To a large extent, people do what is generally expected from them, simply because it simplifies their lives in society. This is how and why rules develop that facilitate social coexistence. The danger is that these rules turn out to be stifling and economically inefficient, which means that they impede trade, innovation, and prosperity. Primitive tribes provide an extreme example. The opportunity is that some social rules—and institutions, which are sets of rules—may allow a large measure of both individual liberty and social regularity.
A long tradition of (classical) liberal thinkers, often economists, from David Hume to Friedrich Hayek, has emphasized the benefit of evolved social conventions, as opposed to diktats from political authority. Such conventional rules, in large part based on trade and trust, have been responsible for the development of individual liberty, the Industrial Revolution, and the escape from poverty of a large share of mankind.
I was reminded of the importance and perhaps fragility of good institutions by a piece by Steven Greenhut reproduced in Reason Magazine. Greenhut asks:
What can you say when a major political movement (Trumpism) finds it easier to believe that every major American institution is potentially corrupt than it is to think that a president with a history of telling whoppers is being dishonest again?
What we have seen in the 2020 presidential election and its aftermath is, as far as we can tell, a defeated president (by about seven million votes) trying to stay in power by claiming, on the basis of absurd conspiracy theories, not much better than those of Alex Jones, that he actually won a majority of the votes. But note how election officials (probably nearly all of them, from the lowest to the highest), judges including some nominated by Mr. Trump, state officials including Republican ones, and even some officials of the Trump administration, honestly did what was expected of them and, at each stage of the long post-election process, contributed by words or deeds to ensure that the election was free of fraud and to defend it against unsubstantiated and self-serving accusations.
This, of course, is not to deny that the state is dangerous and far too powerful. It must be continually held in check, both by private institutions and by its own institutions. The hope of classical liberalism is that this is not impossible. An optimist may hope that the 70 million Americans (or perhaps half of them if we exclude those who just voted against the Democratic party) who voted for Trump after having been officially and openly lied to by him and his sycophants during four years, will wake up to the danger of Leviathan.
READER COMMENTS
Thomas Hutcheson
Dec 16 2020 at 7:20am
Not just “what was expected” but actually followed the explicit, not “evolved” law.
If there is anything consistent about the “Right” it is that it has no problem with the Leviathan if it serves their even short term political interests. The number of principled Libertarians (who are not part of “the “Right”) who supported Trump must be miniscule.
Pierre Lemieux
Dec 16 2020 at 2:48pm
@Thomas: I agree with your second paragraph. As for the first, I suggest that qualifications are in order. “Good” laws would be those who enact generally (in theory, unanimously) accepted rules; honesty would be part of the latter. Yet, note that honesty cannot be literally enforced. Without basic honesty, lots of election and public officials would have caved in before Trump’s claim that his losing was due to widespread fraud and “theft” (“stop the steal”).
Phil H
Dec 16 2020 at 8:46am
Americans can and should feel two strong emotions about the entire episode: (1) Worry at the weirdness of the behaviour of many voters, and the Republican party; (2) Very strong satisfaction with the performance of their exceptional constitution, which has once again shrugged off quite a concerted effort to subvert it.
I think you can contrast this with the dismal reality of Britain. With no real constitutional check on the power of the prime minister, there is nothing to stop Boris making even more serious errors than Trump did. We’re about to crash out of the EU on no deal (so it seems as of Wednesday). Unfortunately, the weirdness of our voters and our right wing party is even more extreme than America’s, and so our idiot seems to be suffering no electoral consequences.
Pierre Lemieux
Dec 16 2020 at 2:58pm
@Phil: I tend to agree with you, and weep about the country (Britain) that was the cradle of Western liberty. (Or, at least, the main cradle; liberty was a baby with many cradles; see my reviews of Mokyr’s and Scheidel’s latest books.) History is not finished, though, and the damage done and being done to the US constitution remains to be ascertained.
