This is my obligatory blog post about the "fiscal cliff". One can't expect to maintain one's blogging credentials without making some comment on an issue like this, but I have been hesitant even so because there didn't seem to be anything worth saying that hadn't already been said many, many times. Then I came across this op-ed from yesterday's New York Times:

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

My take is exactly the opposite: our government is broken because we don't obey the Constitution, or indeed any coherent system of rules, if we think we can get our way by breaking them. And the fiscal cliff gives a perfect illustration of how this works and why it's a problem.

Of course the op-ed's lead, quoted above, did its job by impelling me to read further, hoping to see examples of these "evil provisions" in the Constitution. Well, it does give one:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Apparently this writer can't recognize political posturing when he sees it. Congress has been more than happy to work around that Constitutional provision in the past; in at least one fairly recent case, the Senate replaced the entire text of a bill that had originated in the House so that they could address a revenue issue without violating the Constitutional provision. Much of the rest of the op-ed is devoted to listing similar instances of adhering to the letter of the Constitution while violating its spirit, so the writer is clearly aware that it can be done. Why should the problem suddenly be, in this case, that the Constitution is getting in the way, instead of simply that it's not being used as intended?

It may seem hard to believe, but this is the only specific example in the entire op-ed of an "evil provision" of the Constitution that makes our government dysfunctional. We do get another example, but it's a hypothetical one:

Imagine that after careful study a government official -- say, the president or one of the party leaders in Congress -- reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

A more pertinent question might be, has this ever actually happened? Once again, the rest of the op-ed is a survey of the many different ways in which our government has ignored the Constitution, or adhered to its letter while violating its spirit. A reasonable conclusion from all this would be that we are not paying enough attention to the Constitution; yet the writer offers it as support for the claim that we are paying too much attention to it?

It's worth taking a brief detour here to note this comment in the op-ed on Supreme Court jurisprudence:

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution -- in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore -- should give us pause. The two main rival interpretive methods, "originalism" (divining the framers' intent) and "living constitutionalism" (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results -- by definition -- must be wrong.

I have covered this territory before, and I certainly agree that there has been a lot of creative interpretation of the Constitution in Supreme Court decisions, much of it inconsistent when taken as a whole. But again, while this may give some support to the claim (which I'll get to in a moment) that ignoring the Constitution is not going to cause our society to collapse, it does not at all support the claim that we have been paying too much attention to it up to now.

But we are getting further away from the fiscal cliff, which is what I said this post was going to be about. Let's start heading back by looking at the central claim of the op-ed:

Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Set aside (for the moment) the question of whether we have grown and prospered because of ignoring the Constitution, or in spite of that. The claim appears to be that basically, ignoring it has worked all right up to now, so why not make it official? But once again, that's not at all the same as claiming that we have paid too much attention to it, and we'd be better off not doing that. Later on, the writer gives more details about how our key institutions -- Congress, the Presidency, the Supreme Court -- might work if we did this:

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

Going back to the example at the beginning of the op-ed, the Senate minority leader would no longer be able to hide behind a Constitutional provision to justify inaction. He might still try other ways of political posturing, but that particular way would be closed to him.

There is a point that could be taken away from this, but unfortunately it's not the one the writer intended. Giving up the Constitution would not stop political posturing; it would only change its form. Giving up the Constitution would amount to admitting that no written document, no set of rules, can work if people refuse to follow them when it serves their interests to break them instead.

This throws rather a different light on the conclusion of the op-ed:

If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

[P]erhaps the dream of a country ruled by "We the people" is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

But if we can't even make a good faith effort to understand others' views when we have a written document setting out the rules for how to do so, how will it work any better when we don't? The Constitution, and written law in general, is by no means the only tool people have to force others to do things they don't want to do. But written laws, like written contracts, have at least the advantage of being written: there is a text, however imperfect, whose words are a matter of objective fact, rather than just vague ideas in people's heads. (Of course, the whole issue of strict vs. loose construction of the Constitution, or "originalism" vs. "living constitutionalism" as the op-ed has it, shows that even written words don't always establish an objective meaning. But having no written words would be worse still.)

