On Ackerman's Justification of Irregular Constitutional Change: Is Any Vice You Get Away With a Virtue?

In We the People: 2. Transformations, Bruce Ackerman makes a case for irregular change of the U.S. Constitution, as opposed to the amendment procedure stipulated in Article V. He argues that such irregular—even revolutionary—change has occurred in the past, most notably after the war of secession and during the New Deal era, and he proffers those episodes as suitable models for future constitutional change. In making his argument for moving beyond formalism, Ackerman misconstrues the meaning of ordinary electoral victories, employs misleading rhetorical flourishes, places unwarranted weight on the Supreme Court's validation of irregular constitutional change, and overlooks the capacity of electoral winners to rig subsequent elections.     

Who are “We The People”? Bruce Ackerman, Thomas Jefferson, and the Problem of Revolutionary Reform

Bruce Ackerman of the Yale Law School proposes new procedures for constitutional reform to supersede the amendment process set forth in Article V of the U.S. Constitution. He argues that the revolutionary character of regime changes in the 1780s, 1860s, and 1930s has been disguised by the fiction of constitutional continuity. Americans will not be prepared for future constitutional crises if they fail to develop new amendment procedures to facilitate future reform efforts.Thomas Jefferson's constitutionalism provides a critical perspective on Ackerman's project. Like Jefferson, Ackerman sees constitutional change as an opportunity for the People to return to revolutionary first principles; unlike Jefferson, he equates American nationhood with the progressive concentration of power in the federal state.     

The diffusion of Internet telephony among consumers and firms: Current issues and future prospects

This paper analyses the current demand and market potential for Internet telephony—the transmission of voice over the public Internet or over a private Intranet—a technology that has attracted considerable attention as an appealing alternative to traditional telephony but that is likely to develop as a component within an integrated system of video, data and voice applications. The paper investigates technical, economic and social factors supporting and hindering the adoption of Internet telephony. In doing so, it relies upon the idea that the diffusion of Internet telephony is determined both by the attributes of the technological applications as perceived by the potential adopters, and by the characteristics of different users. According to this view, the research points out that relevant uncertainties reside on the demand side, particularly among residential users, and that in the future, businesses are more likely to adopt these applications than consumers. The assumptions concerning the future diffusion of Internet telephony are supported by the results of a survey carried out among a sample of Internet telephony service providers in Europe and North America.     

Constitutional stability

Political scientists in the pluralist tradition disagree sharply with public and social choice theorists about the importance of institutions and with William Riker in particular, who argues inLiberalism against Populism that the liberal institutions of indirect democracy ought to be preferred to those of populism. This essay reconsiders this dispute in light of two ideas unavailable to Riker at the time. The first, offered by Russell Hardin, is that if we conceptualize constitutions as coordinating devices rather than as social contracts, then we can develop a more satisfying view of the way in which constitutions become self-enforcing. The second idea derives from the various applications of concepts such as the uncovered set. Briefly, although institutions such as the direct election of president are subject to the usual instabilities that concern social choice theorists, those instabilities do not imply that “anything can happen” —instead, final outcomes will be constrained, where the severity of those constraints depends on institutional details. We maintain that these ideas strengthen Riker's argument about the importance of such constitutional devices as the separation of powers, bicameralism, the executive veto, and scheduled elections, as well as the view that federalism is an important component of the institutions that stabilize the American political system. We conclude with the proposition that the American Civil War should not be regarded as a constitutional failure, but rather as a success. I have benefitted from the comments of a number of people on earlier drafts of this essay, especially William Riker, Emerson Niou, Kenneth Shepsle, Gordon Tullock, Thomas Schwartz, and Matthew Spitzer.     

Constitutional Economics--Constitutional Politics

Why does the treatment of American constitutional politics presented in We the People depart so radically from models of constitutional deliberation developed in the type of constitutional economics pioneered by James Buchanan and Gordon Tullock? The paper defines three premises that account for the divergence, and concludes by proposing an inquiry into constitutional design that requires insights from both traditions.     

Madison's constitutional political economy: Principles for a liberal order

When persons are modelled as self-interested in politics ... the constitutional challenge becomes one of constructing and designing framework institutions or rules that will, to the maximum extent possible, limit the exercise of such interest in exploitative ways and direct such interest to furtherance of the general interest. It is not surprising, therefore, to discover the roots of a public choice perspective ... in the writings of the American Founders, and most notably in James Madison's contributions toThe Federalist Papers. This paper draws on my earlier work covering Madison's political and economic thought (Dorn 1988, 1990). I wish to thank Thomas M. Humphrey and an anonymous referee for their comments on an earlier version of the paper, and William A. Niskanen and Roger Pilon for fruitful discussions of the general topic. The usual caveat applies.     

