The Volokh Conspiracy - Judge Kozinski at Cato Unbound Responds to James Buchanan's Three Proposed Constitutional Amendments:

Dr. Buchanan's original proposals are here; Judge Kozinski's response is here; lawprof Akhil Amar's response to Dr. Buchanan is here. Here's Judge Kozinski's introduction

Dr. Buchanan advances a vision of government -- especially the federal government -- that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone's economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I'm far from convinced that it would achieve the goals set for it -- that we'd be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don't have it so bad at all. We have the world's strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.

One thing I'm pretty sure of, though, is that Dr. Buchanan's vision is not shared by most of the American public. While nearly everyone has some beef with government at its many levels, there are very few who would, had they the power, fundamentally change the relationship between the government and the governed in the ways Dr. Buchanan envisions. Thus, unless we assume that his three proposed constitutional amendments are to be imposed by some power outside the American democratic process -- by a Philosopher King, as it were -- we have to imagine a very different world, and a very different popular attitude toward what the government is expected to accomplish. In other words, an America where it were possible to gain the super-majorities needed to pass Dr. Buchanan's proposed constitutional amendments would, in effect, be an America populated by 200+ million committed libertarians. In that world, the kind of constitutional amendments Dr. Buchanan proposes would be politically feasible, but probably unnecessary; people who would adopt those amendments would also be people who wouldn't really need them, because their view of what government is supposed to do would be so much narrower than is the norm today. Or, to put it differently, a body politic that needs Dr. Buchanan's amendments is a body politic that won't adopt them in the first place.

But it's not my purpose to quibble with the premises of Dr. Buchanan's proposals. I will assume, therefore, that we are politically of a mind with Dr. Buchanan in wishing to achieve the minimalist state, or something close to it, and we have been commissioned to select the three best constitutional amendments to constrain future generations that may not be as clear-sighted as we are. The question then is: Are the amendments, as proposed, workable? Or are there better ways of achieving the same ends? I will discuss each proposal briefly, and then offer my own counter-proposal. . . .

I think I'm largely with Judge Kozinski on this one.

	[Eugene Volokh, December 9, 2005 at 4:25pm] Trackbacks Judge Kozinski at Cato Unbound Responds to James Buchanan's Three Proposed Constitutional Amendments: Dr. Buchanan's original proposals are here; Judge Kozinski's response is here; lawprof Akhil Amar's response to Dr. Buchanan is here. Here's Judge Kozinski's introduction Dr. Buchanan advances a vision of government -- especially the federal government -- that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone's economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I'm far from convinced that it would achieve the goals set for it -- that we'd be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don't have it so bad at all. We have the world's strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right. One thing I'm pretty sure of, though, is that Dr. Buchanan's vision is not shared by most of the American public. While nearly everyone has some beef with government at its many levels, there are very few who would, had they the power, fundamentally change the relationship between the government and the governed in the ways Dr. Buchanan envisions. Thus, unless we assume that his three proposed constitutional amendments are to be imposed by some power outside the American democratic process -- by a Philosopher King, as it were -- we have to imagine a very different world, and a very different popular attitude toward what the government is expected to accomplish. In other words, an America where it were possible to gain the super-majorities needed to pass Dr. Buchanan's proposed constitutional amendments would, in effect, be an America populated by 200+ million committed libertarians. In that world, the kind of constitutional amendments Dr. Buchanan proposes would be politically feasible, but probably unnecessary; people who would adopt those amendments would also be people who wouldn't really need them, because their view of what government is supposed to do would be so much narrower than is the norm today. Or, to put it differently, a body politic that needs Dr. Buchanan's amendments is a body politic that won't adopt them in the first place. But it's not my purpose to quibble with the premises of Dr. Buchanan's proposals. I will assume, therefore, that we are politically of a mind with Dr. Buchanan in wishing to achieve the minimalist state, or something close to it, and we have been commissioned to select the three best constitutional amendments to constrain future generations that may not be as clear-sighted as we are. The question then is: Are the amendments, as proposed, workable? Or are there better ways of achieving the same ends? I will discuss each proposal briefly, and then offer my own counter-proposal. . . . I think I'm largely with Judge Kozinski on this one.