he was pressing rhetorical hot buttons.

Second, he acknowledged the poverty that many Romans were faced with, and affirmed a desire to do something about it, but not by the means suggested in Rullus’ bill. He even bestowed some praise on reforming tribunes Tiberius and Gaius Gracchus, whose memory was beloved by many of the people, but was anathema to the optimates: “For, to speak frankly, Romans, I do not disapprove of every kind of agrarian law in itself…. I am not one of those consuls who, like the majority, think it a crime to praise the Gracchi, by whose advice, wisdom, and laws I see that many departments of the administration were set in order” (2.5.10). (It should be noted that Cicero was being less than honest here, for elsewhere in his writings he had little good to say about Gracchi.)

Finally, he adopted a line of argument that, in my opinion, does Cicero little credit, for it seems designed to pander to the people’s laziness. He argued that the agrarian law was a bait-and-switch manoeuvre that would take away from the people a privilege that they already enjoyed and replace it with something of lesser value. The people already received a free grain dole. If the agrarian law were passed, they would lose this handout and have to farm for their own grain instead. This seems a very base argument. If the people were disposed to respond favourably to it, then this might say as much about the people’s lack of integrity as it does about Cicero’s.

A more charitable view is that Cicero was speaking to an audience that had been dependent on the grain dole for so long that they wouldn’t know the first thing about farming a plot of land for their sustenance. Many may have been out-of-work artisans rather than farmers. A gift of land might have been of little use to such people. If this were the case, they would probably end up selling their allotments to landowners who could make better use of them. They would then end up back in the city, landless again, with no dole, while their lands wound up in the hands of the rich. This may be why Cicero was arguing that this scheme of the popular party would in reality be no help to the people, but was more likely to make them worse off, while the rich became richer in the bargain.

In the end, Cicero was successful. Thanks to his supreme rhetorical skill, he managed to walk the tightrope, portraying himself as a man of the people and the agrarian bill as a nefarious plot against the liberties and economic well-being of the poor. Cicero was the greatest orator of the age. Our orators are sad rhetorical punies by comparison. We could certainly use a Cicero.

Such quasi-agrarian measures are easy to find today. They are most commonly of three kinds. The first kind involves the proposed sale or privatization of public assets that are a net gain rather than drain on the public treasury. Such assets are often sold off in less than transparent deals without a competitive bidding process to parties who have connections with officials doing the selling, our modern-day Rulluses. As a case study, several years ago the university at which I work sold off a huge tract of its land — an endowment that had originally been granted to it by the taxpayers of Ontario — to a developer who, it turned out, was related to someone on the university’s board of governors. There was no Cicero to speak against it.

The second kind of modern agrarian measure takes the form of some proposal for tax cuts that will “help middle class families” or “create jobs”. Successive such bills make it into law, even though they have done nothing to help middle class families or create jobs. In fact, most of them were never intended to do these things. They were intended to enrich politicians and those who lobby them. Even worse, they are passed in the face of budget deficits, thereby bankrupting future generations who have no voice in the transaction. And again, there is rarely a Cicero to speak against them, because after all, who can be against middle class families or job creation?

The third kind comes in the form of various taxes, tariffs, and subsidies intended to help one economic party, usually at the expense of another. In these cases, government is put in the position of picking winners and losers in the economy, rather then being the representative of all. The “winners” that are picked are usually those who have lobbied hardest and given the most money or in-kind contributions to politicians (i.e. they offered the largest bribes, to call a spade a spade). The “losers” are those who either played by the rules and minded their own business or who failed to lobby hard enough or contribute enough money to those with non-market power.

These are all forms of rent-seeking. In this sense, much of Cicero’s De Lege Agraria can be read as an early contribution to the political economy of rent-seeking. Cicero, it turns out, was a proto-public choice economist, providing insights into non-market decision-making. In fact, the insights offered by Cicero are at the heart of much traditional republican political theory, so perhaps we ought to say that public choice economics is in reality a branch of republicanism. It may be anachronistic to call Cicero a public choice economist, but he was most certainly a republican, one of the greatest who ever lived.

Slowing Government’s “Impetuous Vortex”

James Madison, republican theorist

Canada’s dismal federal election is over, and I for one have never been more ashamed to be a Canadian. Thanks to a rotten and archaic first-past-the-post (FPTP) electoral system, Stephen Harper managed to achieve a “majority” government with just under 40% of the popular vote. Stephen Harper, whose government has been the only one in the global history of Westminster-style parliamentary democracy to have been held in contempt of Parliament. I won’t delve into his myriad other failings, which range from the dishonourable to the downright criminal, as it would take a book — or more likely a twenty-volume set of them — to comprehensively lay his misdeeds before the weary reader.

