Madison’s Consistency on the Bill of Rights (National Affairs)
Reading Wealth of Nations and Meeting Adam Smith (The Hedgehog Review)
Not everyone (Verfassungsblog)
Philosophers Rebuild Society (Existential Comics)
I am rewatching The Expanse, which is a deservedly popular science fiction show on Amazon Prime. It’s very good. As I said, I am rewatching it, mostly in anticipation of the new season, which comes out next month.
It’s good because I like my science fiction to be science-y. I prefer realistic scenarios. So Star Wars is not really my thing (even Star Trek is a stretch, to be honest, but DS9 is amazing).
One thing that strikes me as wrong in The Expanse is the politics. In the storyline, there are three political units: Earth, Mars, and the Belt. Earth and Mars are sovereign, and the Belt (based out of the asteroid belt) is semi-sovereign with a distinct and viable “nationalist” movement there. This is a sophisticated storyline for television. It’s better than DS9, which bore the standard for great science fiction television until The Expanse came along.
But I can’t stop thinking: why would the political alignment of the solar system be based on planets? If it were to be truly realistic, then Earth would not be a sovereign political unit. Instead, we’d have a dozen or so political units from Earth, some political units from Mars, and several from the Belt. Factions in the form of sovereign political units would dominate the political landscape, not planets.
Now, The Expanse does a good job confronting the issue of faction. Earth’s democratically-elected dictator has to deal with several factions, and Mars and the Belt both have factions, too. And several excellent subplots deal significantly with the issue of faction. But there’s not enough sovereignties in The Expanse. It doesn’t mean the series isn’t the best science fiction television series of all time (it is), but it does leave me wanting more.
It is widely accepted that good institutions caused the massive increase in living standards enjoyed by ordinary people over the past two hundred years. But what caused good institutions? Scholars once pointed to the polycentric governance structures of medieval Europe, but this explanation has been replaced by arguments favoring state capacity. Here we revitalize the ‘polycentric Europe’ hypothesis and argue it is a complement to state capacity explanations. We develop a new institutional theory, based on political property rights and what we call polycentric sovereignty, which explains how the medieval patrimony resulted in the requisite background conditions for good governance, and hence widespread social wealth creation.
By Alexander Salter & Andrew Young. Read the whole excellent thing here. I wonder how much the author’s conception of “polycentric sovereignty” has in common with Madison’s compound republic?
Salter & Young do a great job bringing decentralization back into the overall “economic growth and political freedom” picture. Over the past two decades, political centralization as a good thing has been making a comeback under the guise of “state capacity.” This isn’t a bad trend, but it has left several large gaps in understanding how economic development and political freedom works. (For example, how to prevent centralized states from pursuing illiberal ends, or using illiberal means to pursue supposedly liberal ends.)
This article brings decentralization back into the picture, using Elinor and Vincent Ostrom’s conception of polycentricity as a model. However, I don’t think they spend enough time on Vincent Ostrom’s understanding of the American compound republic. The American federalists were concerned with exactly the same thing that we are concerned about now: how to maintain a proper balance of centralized power and decentralized power so that liberty may flourish. I’ve emphasized the important part with italics. The liberty aspect gets de-emphasized to make room for the sexier “economic growth” aspect, but political freedom is still paramount when it comes to thinking through matters of politics.
The American federalists, and especially Madison, came up with the compound republic to address the centralized/decentralized debate. Scholars continue to underrate its genius and usefulness for capturing humans as they are. Ostrom’s book on the Madisonian compound republic is worth your time and money. Read it in tandem with this book on the Federalist Papers and this book on the formation of the American republic and this short paper on the continued viability of the compound republic to today’s world. Once you’ve done the readings, start writing (or better yet: blogging!).
Some say that Donald Trump’s transactionalism in the realm of geopolitics has gotten out of hand. Tridivesh has actually been saying this for awhile now. Jacques is not pleased with the president’s decision to withdraw American troops from Syria. Of the other Notewriters, only Andre has spoken up for Trump’s withdrawal from Syria.
There are libertarians and leftists who have applauded Trump’s move, but for the most part people are dissatisfied with the way the president of the United States conducts foreign policy. There’s no logic. There’s no strategy. And the incentives don’t quite line up, either: is Trump out for the republic or himself?