Craig
Dec 16 2020 at 7:45pm
@Phil “Very strong satisfaction with the performance of their exceptional constitution, which has once again shrugged off quite a concerted effort to subvert it.”
The Constitution has done no such thing. What was clearly designed as an instrument of limited government has resulted in something that clearly isn’t.
@Professor: “History is not finished, though”
The future is forever. But I’m not. Today I have to find some money, tomorrow I have to put my kids through college and next week I have to go for a permanent dirt nap. I care about the grand arc of history in the abstract, but I absolutely need to care about today.
Tom West
Dec 16 2020 at 9:24pm
It seems a high bar to expect a lot of low-information voters to punish before they start feeling the consequences. It would require evaluating multiple dimensional problems with high uncertainties and very little solid information.
I find that democracies aren’t particularly good at choosing which candidate will produce the best results. But they usually aren’t bad at tossing out those whose policies do produce sufficiently bad results (albeit regardless whether the candidate’s policies were responsible for those results).
When Britons start feeling the the pain of Brexit in their everyday lives, then Boris will suffer. But until then he may well skate along.
Democracy is the bluntest of tools, but it’s better than having no tools whatsoever.
Craig
Dec 16 2020 at 11:09am
“What can you say when a major political movement (Trumpism) finds it easier to believe that every major American institution is potentially corrupt than it is to think that a president with a history of telling whoppers is being dishonest again?”
If your promise is to cross the Rubicon, I don’t care if you won the election.
Pierre Lemieux
Dec 16 2020 at 2:32pm
@Craig: As you know, I am not exactly a follower of Biden. (But if you force me to share my most intimate thoughts, I would admit that I prefer him to a buffoon.) Interestingly, it is Trump, not Biden, who literally wanted to cross the Rubicon by bringing troops in DC.
Craig
Dec 16 2020 at 3:33pm
“(But if you force me to share my most intimate thoughts, I would admit that I prefer him to a buffoon.)”
In a sense you are fortunate that in your line of work you feel free to express your most intimate thoughts. If I did likewise with my surname, I would be subject to economic ostracization.
Craig
Dec 16 2020 at 3:48pm
Minor aside: “Interestingly, it is Trump, not Biden, who literally wanted to cross the Rubicon [Potomac] by bringing troops in DC”
Trump (Pompey or the consuls in Rome) could clearly give an order/consent to Caesar to bring the legions stationed in Gaul to Rome.
Craig
Dec 16 2020 at 4:49pm
“I would admit that I prefer him to a buffoon”
A buffoon doesn’t pack the Supreme Court. I would suggest you underestimate how insidious that really is. Basically what they are saying is is that they are going to win a legislative majority, waltz into the White House and eliminate any judicial check that might exist to their authority. Of course packing eventually begets counterpacking and the entire purpose of the judicial branch gets thwarted and once Humpty Dumpty is pushed off the wall, that’s it, there’s no putting him back.
Separation of powers will be forever undermined. And no, not giving Garland a hearing is not an excuse for that. Imagine if Trump had done that in 2016. Maybe TX would’ve had standing? Indeed we recently saw how court packing played out in Bolivia with respect to Evo Morales contesting the term limits imposed on him by the Bolivian Constitution.
Frankly doesn’t matter if the Republicans win the GA runoffs and foreclose this action here and now. The Democrats have shot the hostage an now the threat looms over the Republic like a Sword of Damocles. Acknowledge the election in exchange for an Amendment barring court packing? That’s fair, I could live with that. Not going to happen, but absent an Amendment barring court packing, the Republicans should disavow the election.
I’m not a betting man, but if I were to bet, I’d bet there’s little chance of that happening and you’re better off betting on finding me in Freeport looking for ways to avoid taxation.
robc
Dec 16 2020 at 11:48am
“What can you say when a major political movement (Trumpism) finds it easier to believe that every major American institution is potentially corrupt than it is to think that a president with a history of telling whoppers is being dishonest again?”
Why can’t I believe both? They are in no way contradictory.