From Democratic Dualism to Political Realism: Transforming the Constitution

In the latest volume of Bruce Ackerman's We the People, he sets out to demonstrate that the Constitution has been legitimately amended by unconventional means, or by mechanisms other than the Article V amendment process. In making this argument, Ackerman offers a rich constitutional history of the Founding period, the Reconstruction era, and the New Deal. He successfully demonstrates that unconventional methods were used to alter accepted constitutional meaning and government practices during these periods. Unfortunately, Ackerman does not provide an adequate theory that can demonstrate the legal significance of these historical events for future constitutional practice. Moreover, his effort to legitimate the New Deal's constitutional revolution undermines his own normative theory of dualist democracy and seems to embrace a standard Legal Realist analysis that the Constitution simply is whatever powerful government officials declare it to mean.     

The Democratic Efficiency Debate and Definitions of Political Equilibrium

An ongoing debate has been occurring within public choice for over a decade concerning the efficiency of democracy. Virginia Political Economy holds that political markets perform very differently from traditional markets. Chicago Political Economy, exemplified by the work of Becker and Wittman, maintains that political equilibrium, properly defined, is relatively efficient. I argue that the debate can be understood at least partially in methodological terms: Chicago views politics exclusively within the equilibrium framework of traditional economics, while Virginia draws at least implicitly on Austrian economics' view of the economy as a disequilibrium process. I contend that the factors which public choice scholarship has identified as distinguishing politics from markets—rational ignorance, majority rule, collective outcomes—affect the performance of politics as a process even if political equilibrium is relatively efficient.     

Constitutional Design for a Rent Seeking Society: The Voting Rule Choice Revisited

Buchanan and Tullock's original trade-off model of constitutional design is used to analyze how constitutional design affects post-constitutional rent seeking, and, in turn, how the anticipation of post-constitution rent seeking should lead to modification of constitutional design — specifically with respect to imposing and maintaining effective (composite) supermajority decision rules.     

Competence Catalogues and the Principle of Subsidiarity in a European Constitution

The purpose of this paper is to compare two instruments—the principle of subsidiarity and competence catalogues—which can be used in order to define a balance between powers vested in the European Union and those vested in the member-states. These instruments will be evaluated in the context of constitutional economics. The goal is to clarify the constitutional problem of dual jurisdictions in Europe. The principle of subsidiarity will be criticized because of the static nature of that device: the three main problems in making use of competence catalogues are to find criteria for deciding which competences should be allocated on which level, to protect the system against judicial erosion and to adapt it to changing environments.     

How Not to Write a Constitution—The Maastricht/Amsterdam Treaties

The member states of the European Union have negotiated two treaties intended to advance political union—Maastricht in 1992 and Amsterdam in 1997. This article critiques both treaties for their failures on both procedural and institutional questions. It suggests that the costs for member states of reaching a constitutional bargain can be reduced by emphasising decentralised arrangements for Europe and that a constitutional opportunity remains.     

Constitutional politics within the interest-group model

I examine constitutional politics using the interest-group model of politics. Constitutional economics argues that rent seeking is inevitable in majoritarian democracy and genuine reform is possible only at the constitutional level. By implication the constitutional equilibrium must differ from the political equilibrium. I examine reasons that such a difference might exist but find weak prospects for a general-interest victory over the special interest in constitutional politics. Although implicit constitutional change (for example, through Supreme Court reinterpretation) and explicit violation are substitute means of altering the constitution, the former dominates the latter. This suggests that a third factor participates in constitutional politics in addition to the general and special interests, which is support for the Constitution itself. Effective rules to restrain rent seeking need to ensure the congruence of the constitutional and general interests.     

Constitutional Implications of Electoral Assumptions

The paper discusses the implications of three models of elections (the median voter model, the proportional representation model, and the probabilistic voting model) on three functions of constitutional rules (constraining the majority of the people, monitoring political and bureaucratic agents, and keeping separate the levels of constitutional rules and of ordinary politics).     