You may think I'm still on a detour here; the fiscal cliff is not a matter of Constitutional law. Indeed it isn't, and that's the point. Consider what got us here: back in the summer of 2011, to deal with the debt ceiling crisis, a law was passed that imposed a deadline on Congress and the President to deal with budget deficits, or else spending cuts would be imposed willy-nilly. But what caused the debt ceiling crisis? Well, another law was passed, quite some time ago, that imposed a ceiling on the debt and required Congress and the President to periodically revisit it. Why was that law passed? Well, because it had become evident that the national debt was continuing to grow despite all efforts to control it. And why was that? Well, because the government couldn't stop spending more money than it was taking in in revenues.

Where, in any of this, was the Constitution a factor? The Constitution doesn't say anything about a debt ceiling, or how the national debt is to be controlled. It doesn't say anything about how the government is supposed to control its spending. (It does put limits on the kinds of things Congress can spend money on, which, as I've argued before, have been interpreted out of all recognition by the Supreme Court. But that's just another example of us not paying attention to the Constitution.) Blaming any of this on the Constitution, or on our supposed adherence to the Constitution instead of to practical solutions to problems, is simply a misdiagnosis. The problem is that our government refuses to be restrained by any set of rules if politicians think that breaking them will help them reach their goals.

It's important to note that this applies to both sides of the aisle. The Republicans are the ones currently backed into a corner, but the tactic of bending or breaking the rules to one's advantage is used all the time by both parties. As an example on the other side, consider all the maneuvering done by the Democratic leadership of both houses of Congress to get Obamacare passed before the 2010 midterm elections gave control of the House to the Republicans.

But, I hear the op-ed writer protesting, Obamacare was a good thing! Of course it's all right to bend (or even break) the rules if you're doing a good thing, right? If you have reached "a considered judgment that a particular course of action is best for the country", why should you let yourself be stopped by a few pesky rules? Of course this is exactly what one expects to hear from people of Heinlein's class one when they want to tell other people what to do. But my point here is even more drastic than the one I made in that earlier post about my favorite Heinlein quote. Here I'm saying that even if a particular course of action is best for the country, considered by itself, getting it done by bending or breaking the rules is still a net loss, because it destroys people's faith in the stability of our society, and that faith is more important than the particular course of action we take on any single issue.

It's worth taking another brief detour here to note that even the premise of the argument I just sketched is usually not valid. It is actually extremely rare for anyone, in government or out, to have a "considered judgment that a particular course of action is best for the country" which ends up being correct. The track record of such "considered judgments" is extremely poor. Very often doing nothing would be better than whatever the government does. When the government passed huge bailouts and a stimulus package in 2008 and 2009, the "considered judgment" was that it would fix things without too much delay; nobody then was contemplating an economic situation in 2012 like the one we actually have.

In the case of the fiscal cliff (that last detour was actually a shortcut), both sides are basing their positions on predictions of the future that are no more reliable than the ones that were used four years ago. The Democratic position is basically the one described by Paul Krugman in another op-ed from yesterday's New York Times: if we let the "sequestration" spending cuts happen, and we let the tax rates go up for everyone, we will reduce the deficit too fast, leading to another recession. But if we really had that much of a handle on how government spending and tax rates impact the economy as a whole, we would be in better shape now than we are. It's not as though trying to regulate the economy through government spending and tax rates is a new idea. The argument seems plausible, but "plausible" isn't a very high bar, particularly when Nobel-Prize-winning economists like Krugman are spending a lot of time and (electronic) ink on this.

The Republican position is hard to discern (they have, perhaps wisely, refrained from being too explicit about exactly what their goals are), but based on comments made over the past couple of days by several Republican Senators about "sequestration", they may well think, behind closed doors, that going over the cliff might cause short-term pain, but could ultimately prove to be a good thing. It would force the government to cut spending whether it wants to or not, and the tax hikes would make a start at addressing the deficit. But such a strategy, while it would be refreshing coming from a party that claims to support conservative values but hasn't done much to actually support them, would only work if they stuck to it, not just for the next couple of days, but for the next couple of years -- the ultimate object in view being, of course, to shift the balance in Congress again in the 2014 election by pointing to the benefits gained by standing firm on this issue.