Charlie
Dec 16 2020 at 11:53am
“An optimist may hope that the 70 million Americans (or perhaps half of them if we exclude those who just voted against the Democratic party) who voted for Trump after having been officially and openly lied to by him and his sycophants during four years, will wake up to the danger of Leviathan.”
https://www.foxnews.com/politics/republicans-president-trump-robbed-poll
Craig
Dec 16 2020 at 2:17pm
Exactly, like I’m going to concede the point? Why? So that I can acknowledge the legitimacy of them reminding me of how non-essential I am?
No thanks.
Pierre Lemieux
Dec 16 2020 at 2:27pm
Thanks, @Charlie. If I understand you correctly, you mean that it is difficult to be optimistic? But the results of this opinion poll are mixed if not incoherent (which is not surprising given the paradox of voting and Arrow’s theorem):
Recall that 13% of Americans—23% among Republicans and 8% among Democrats—agreed that “President Trump should close down mainstream news outlets, like CNN, the Washington Post, and the New York Times.”
Craig
Dec 16 2020 at 3:30pm
“And, by a 56-36 percent margin, voters think Trump is weakening rather than strengthening American democracy by contesting state vote counts”
And how dare anybody undermine ‘democracy’ generally, right? The paradigm is the US Constitution of 1787 as subsequently amended. It is supposed to be an experiment in limited government, which I personally judge, at this juncture to be a failure. That’s exactly what Madison did when he went to Philadelphia and he undermined the Articles of Confederation, then, the law of the land. Was he undermining ‘democracy’
People are forgetting that government is supposed to serve a utilitarian purpose and that the US Constitution is designed to protect individuals liberty. Yes, indeed, I will affirmatively weaken democracy the second 50%+1 evince a design to impose confiscatory taxation and to permanently neuter separation of powers by packing the Supreme Court.
Further, I’m not saying to install Trump as dictator for life.
Nobody can make a moral claim to more than half my income. I don’t care if its a claim made ‘democratically’
Nick R
Dec 16 2020 at 3:37pm
I’m surprised there’s no acknowledgement of the widespread, one could say ubiquitous, lying at all levels of government and society. Governors in multiple states lie shamelessly seemingly for no other purpose than the pleasure of petty tyranny. Journalists actively suppress, distort, and even lie about developments and views that don’t fit their politically correct narrative. The Tech giants lend a hand. Scientific journals (eg Lancet and the New England Journal of Medicine) disregard long-observed publication and peer-review standards to attack and discredit a reviled political figure. Corporate CEOs mouth politically correct views and throw money at politically correct ventures. Is lying in and out of politics going to get better once Trump is out of office? I’m a skeptic.
Warren Platts
Dec 16 2020 at 4:03pm
Wait one cotton-picking second. Trump is not the one doing the vast majority of lying. In fact, unlike most politicians, Trump has actually followed through on most of his promises: Trump said he would raise tariffs on China, cut taxes, eliminate regulations, build a border wall–Trump did all of that. You may disagree those are good things, but Trump certainly wasn’t dishonest about his intentions.
More recently Trump said there would be vaccine by the end of the year. I could give you 20 links that say that was a bald-faced lie. Those were the lies. On November 9, Pfizer announced they had a vaccine & people are getting the shots already. Of course Pfizer was in on the fix. They obviously slow-walked the announcement.
As for the real liars, let’s see: it turned out the whole Russia Russia Russia thing was nothing but a literal, made-up hoax involving Hillary Clinton, the DNC, Brennan, the FBI, GCHQ, and probably Obama, among who knows who else. Recently, 50 or 60 intelligence community operatives signed that letter saying the Hunter Biden laptops were Russian disinformation, giving permission to the MSM & Big Tech to suppress the story that Joe Biden himself is implicated in a bribery scheme involving *China*! Literally, one third of all Biden voters had not heard of the Hunter Biden story, and that a sizeable fraction of those would have switched votes–enough to change the outcome of the election.