The Formation of Economic Policy: A Cognitive-Evolutionary Approach to Policy-Making

This essay proposes a cognitive-evolutionaryapproach to economic policy making where the entire process ofpolicy-formation and implementation is analyzed as a collectiveprocess of mobilization and problem-solving that extends fromthe individual level over the level of collective decision makingto the constitutional level. In the procedural view proposed,many issues or problems of economic policy are not fully solvedbecause of four main filters or barriers that filter out certainissues while letting others through. The main task for politicalentrepreneurs is to surmount these barriers. Important aspectsof the politico-economic process are cognitive processes of perceptionand interpretation by the individual; processes of interpretation,mobilization, and negotiation at the collective level; and evolutionarydynamics at the constitutional level.—This interdisciplinaryoriented approach provides a framework that suggests new categoriesfor analyzing policy-making in a systematic way by linking thebehavior and thinking of the individual with the ongoing politicalprocess at the collective and constitutional level, and leadsto conclusions for advising politicians.     

Designing tax policy in federalist economies: An overview

The emerging economic federations of the European Union, Russia, and South Africa, along with the established federations in Australia, Canada, and the United States, confront the task of designing the institutions for federal fiscal policy. This paper reviews the literature on the design of tax policy in federalist economies. We conclude that taxation by lower level governments can lead to significant economic inefficiencies and inequities. The usual ‘assignment’ view of federalis recommends central government policies — for example, resident-based taxation or grants-in-aid — to correct these failures. These recommendations assume that the central government will act as a benevolent social planner. The ‘political economy’ view of federalism suggests that this assumption is in error and that additional federalist institutions must be considered. Alternative legislative structures and constitutional rules are considered.     

Political entrepreneurship,emergent dynamics,and constitutional politics

Constitutional political economy mostly distinguishes between rules and actions, with rules selected prior to actions within those rules. While we accept the coherence of this distinction, we pursue it within an open rather than closed scheme of analysis. Doing this entails recognition that societies rarely exhibit universal agreement about constitutional provisions. Recognizing the incomplete character of constitutional agreement points to the existence of margins of contestation. Along those margins, political entrepreneurship will be active in promoting support for alternative constitutional interpretations. Within open systems of creative and entrepreneurial action, constitutional reinterpretation is continually injected into society. Acquiescence in the presence of power does not imply agreement about its use. Rather, acquiescence means the constitutional contestation becomes an element of ordinary politics and not an activity that is prior to ordinary politics. It also means that emergent dynamics supplements comparative statics as a method of analysis.     

Political Learning: The Neglected Precondition of Constitutional Reform

This paper analyses the claim of constitutional economics that liberal economic policy requires far-reaching constitutional reform. The paper starts with a restatement of this claim and reinforces the rationale of the currently most influential variants of constitutional economics as represented by contractarian constitutional economics (Brennan, Buchanan), on the one hand, and Hayek s evolutionary theory, on the other. However, these constitutional proposals have shortcomings because the institutional preconditions of constitutional reform are not sufficiently reflected. Instead, I argue that, in face of economic crisis, a revision of in-period politics requires no more collective rationality than constitutional reform does. As a consequence, the introduction of new constitutional rules depends on political learning. The article concludes that constitutional rules in the sense of CPE can stabilise political learning but they cannot replace it.     

Politics as exchange: the classical liberal economics and politics of James M. Buchanan

James Buchanan advocated the market mechanism for allocating resources because it is based on voluntary exchange. People engage in market transactions only when they believe they benefit from doing so. Buchanan depicted the political process the same way. People engage in collective activities to accomplish together ends that they would be unable to accomplish individually, or through bilateral exchange. Buchanan’s vision of politics as exchange is a normative framework for evaluating the rules within which political activity takes place. Rules that meet the criterion of agreement are desirable constitutional rules, and Buchanan recognized that not all government activity satisfies that criterion. Buchanan is the father of the subdiscipline of constitutional political economy, and his “politics as exchange” approach provides the foundation for much work in that area. Buchanan has created a foundation that is rich in ideas, but leaves behind a number of unanswered questions that point the way toward a further development of the research program in constitutional political economy.     

The initiative,referendum, and distribution of income: An empirical analysis of Swiss cantons

This study examines how direct democratic institutions affect income distribution before and after taxes. Based on a panel of Swiss cantons from 1945 to 2014, we test the effects of the constitutional reforms of direct democratic instruments. Our findings show that better voter access to the initiative induces policy shifts that significantly decrease top incomes and benefit the upper middle class. For the popular referendum we do not find such effects. The income effects of direct democracy are not a consequence of shifts in fiscal redistribution, but rather result from policy changes affecting pre-tax incomes.