Comments on: Kozinski, Amar, Niskanen: Still Rockin'

By: Taylor

Taylor — Mon, 19 Dec 2005 16:15:04 +0000

Re: 17th amendment… my old Power Politics and Moneymaking in Washington professor John Fortier (an AEI research fellow) makes some interesting points on the continuity of government.

Say everyone gets blown up except 3 members of Senate. Under current law, in that situation there’s not much difference between the Senate and a Roman Triumverate…

By: Taylor

Taylor — Mon, 19 Dec 2005 16:15:00 +0000

Re: 17th amendment… my old Power Politics and Moneymaking in Washington professor John Fortier (an AEI research fellow) makes some interesting points on the continuity of government.

Say everyone gets blown up except 3 members of Senate. Under current law, in that situation there’s not much difference between the Senate and a Roman Triumverate…

By: Will Wilkinson

Will Wilkinson — Mon, 19 Dec 2005 05:10:25 +0000

Bill, I think Buchanan and Hayek actually had a couple debates over exactly the issue you raise. I’ll see if I can dig up the cite of Buchanan’s paper defending constructivist constitution-building.

By: Will Wilkinson

Will Wilkinson — Mon, 19 Dec 2005 05:10:00 +0000

By: BillKorner

BillKorner — Mon, 19 Dec 2005 03:12:09 +0000

This has been a very interesting exchange. To me, the most interesting comments were Niskanen’s on non-discrimination. What’s interesting about Niskanen’s profound insight is how wide a range of people accept it. Right or Left, Republican or Democrat, liberal or communutarian, pretty much everybody agrees with N’s point that non-discrimination (and also equality) are tricky concepts in exactly the ways that N describes.

Of course people disagree about the implications of this insight. N could be read as saying that so long as we do not pass Buchanen’s “Non-Discrimination Amendment” we can sidestep the issue entirely. That, of course, would be naive and silly. Other people think that the “rule of law” is a meaningless concept because of N’s proposition. That’s not naive (in fact it’s quite sophisticated), but it is equally silly.

As a Danish Cato intern once pointed out to me, constitutionalism of any kind is in some tension with Hayekianism. The reason is that constitutions are exercises of “constructivist rationalism” even if they attempt to thwart constructivist rationalism. Accordingly, many of Kozinski and Amar’s well-taken points lead one to question how we can be sure that constitutions are a good idea at all.

By: BillKorner

BillKorner — Mon, 19 Dec 2005 03:12:00 +0000