That in itself is 100% justification for the claim that the election was corrupted (i.e., stolen), and that, therefore, the state legislatures were fully justified in sending an alternative slate of electoral college electors, and that Vice President Pence will be fully justified to select, ensuring four more years of President Trump.
Of course there was widespread voter fraud. The lie that Trump was Orange Hitler, and that his white supremacist minions were going to launch Civil War 2, entails that literally any means necessary, including dishonest fraud is morally justified. But really, the allegations of widespread voter fraud are a sideshow to the big fact that the Deep State/CIA/NSA/FBI/FISA/MSM/Big Tech/DNC/DOJ/CCP all colluded to steal the election. A free and fair election requires a free press where information is freely shared. Instead, the “press” was utterly shameless in their propaganda techniques. They stole the election.
As for Leviathan, recall the cover illustration of Hobbes’ book: Leviathan is actually a big, fat, organicist, ontologically real superorganism with a life of its own over and above the individuals that are mere parts. In other words, Trump is NOT Leviathan. He was just one man who was attempting to reign in Leviathan. The reality is Leviathan is composed mainly of unelected operatives working in secret, elected partisan grifters, and self-appointed guardians of the “truth” — as in their “truth”.
So congratulations “Libertarians”! You assisted Leviathan to steal an election from the one man who had the courage to stand up to Leviathan, thus ensuring Leviathan will remain entrenched forever.
Weir
Dec 16 2020 at 11:16pm
Where do you draw the distinction between an open lie and a closed lie? Or a semi-open lie, or whatever you call it when John Brennan and Jim Clapper and another four dozen Biden allies came up with their formulation about “all the classic earmarks of a Russian information operation.”
The self-serving accusation that the Russians were somehow responsible for emails from and to Hunter Biden was taken up, less artfully, by the next president himself, who said straight out at the debate that it was “a bunch of garbage.” Was that an open lie or something else?
The honest part of the formulation that the ex-CIA guys came up with is that they didn’t deny outright that the emails were genuine.
It was perfectly easy to prove the emails were real. And so the next line was this big disclaimer: “We want to emphasize that we do not know if the emails, provided to the New York Post by President Trump’s personal attorney Rudy Giuliani, are genuine or not and that we do not have evidence of Russian involvement–just that our experience makes us deeply suspicious that the Russian government played a significant role in this case.”
I agree with you, Pierre, about private institutions and the institutions of the government holding the state in check. Case in point: All the journalists and TV talking heads who substituted those carefully chosen words “Russian information” with “Russian disinformation.” This was information that could have embarrassed their candidate, which is why they wanted it buried under the familiar patriotic scaremongering about “disinformation” from a hostile foreign power. The headlines and the chyrons and the talking points were all about “Russian disinformation.”
So is Christiane Amanpour going to hold the government to account? Or Leslie Stahl at 60 Minutes? Does Jack Dorsey or his Head of Site Integrity at Twitter understand the fine distinctions between open lies and closed lies? Is an open lie worse than the new president saying, “There are fifty former national intelligence folks who said that what he’s accusing me of is a Russian plant.” Seems like these CIA guys are eager to hold one guy in check, but not so much their own candidate. Plus the president’s cheer squad in the those big private institutions.
Seems like there’s an over-supply of sycophants eager to hold kids like Nick Sandmann to account, or to hold in check the literary critic Joseph Epstein, who wrote that outrageous and sexist op-ed about people who insist on being called “Dr” because they’ve written a dissertation. Or are you more optimistic than me?
Jon Murphy
Dec 17 2020 at 9:21am
What is an open lie and what is a closed lie? I am not familiar with those terms.
Jon Murphy
Dec 17 2020 at 9:30am
In talking with some international colleagues, one thing I have heard over and over again is how incredibly impartial the US’ legal system is. While judges are appointed by politicians, they follow the law. Disagreements about issues are typically fairly minor points of interpretation. With very few exceptions, American judges do not offer sweeping changes in precedence.
