Huemer on Strengthening the Chains of the Constitution

Michael Huemer
If American government was to be bound by the “chains of the Constitution,” then surely those chains have loosened if not snapped. Michael Huemer, a philosopher at the University of Colorado at Boulder, has some ideas for how to tighten those chains. He discussed these ideas July 13 at an event hosted by Liberty On the Rocks, Flatirons.

Huemer observes that structural and procedural Constitutional provisions (regarding how government functions) tend to be taken more seriously than are substantive Constitutional provisions (regarding what government may and may not do). So his ideas focus on changing government structures and procedures in the hopes of indirectly altering the substance of what government does.

He offers three main proposals. First, new legislation should require a two-thirds vote by Congress. Second, “there should be a negative legislature that has the power only of repealing laws.” Third, besides the Supreme Court, there should be a new Constitutional Court, “where the cases are decided by a jury of citizens,” that can initiate Constitutional review and that can mete out punishments to elected officials who violate the Constitution.

Generally I regard these as excellent ideas.

Huemer did an especially good job of explaining why the default should be for government to take no action—the opposite of today’s presumption. Government action, he stressed, involves coercing people. In general, he argued, it’s better to not coerce someone, even if coercion might be justified in a given case, than it is to coerce someone unjustly.

Huemer likened modern government to a Medieval doctor. Society, like the human body, is enormously complex, and making a random change to it is more likely to do harm than good. Medieval doctors were more likely to harm their patients than to help them, Huemer noted, and, similarly, government actors are more likely to do harm than good. Thus, he concluded, it’s good to move the default closer to government taking no action via the institutional changes he suggests. (Huemer offered many additional arguments to buttress his case; for these I’ll point individuals to the video of his presentation.)

I think Huemer went off track only a few times. The most important example is his treatment of the separation of powers. True, as he noted, different government institutions very often support rather than oppose each other. But that does not change the fact that the separation of powers, instituted not only in the tripartite federal government but in federal-state divisions and in representational elections, very often stops or slows the imposition of bad government policies. For example, the Supreme Court threw out much of FDR’s New Deal, and more recently it threw out censorship of political speech via the Citizens United decision.

Huemer errs in this matter largely because he assumes government entities generally seek to expand their own power. True, they often do. But very often government actors are driven by ideological convictions, not (or not only) by a lust for personal power. Because people in different government entities  are motivated by ideological convictions (to a lesser or greater degree), the separation of powers works somewhat better than Huemer thinks.

Another problem with Heumer’s presentation is that his idea of a “negative legislature” needs a lot more development to be viable. It would be a straight-forward fix if it were the case that new laws always expand government powers on net, while repeals of laws always reduce them. But that’s not the case. New laws very often curtail government powers made possible by preexisting laws. For example, federal civil rights laws preempted state-level discrimination laws—and that was a pro-liberty development. In Colorado a few years back, new legislation curtailed the power of police to seize property through asset forfeiture. To make matters more complex, generally old statutory language is removed via the passage of a new bill. So it’s not clear whether a “negative legislature,” unless its scope were very clearly and appropriately defined, would on net act to expand or reduce government power.

Huemer also suggested that he supports anarchy over limited government; he did not get into that issue during his talk, so I won’t get into it here. I’ll have more to say against anarchy later.

In all, Huemer’s talk is well worth watching. It is an excellent example of how an academic can make rigorous arguments to a popular audience. Academics should interact with the thinking public, and vice versa—as such provides checks and balances within American intellectual discourse.