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CAN WE DESIGN AN OPTIMAL CONSTITUTION? OF STRUCTURAL AMBIGUITY AND RIGHTS CLARITY

Published online by Cambridge University Press:  30 November 2010

Richard A. Epstein
Affiliation:
Law, New York University

Abstract

The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

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This term [i.e., “property”] in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

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45 Id. at 967 (White, J., dissenting): “Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the executive branch and independent agencies.”

46 Id. at 959 (Powell, J., concurring): “When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers.”

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48 For an early discussion of the issue, see State ex rel. Railroad and Warehouse Commission v. Chicago, Milwaukee, and St. Paul Railroad, 37 N.W. 782, 787 (1888)Google Scholar. Mitchell, J., laid out powerful reasons why a legislature could not undertake to set thousands of different rates by itself. But he did miss one piece of the ultimate solution. If rates are to be set by a special commission, they should be subject to judicial review, given the fear of confiscation.

49 See, e.g., Ackerman, Bruce, “The New Separation of Powers,” Harvard Law Review 113 (2000): 633729CrossRefGoogle Scholar, which opens by taking to task Steven Calabresi's paean to American constitutional solutions in Calabresi, Steven G., “An Agenda for Constitutional Reform,” in Eskridge, William N. Jr., and Levinson, Sanford, eds., Constitutional Stupidities, Constitutional Tragedies (New York: NYU Press, 1998), 22Google Scholar. Ackerman's preferred alternative is a “constrained parliamentarism,” which rejects the presidential systems based in France and the United States (“The New Separation of Powers,” 640), and which adds in doses of federalism and national referenda.

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51 For my evaluation of the New Zealand system, see Epstein, Richard A., MMP—The Right Decision? (Wellington: New Zealand Business Round Table, 1999)Google Scholar. MMP refers to a “mixed member proportional” system, which does not allow for a single party to obtain exclusive control over government. Any system (such as MMP) that lets minor parties gain leverage at the polls tends to give those minor parties disproportionate influence in setting up a government.

52 See Bernd Hayo and Stefan Voigt, “The Determinants of Constitutional Change: When and Why Do Countries Change Their Form of Government?” http://www.mps2009.org/files/Voigt.pdf.

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58 As Locke insisted, in the state of nature, “[t]here wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them.” Locke, John, Second Treatise of Government (1690), sec. 124Google Scholar. The needed rules should be (as they are often not today) “plain and intelligible” (ibid.). State power also remedies the want of a “known and indifferent Judge, with authority to determine all differences according to the established law” (ibid., sec. 125).

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60 U.S. Constitution, art. I, sec. 9, cl. 2: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

61 National Labor Relations Act, 29 U.S.C. sec. 153(a).

62 U.S. Constitution, art. 2 sec. 2, cl. 2.

63 U.S. Constitution, art. 3, sec. 1.

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67 For a discussion of these issues, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)Google Scholar; Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Google Scholar; and Boumediene v. Bush, 128 S. Ct. 2229 (2008)Google Scholar.

68 See, e.g., Olson, The Logic of Collective Action.

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70 For the recent infatuation with Edmund Burke, whose evolutionary approach meshes at best imperfectly with a written constitution, see Merrill, Thomas W., “Bork v. Burke,” Harvard Journal of Law and Public Policy 19 (1996): 509Google Scholar. See also Sunstein, Cass, “Burkean Minimalism,” Michigan Law Review 105 (2006): 353Google Scholar.

71 See Epstein, Richard A., How Progressives Rewrote the Constitution (Washington, DC: The Cato Institute, 2006)Google Scholar.

72 Lochner v. New York, 198 U.S. 45 (1905)Google Scholar.

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76 For the validation of the Bipartisan Campaign Reform Act, Pub. L. 107-155, 116 Stat. 81 (2002), see McConnell v. Federal Election Commission, 540 U.S. 93 (2003)Google Scholar.

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78 I sought to deal with many of these problems from a constitutional point of view in Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985)Google Scholar.

79 See Franklin D. Roosevelt, State of the Union Address, January 11, 1944:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

80 For a thoughtful defense of this position, see Kim Lane Scheppele, “Social Rights in Constitutional Courts: Strategies of Articulation and Strategies of Enforcement,” http://polisci.berkeley.edu/faculty/gsilver/ScheppeleFull.pdf.