An American friend asked me to explain why I was so appalled at the election outcome. I had to put it in terms of his electoral system, by having him imagine that a proven traitor to his nation had just been elected President of the United States, but without a Senate or House of Representatives to keep him in check. That, in effect is the state of Canada’s political system at the moment.

I can complain until I am blue in the face about the undemocratic nature of Canadian “democracy”. Nothing will change, because FPTP is very hard to get rid of. First, there is the challenge of making any alternative system of voting seem appealing to a tradition-bound population with an aversion to fundamental change. Second, there is the difficulty of actually implementing such change within a constitutional framework that makes amendment nigh impossible. Third, any alternative system offered faces the equally daunting challenge of being simple enough for a plurality of the people to actually understand it, no mean feat in a populace as politically ignorant as your average Canadian. Fourth, any government with the power to seriously propose and implement an alternative system of voting will necessarily have come to power through the FPTP system first, and would therefore have little or no incentive to change a system that has by definition worked splendidly for them, thank you very much. And even if they were elected on a platform of change, once in power they can easily engineer the failure of any promised referendum on the matter.

In my mind, the worst part about our “democratic” system is not its inability to adequately represent the will of the people. After all, in those cases where the will of the people is ignorant or degenerate, non-representation of the people’s will would be a blessing in disguise. Rather, I am bothered by the Canadian system’s lack of republicanism. Although it bothers me immensely that we have an immoral traitor like Stephen Harper occupying the Prime Minister’s office, it certainly wouldn’t be the first time in a democracy that something so base has somehow slithered into the seat of power. What really worries me is that once he is “elected” with a “majority” government, we have no countervailing constitutional means of resisting his infernal machinations. The House of Commons (the body most analogous to the US House of Representatives) is a creature of party: Mr. Harper’s party now absolutely controls it, and Mr. Harper himself absolutely controls his party. And since more and more power over the years has concentrated itself in the cabinet, and in the Prime Minister’s Office in particular, the House is little more than a stage for second rate orators to show off their limited political talents for the consumption of the folks back home (most of whom couldn’t care less). What passes for debate in the House of Commons is full of sound and fury, and truly signifies nothing.

Our Senate shares with its US counterpart nothing but its bare name. A Canadian senator is not elected. A Senate seat is a patronage plum given to superannuated political cronies of the Prime Minster. Lately, Mr. Harper has used it to reward hack journalists who report favourably on government activities (or ensure that said activities disappear down the memory hole, where favourable reporting is simply not possible). In any case, by constitutional convention, the Senate is barred from acting as a real barrier to legislation. It is little more than a rubber stamp. Much talk goes on in Senate committees I’m sure, at least among those few Senators who show up for work, but when the chips are down, the Senate will prove worthless.

Canada does have a Supreme Court with a respectable record of upholding civil liberties, but the Court has never before had to face the sinister brutality of a Prime Minister like Stephen Harper. Alexander Hamilton noted in Federalist No. 78 that the judiciary is the weakest branch of government, having “no influence over either the sword or the purse... and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Harper has ignored the judgments of the courts before (e.g. the Omar Khadr case), and has railed against the “tyranny” of unelected judges in the past. I don’t see why the leopard should change his spots now. Consider also that there are expected to be several Supreme Court vacancies over the next four years, and these appointments will be in the gift of the Prime Minister. Two Supreme Court justices last week announced their intentions to retire. I expect that their seats will be occupied by new justices with more pliant bums, ones who hold similar views to the Prime Minister’s on the need for unelected judges to keep quiet about things like rights or the rule of law and its supremacy.

Might we be in the unenviable position of having to look to the Governor General to protect our freedoms from the growing despotism? I say unenviable, because the Governor General is an unelected representative of the Queen of Great Britain, a regrettable relic of our days as a British colony. Although our current Governor General is a noted constitutional scholar, there are three reasons not to expect any help from that quarter. First, as with the judiciary, his is a weak branch of government, controlling no resources, and having little democratic legitimacy. If push came to shove, he would get shoved very roughly indeed by a bully like Mr. Harper. Second, he is the representative of a foreign monarch who I have no doubt cares little very little for the fate of our nation, and who is relatively powerless even in her own country. Any real resistance by the Governor General would end up being the fast track to abolition of the monarchy in Canada. Third, again by constitutional convention, the Governor General’s role is mostly symbolic (of what?) — he is a sort of Master of Ceremonies and a rubber stamp for legislation passed by the government.

To reiterate, I’m not so much bothered by the lack of democracy in our system as I am by its lack of republicanism, its lack of counterbalances to executive power. It is possible to have too much democracy, just as it is possible to have too little. Which begs a question: What, precisely, is the difference between a democracy and a republic?