I seriously doubt that the Republican party is capable of holding to any strategy for that long. Even if we go over the "cliff" tomorrow, there is still plenty of time for a deal to happen before the effects actually build up, and such a deal would mean that any supposed benefits of the spending cuts and the tax hikes would not actually happen. Even assuming that going over the cliff would, in the long run, be a net positive, to achieve that, we would have to go over it, and then start climbing back up from the bottom of the canyon; stopping the fall part way down won't do it. I don't think the Republican party has the stomach for that.

In the end, I suspect we will, as usual, end up somewhere in the middle. And that is what really makes the willingness of both sides to break the rules when it suits them so maddening: it doesn't even accomplish anything. After all of the grandstanding, we will probably end up with much the same deal that would have happened if it had been done a while ago, when it should have been. After all of the bending of the rules, we will be no better off than if everything had been done the way it should have been, within the rules. In fact, we'll be worse off, because we will have yet another proof that the rules have no force, and that is the real problem.

The same goes for all of the ignoring of the Constitution that the op-ed talks about. What has it really gained us? Consider some of the examples the op-ed gives. The Alien and Sedition Acts were indeed contrary to the First Amendment; perhaps that's why the main practical impact they had was to remove the Federalists, who passed them, from power in the next election. The New Deal legislation, which led FDR to pack the Supreme Court with Justices favorable to his views, started the very trend of increasing spending that has led to our current situation. And nearly 60 years after the Brown v. Board of Education decision, which Justice Jackson said had no basis in the Constitution (that's debatable, but let's concede it to the op-ed writer for the sake of argument), our schools, while they may no longer be segregated, are not exactly paragons of educational achievement.

Given all this, it seems to me that the problem with the Constitution is not that we pay too much attention to it; it's that we never gave it a chance at all. The op-ed admits that "No sooner was the Constitution in place than our leaders began ignoring it." This is a bug, not a feature. Perhaps it's impossible for us to actually abide by a set of rules; perhaps the temptation to gain a temporary advantage by bending or breaking them is always going to be too strong. But if so, then that is what will end up destroying "our heritage of self-government".

If we really want to preserve that heritage, we ought to try placing a higher value on the fundamental stability of our society, and the trust and integrity that it requires, even if that means giving up some temporary political advantage, or even giving up a quicker solution to a specific problem. And if there's one thing the history surveyed by the op-ed writer teaches, it's that we need explicit rules to do that. It's all very well to talk about "aspirations that, at the broadest level, everyone can embrace"; but the same people who talk about sharing such broad aspirations will, in the next breath, proceed to disagree on every specific point of any substance. The fiscal cliff has shown us this in spades: one minute everybody is talking about how no one wants to go over the cliff, but the next minute everybody is talking about how they can't come to agreement on any specifics for avoiding that.

The Framers of the Constitution believed that people could not be trusted to work things out based on nothing more than shared aspirations. They knew that solutions that are worked out under pressure, solutions that are pushed by one faction over the objections of another based on the political climate of the moment, are likely to be bad in the long run for the country as a whole. So they gave us a specific structure that was designed to force us to take a step back instead of charging ahead whenever we saw something that needed fixing. Our government is broken today because we have lost sight of the basic truths that the Constitution was built on. Maybe we ought to give the Constitution a chance.

A while ago I explained why I'm not crazy about the cloud. In that post I stressed that, since you're not a paying customer to "cloud" services like Facebook and Google, you don't get to decide how they're run. Now I want to talk about another aspect of the cloud that seems risky to me: you don't get to decide how the data you post to a "cloud" service is used.

Read more...

I've posted a few times now about the Supreme Court, and at one point I noted that I had labeled myself a "strict constructionist". Now that the Defense of Marriage Act (DOMA) and California's Proposition 8 are going to the Supreme Court for review, having been found unconstitutional in a number of lower court cases, I have a chance to swing the pendulum back the other way somewhat.

Read more...