This is unfair. Trump’s transactionalism comes with more press, but Obama and the guy before him were transactionalist presidents, too. Just think about Syria to begin with. Getting involved in the butchery there had no logic to it and actually went against the strategy of Obama’s “Pivot to Asia.” Still, Obama mired the republic in another brutal regional scuffle. GWB did the same thing in Iraq, too. Osama bin Laden was hiding out in Afghanistan, so Bush invaded Iraq, a country that had nothing to do with 9/11. Makes sense, right?
Maybe we’re looking at this all wrong. Maybe we should be looking at the incentives and trade-offs available to the executive branch of the American government instead of single individuals.
My contribution to reassessing American foreign policy is to look at the role that formal alliances play in chaining down the executive branch in the American system. Libertarians loathe both alliances and the executive branch, but what if one is useful for off-setting the other? Which one would you rather have? (Trade-offs are more realistic than utopias, my fellow libertarians.)
There are two general types of alliances in the world: formal and informal. Alliances have been with us since the dawn of time, too. Think of the alliances our Stone Age ancestors made, one individual at a time. Elected politicians make alliances and call them political parties. Dictators make alliances and call them bargains. You get the picture. The United States has traditionally made use of informal alliances, so Trump’s abandonment of the Kurds in Syria is really a continuation of American foreign policy and not an aberration as some hawks claim.
In fact, prior to World War II, the United States had signed just one official alliance with another polity: the Treaty of Alliance with France that lasted from 1778-80. So from the start of the Revolutionary War (which was really a secession from the British Empire rather than an actual revolution) in 1776 to America’s entrance into World War II in late 1941, the United States had joined only one alliance, and it was a short-lived alliance that would make or break the existence of the republic. (During World War I, the United States was an “affiliated partner” rather than an official ally.)
This doesn’t mean that the United States was isolationist, or non-interventionist, during this time frame. In fact, it highlights well the fact that the United States has a long history of entering into alliances of convenience, and a short history of building and then leading stable coalitions of military partners around the world. Alliances have shaped the destiny of the republic since its founding. And, more importantly, these alliances of convenience have their intellectual roots in George Washington’s foreign policy. Washington’s foreign policy even has its own name: the Washington Doctrine of Unstable Alliances. According to Washington and other elites of the founding era, the United States should freely enter into, and exit, alliances as necessary (Jefferson was a big fan of this Doctrine, too). This stands in stark contrast to the idea that the United States only soiled its virginal unilateralism once, when it was in dire peril and needed a helping hand from France to fend off an evil empire.
Washingtonian alliances throughout American history
Aside from fighting alongside the Oneida and Tuscarora during its secession from the British Empire, the United States forged alliances with Sweden, in 1801 to fight the Barbary states, and with the Choctaw, Cherokee, and some of the Creek during the ill-fated War of 1812. In fact, one of the reasons the United States got pummeled in the War of 1812 was the lack of Native allies relative to the British, who had secured alliances with at least 10 Native American polities.
The American push westward saw a plethora of shifting alliances with Native peoples, all of which tilted in eventual favor of the United States (and to the detriment of their allies).
The American foray into imperialism in the late 19th century saw alliances with several factions in Cuba and the Philippines that were more interested in extirpating Spain than thinking through an alliance with an expansion-minded United States.
In 1832 the United States entered into a Washingtonian alliance with the Dutch in order to crush some Barbary-esque states along the Sumatran coast. The alliance led to the eventual, brutal conquest of Aceh by the Dutch and a long-lasting mutual friendship between the Americans and the Dutch.
From 1886-94 the United States and its ally in the South Pacific, the Mata’afa clan of Samoa, fought Germany and its Samoan allies for control over the Samoan islands. The Boxer Rebellion in China saw the United States ally with six European states (including Austria-Hungary) and Japan, and affiliate with three more European states and several Qing dynasty governors who refused to follow their emperor’s orders.
NATO’s continued importance
Clearly, the United States has followed its first president’s foreign policy doctrine for centuries. Washington warned that his doctrine was not to be an eternal guideline, though. Indeed, the most-cited case study of the Washington Doctrine of Unstable Alliances is not the American experience in the 19th century, but the Nazi-Soviet one of the 20th, when the Germans turned on the Soviets as soon as it became expedient to do so.