Democracy vs. Republicanism

Much has been written, and much of it opaquely, about what the difference is between a democracy and a republic. I will offer my own cryptic definitions of each, and then expand on them a bit, hopefully making them a little less cryptic.

Democracy is self-determination by the people. This may be done directly, as in a small city-state like ancient Athens, or through representatives, as in most large modern democratic assemblies today.

Republicanism is self-determination by the people as their better selves (in a sense to be explained below).

Democracy has a normative grounding, embodying the concept that the sovereign people are the ultimate source of political legitimacy. Since they are, after all, the ones who will be subject to the coercive powers of government, the people ought to have a say in how those powers will be wielded. On the other hand, republicanism is doubly normative, for it is not merely that the people are the source of political legitimacy; rule by the people is given an added legitimacy by virtue of their being capable of governing themselves. If democracy is good, republican democracy (or a republic with a strong democratic element) is better still.

But what exactly do I mean when I speak of rule by the people as their “better” selves? Do I mean rule by the better sort of people? This has been a common view throughout history and is the concept at the root of aristocracy. This is not what I have in mind. Nobles have proven themselves to be just as fallible, just as selfish, as the common people. Perhaps the only advantage of an aristocracy is that its members have the leisure to stop and consider things. This does not mean that they will stop and consider, or that they will consider well. However, it might partly explain why many republican forms of government have what could be called an “aristocratic” element, a body of people who are not constantly grubbing after votes or currying the favour of a prince. This is usually because either they are not elected, or are elected for long terms, or do not hold their offices at the pleasure of another on whom they are dependent. There is a place for such a body, but its members do not have special or mystical powers such that they should be the sole rulers in a state. If leisure is the main source of whatever political aptitude they bring to the table, then this also implies that the “aristocratic” element does not form a natural ruling class, since leisure is not transmitted through blood or genes.

Madisonian Republicanism

The question is still unanswered: what do I mean by republicanism as self-determination by the people as their better selves? I ask the reader to consider the following brief passage from Tocqueville’s Democracy in America: “What the word ‘republic’ means in the United States is the slow and tranquil action of society on itself. It is an orderly state truly based on the enlightened will of the people. It is a conciliatory government, whose resolutions ripen slowly, are debated deliberately, and are carried out only when mature” (New York: Library of America, 2004, p. 456). There are two key expressions here. The first is “enlightened will of the people”. This could be Tocqueville’s equivalent to my expression “people as their better selves”. But we are still left wondering what is meant by “better” or “enlightened”. The second key expression is more helpful: “debated deliberately, and… carried out only when mature”.

Tocqueville’s view was later echoed by Abraham Lincoln: “A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” (First Inaugural Address, March 4, 1861). Again, as in Tocqueville, we find this instructive modifier “deliberate”. In common speech we usually tend to use this adjective in the sense of doing something with intent. But Tocqueville and Lincoln (and Madison, as we’ll see) used it in the sense of doing something after discussion or consideration.

There is a difference between our everyday sense of the adjective “deliberate” and the republican one of Tocqueville and Lincoln. This difference can be seen when the law considers whether a murder was committed deliberately. To answer this, a court need only ask whether the murderer formed and carried out a bare intention to kill someone. If so, then the murder was committed deliberately. This is pretty much our everyday sense of the term. The court does not particularly care if the murderer considered whether, all things considered, it would be a good idea for him to kill someone. Republican deliberation, on the other hand, has to do with the wisdom of a course of action, and this kind of deliberation is best done in good time. As Tocqueville noted, this kind of deliberation “ripens slowly”. The deliberation of a murderer, by contrast, may take little time at all, and it usually has more to do with the best method of carrying out an intention than with the wisdom of doing so.

Modern US constitutional scholars tend to focus on the dangers of what might be called the “imperial Presidency”, the tendency for power and authority to become concentrated in the hands of the executive. There is good reason for this fear, as it is an observed tendency in modern US history. However, presidential overreach was arguably not the foremost concern back when the Constitution was being debated. For James Madison, perhaps the wisest of the Constitution’s framers, the greater danger lay in the legislative branch. Madison expressed his fears about the dangers of the democratically elected House of Representatives, worrying that it would become the tool of factions, the leaders of which would cobble together majorities to prey on the interests and property of the minority. His worst nightmare was an overly active legislature, because such activity would usually signify that it was up to no good. He saw the legislature as the branch of government most likely to encroach upon the jurisdiction of the other “members” of the Constitution, particularly because it would have the powers of popular support and the purse, which would constitute an unstoppable force against any “parchment barriers” standing in the way of its intentions:

