Constitutions are Laws, Not Alternatives to Laws

By Robert H.

Here is a mistake lots of libertarians make.  "Democracy sucks; it must be bound by strict, constitutional limits on government; so let's have more constitutional limits on government."

The problem is that Constitutions are laws.  That means that if you have a fundamental problem with the way laws are made, "rely more on constitutions" can't be the answer.  I mean, how do you select the constitutional constraints and principles of a limited government?  The current answer in America is "with a supermajority," but super majoritarian voting is even more susceptible to most criticisms of majoritarian voting than majoritarian voting itself.  Take the two criticisms kling cites in my link: 1. supermajorities don't solve the problem of voter ignorance.  Now, instead of a majority of informed people, we have to scare up a SUPERMAJORITY to create good policy. 2. Supermajorities don't solve the problem of forcing voters to join a coalition to effect change.  Now they have to join an even bigger coalition!  

Things aren't better on the enforcement side.  How do you enforce constitutional principles of limited government?  The current answer is "with elected politicians or those they appoint."  But those are the same guys who make laws!  If they can't be trusted to do the latter, why the former?

It's laws all the way down, and the fact that one set of constitutional law makers made one constitution in 1789 which libertarians like one interpretation of is not a reason to think "constitutionalism" will solve libertarian problems with democracy.  So, just for a practical example, the most popular model constitution for new nations to adopt has been, since the wall fell, the German basic law.  Germany also attracts lots of migrants, and would attract more if immigration restrictions were lifted.  But the German constitution would make a libertarian's heart seize up: it's littered with second generation rights (ie, mushy socialist stuff like rights to a clean environment or to healthcare) and isn't particularly federalist.  If both super majoritarianism and migration have created and fortified a popular constitutional model libertarians hate, what's the alternative libertarian method for creating and preserving "good" constitutions?  Military coups?

So here's the math: to make a constitutional regime libertarians like, they would have to convince a supermajority.  To just pass good laws they approve of, they would have to convince a majority.  Instead of writing off democracy and embracing the first model, libertarians who go the second route will have a far easier time.  Scoreboard time: In the last 50 years American democracy killed segregation, slashed tariffs, ended the draft, embraced LGBT rights, lowered top marginal tax rates, had an amnesty for migrants, embraced Friedman's monetary ideas, etc. etc.  Libertarian ideas can and have won at the polls. In that same amount of time, more or less no libertarian constitutional amendments were passed*.   Learn your lesson, people.

*Maybe the 24th?