For example, look at the Supreme Court’s dismissal in Texas v. Pennsylvania et al. The only dissent was over a procedural matter (whether or not the Court must hear disputes between the states). On the actual content of the complaint, the Court was unanimous: there was no merit.
A Canadian colleague told me that if the American courts behaved like the Canadian courts, the election results would almost certainly have been overturned. The Left justices tend to vote how the Left party wants and the Right justices tend to vote how the Right party wants (I’d be interested to hear from our resident Canadians the truth of this observation).
The American Courts still have some of the best records of classical liberalism, at least in terms of deference to general rules.
Craig
Dec 17 2020 at 10:20am
“While judges are appointed by politicians, they follow the law.”
If they did Supreme Court vacancies would be completely uninteresting. At the end of the day, in a system where propounding and getting an actual Amendment through is extremely difficult the Rule of 5 prevails and effectively amends the Consitution.
See for instance, Helvering v Davis (ruling that General Welfare was an independent substantive power of Congress) or for instance Wickard v Fillburn ruling that growing wheat in your backyard for personal consumption could be regulated as a form of interstate commerce. Both of them are still the law.
Bottom line is they don’t follow the law. In fact the major flaw of the Constitution is that the sole arbiter of the extent of the powers of the federal government is the federal government.
“For example, look at the Supreme Court’s dismissal in Texas v. Pennsylvania et al. The only dissent was over a procedural matter (whether or not the Court must hear disputes between the states). On the actual content of the complaint, the Court was unanimous: there was no merit.”
Correction, they found TX had no standing. The actual underlying gravamen of the complaint has merit as the Supreme Court itself suggested in its denial of cert of the case the Republican Party of PA brought in PA.
The PA legislature had made a rule saying the mail in ballots needed to be received by election day.
“In a law called Act 77, the legislature permitted all voters to cast their ballots by mail but unambiguously required that all mailed ballots be received by 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77; see 25 Pa. Stat. Ann., Tit. 25, §§3146.6(c), 3150.16(c) (Purdon 2020)”
“A month ago [a ‘month’ before the date the statement was written on Oct 28th, 2020], the Republican Party of Pennsylvania and the Pennsylvania Senate leaders asked this Court to stay the Pennsylvania Supreme Court’s decision pending the filing and disposition of a petition for certiorari.”
“But I reluctantly conclude that there is simply not enough time at this late date [Oct 28th, 2020] to decide the question before the election.”
“In the face of Act 77’s deadline, the Pennsylvania Supreme Court, by a vote of four to three, decreed that mailed ballots need not be received by election day. App. to Pet. for Cert. 80a–81a. Instead, it imposed a different rule: Ballots are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter. Id., at 48a. In addition, the court ordered that a ballot with no postmark or an illegible postmark must be regarded as timely if it is received by that same date. Id., at 48a, n. 26. ‘
“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.”
Republican Party of PA v Boockvar – Statement of Alito accompanying the denial of cert on Oct 28th, 2020
They didn’t say the complaint had no merit.
Jon Murphy
Dec 17 2020 at 10:36am
They do, though. As I said, there are exceptions, but they are rare. The Supreme Court, for the most part, is uninteresting. What makes cases like Wickard v Fillburn noteworthy is that they are deviation from the norm, not the norm themselves.
And the mere fact those cases are still law (bad law, mind you, but law nonetheless) is more evidence of my point. The court was very Left: 8 of the 9 were appointed by FDR. The Court has been largely dominated by conservatives over the past few decades, and yet the Court has been hesitant to overturn the established precedence.
So, as I said, there are exceptions to the general statement I made. But they are the exceptions.
Craig
Dec 17 2020 at 11:46am
They really are a deterministic claptrap.
“What makes cases like Wickard v Fillburn noteworthy is that they are deviation from the norm, not the norm themselves.”
They are not a deviation from the norm as you’re thinking of it. They’re a deviation of course, but they are a deviation and the establishment of a new norm.