“Will it be sufficient to mark, with precision, the boundaries of these departments in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble against the more powerful members of the government. The legislative department is every where extending the sphere of its activity and drawing all power into its impetuous vortex.” (Madison, Federalist No. 48)

As Madison saw, a fine balance needs to be struck. A democratic element is necessary in a constitution — to provide legitimacy to the government, if nothing else. The trick, then, was to find a way of slowing down that “impetuous vortex” of democratic legislative activity enough to keep it from undermining the state, allowing enough time for cooler heads to prevail. This is the essence of Madisonian republicanism: not creating checks and balances to stop legislation, but rather to introduce enough resistance to the system to buy time for sober second thought to reassert itself. As Larry Kramer puts it,

“Madison’s answer to the problem of republican politics had never been to create an external block on democratic decision-making. Nor had it been to remove the people from the process of governing. His solution was to complicate politics: to slow it down with internal checks, so that what ultimately prevailed was not the immediate reactions of an unreflective people, but rather a reasoned popular opinion that had been refined through a process of extended public debate. Each house of Congress, or the executive through its veto, could prevent proposed legislation from taking effect. But their block was really just a means to test the legislation’s merits and support by forcing advocates to respond to objections. The checking and balancing of the different departments of government thus served as devices to prolong the discussion of controversial proposals.” (Kramer, “Understanding Marbury v. Madison,” Proceedings of the American Philosophical Society 148 (2004), 14-26.)

Put another way, the purpose of checks and balances in the Madisonian republic is to enforce deliberation, so that self-determination of the people as their better selves may prevail. Unfortunately, the particular system of checks and balances devised for the US Constitution may have been too effective, for the American legislative process is often notoriously slow and prone to deadlock. On the other hand, it has displayed an admirable ability to rouse itself in times of imminent danger.

Meanwhile, Back in Canada…

Thanks to misguided British notions of the “legislative supremacy” of Parliament that it has inherited, Canada has historically had an overly strong “democratic element”. There was no effective constitutional countervailing power to slow down Parliament’s “impetuous vortex of legislation”. Fortunately, for reasons I have yet to properly understand, unlike in many other democracies, Canada’s legislative vortex has not been overly impetuous. There have been some ill-considered actions, but none that can be considered catastrophic. Probably this has less to do with any inherent wisdom in our constitution than with a natural conservative animus in the social and political culture of Canadians. Despite momentary fits of energy, Canada is a Red Tory nation, conservative in attitude and action if not in ideology. Although the nation’s Latin motto is A mari usque ad mare (“from sea to sea”), a more apt tag might be Festina lente (“Make haste slowly”).

If we once had to fear an “excess of democracy” in Canada, we do no longer. Quite apart from the unrepresentative nature of our first-past-the-post “democratic” legislature, we have been following the American trend towards an overmighty executive branch. However, unlike the US President, who still finds himself in the humbling position of having to please Congress, so long as he has majority control of the House of Commons, the Prime Minister of Canada can govern unhindered by anything other than displays of backbone from his cabinet members or the biting of his own conscience, two factors seemingly in very short supply.

Republicanism at its best represents a safe haven from the extremes of excessively democratic “mobocracy” on the one hand, and authoritarian tyranny on the other. It allows the time necessary for the democratic element of the constitution to get its deliberations right, and it provides the constitutional restraints necessary to prevent the dangerous gathering of power in the hands of an executive answerable to none.

Madison feared the impetuous vortex of democratic legislation. It was a fear well-founded. However, tyranny of the single despot is a greater danger to Canadians than tyranny of the majority at the moment. And it must be kept in mind that an emperor or dictator can be just as impetuous as a democratic legislature.

Canada’s dictator is a quiet man. He doesn’t like to discuss things. He shuns open debate. He has closed the Parliamentary press gallery (and has twice shut down Parliament itself). He avoids taking questions from journalists that aren’t softballs vetted by his staff beforehand. Thus, he seldom gives reasons for his actions, and when he does, they’re seldom good reasons, and he seldom gives opportunity for rebuttal. In this sense, nothing he does is deliberate (in the republican sense). As such, his actions are just as impetuous as Madison’s feared democratic legislature. However, his impetuosity stems not from an undue degree of passion — for he is seemingly passionless. Rather, he is impetuous because he acts only according to his own lights, which are unfailingly echoed by the flattering whispers of his hand-picked courtiers.

In this, he reminds one of poor Æthelred “the Unready”, the hapless Saxon king who acquired his nickname not primarily because he was unprepared, but because he didn’t listen to advice. (It was a pun: in Old English, Æthelred meant “noble counsel” and Unræd  meant “uncounselled”).