And it wasn’t until, I think 1995 when the Supreme Court FINALLY found that Congress exceeded its authority under the Commerce Clause in US v Lopez which I think was a firearm possession in school zone law or something.
The problem of course is that a substantial percentage of federal power is based on an unconstitutional interpretation of the Commerce Clause. That’s how one can get rulings like Raich v Gonzalez that the federal government can prohibit the growing of marijuana in your backyard because of the ‘total incidence test’ of the Commerce Clause (same logic as Wickard). Compare of course with pre-New Deal Prohibition where to prohibit liquor clearly required an actual Amendment.
So, no, its not rare, the Supreme Court has wrongly decided that the Commerce Clause is far more expansive than it should be and the result is THOUSANDS of rulings (and tens of thousands more cases that people didn’t bother to bring simply because they realized they would lose) that the federal government possesses far more power than they ought to have.
Where this becomes rather obvious is when one compares the original intent of federalism with the result today. As Madison writing as Publius noted in Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
We may have many things today but a limited government of enumerated powers is not one of them.
“The court was very Left: 8 of the 9 were appointed by FDR. The Court has been largely dominated by conservatives over the past few decades, and yet the Court has been hesitant to overturn the established precedence.”
FDR also threatened to pack the court and that got him the permissive New Deal rulings that would open the floodgates.
“yet the Court has been hesitant to overturn the established precedence”
Because once the floodgates are open its impossible to ratchet back particularly by judicial decision. Let’s say Mr. Murphy brings an action that Social Security exceeds the powers of the federal government and that General Welfare is not an independent grant of substantive authority.
I would agree with that, its 100% correct, Helvering relies on an ahistorical Hamiltonian interpretation of the Constitution that had no presence at the Philadelphia Convention or the NY Convention. It only makes its first appearance in the Report on Manufacturers Hamilton made to Washington well after ratification.
I would still rule against you because I can’t rule social security unconstitutional. Medicare of course is the same. (Health, welfare, safety are STATE powers, not federal) Reining in the Commerce Clause would kill off minimum wage legislation, Obamacare, etc.
You’ll find out really quickly that the vast majority of federal expenditures are in programs that are based on an unconstitutional interpretation of the Constitution.
Craig
Dec 18 2020 at 10:12am
“What makes cases like Wickard v Fillburn noteworthy is that they are deviation from the norm, not the norm themselves”
They establish a new norm where thereafter a 1000 cases are decided similarly and wrongly. Many others don’t even bother trying. It wouldn’t be until 1995 when an act of Congress was declared unconstitutional as exceeding its powers under the Commerce Clause in US v Lopez
“The Court has been largely dominated by conservatives over the past few decades, and yet the Court has been hesitant to overturn the established precedence.”
If I believe that Helvering v Davis was incorrectly decided because the historical evidence is abundantly clear that the Madisonian interpretation is correct and the Hamiltonian version is incorrect — and historically there’s no question Hamilton agreed with Madison at Philadelphia and NY Conventions.
Still, if you were to challenge the constitutionality of Social Security TODAY. I would NOT rule it unconstitutional.
The problem is that it can’t be undone and fact of the matter is that a good majority of the government’s expenditures are underpinned by a constitutional interpretation that is just flat out wrong.
I thought I responded to this yesterday, I guess it didn’t go through?
Craig
Dec 18 2020 at 10:22am
One of Wickard’s progeny for instance is Raich v Gonzalez upholding the ability of the federal govt to prohibit people from growing marijuana in their backyard based on the ‘total incidence test’ — really the same basic logic as Wickard. Indeed one can see how the Constitution was perverted because when they did Prohibition they did it by Amendment. In otherwords, prior to the New Deal it was well understood the federal govt possessed no constitutional authority to do such a thing and it needed to be empowered to do so with an amendment to the Constitution itself. After the New Deal it was settled – BY DECISION.
Indeed when comparing the original intent of the Founder with the result its clear the Supreme Court is completely off the rails.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” — Madison writing under the nom de plume, Publius, in Federalist 45
Comments are closed.