The establishment of NATO has forced the United States to become reciprocal in its alliances with other countries. The republic can no longer take, take, and take some more without giving something in return. This situation of mutually beneficial exchange has tempered not only the United States but everybody else in the world, too (especially in the industrialized part of the world; the part with the deadliest weapons). Free riding will most likely continue to be a problem within NATO. The United States will continue to pay more than its share to keep the alliance afloat. And that’s perfectly okay considering most of the alternatives: imperialism (far more expensive than free riding allies), ethnic cleansing, or oscillating blocs of states looking out for their own interests in a power vacuum, like the situation Europe found itself in during the bloody 20th century.
The forgotten alternative
Unstable alliances lead to an unstable world. The rise of NATO has been a boon to the world, despite its costs. If libertarians want to be taken seriously in the realm of foreign affairs, they would do well to shake off the Rothbardian shackles of isolationism/non-interventionism and embrace Madisonian federalism with a Christensenian twist. The 13 North American colonies that broke away from the British Empire were sovereign states when they banded together. The 29 members of NATO are sovereign states, too, and there’s no reason to believe that Madison’s federal blueprint can’t band them together as well.
If libertarians are comfortable embracing non-interventionism as a foreign policy doctrine, even though it has never been tried and even though it’s based on a shoddy interpretation of history, there’s no reason why they can’t instead embrace federation as their go-to alternative. Federation at least has history on its side, and it’s also got the obscure appeal that libertarians so love to ooze at public gatherings. Will 2020 be the year that libertarians shift from non-interventionism to federation?
Jair Bolsonaro has been in government for almost six months now. I believe I can proudly say that I saw this coming before many people: Bolsonaro would be the next president in Brazil. However, he might not be the best person for the job.
In my assessment, Bolsonaro is not the usual politician. As John Mearsheimer brilliantly observed, politicians lie. A lot. It should be a given: dogs bark, cats climb on trees, and politicians lie. Bolsonaro, as far as I can tell, doesn’t. And that might be part of the problem: he always speaks his mind. Nothing is concealed, even when strategy might call for that.
In the past week, Bolsonaro sent an open letter to some of his followers (not written by him) manifesting how hard it is to govern Brazil. The letter sounds like a vent for the president’s frustration: “You Either Die A Hero, Or You Live Long Enough To See Yourself Become The Villain”. But what Bolsonaro means by all that is not clear. For all sorts of reasons, corruption is a living part of Brazilian politics. Actually, of politics in general, just a little more down there. So why the president sounds surprised by that?
Some people in the press speculated that Bolsonaro plans a coup. Call that it is impossible to govern with the current congress and just close it. To be sure, that is not unthinkable, and Brazil has historical precedents for that. But that doesn’t sound like something that Bolsonaro would do. Sounds more like that he is trying to bypass Congress and govern with direct popular support.
Brazilian congress is fabulously corrupt, and Bolsonaro still enjoys great popularity. Maybe he wants to use that to press Congress for the changes Brazil needs. In any case, it is a good opportunity to remember some lessons: power corrupts and absolute power corrupts absolutely. Or, in other words, if men were angels, we wouldn’t need government. And if we were governed by angels, we wouldn’t need checks and balances. But we are not governed by angels. Therefore, checks and balances are necessary. The downside is that this makes the government slow when important changes are necessary. The temptation is to close democratic institutions and just do things the old fashion way: through a dictatorship. I don’t think that is where Brazil is going right now. But it’s important to remember that we need way more than a president. We need people who really understand and appreciate freedom. An uneducated people on these matters will always grow impatient and vote for an easy solution.
Property is the basis for every right and ounce of autonomy we have. James Madison called property “that dominion which one claims and exercises over the external things of the world, in exclusion of every other individual.” Madison went on to argue that basically every right we enjoy is reducible to a property right. We have property in our opinions, in the free use of our faculties, in the safety and liberty of our body, and so on. He believed that “Government is instituted to protect property of every sort” and a government can only be just if it “impartially secures to every man, whatever is his own.”
But government has not remained impartial in this endeavor. It has become a massive property owner in its own right. It has also become a gatekeeper, setting the terms for individuals’ uses of their own property. It has also become a broker and redistributor of property. And finally, it has =become a creator of property in the form of entitlements–what Charles Reich famously called “new property.” It’s this last role that I’d like to discuss here.
Government’s role as a creator of property has muddled and watered down the strength of property rights. The problem began when U.S. courts started grappling with claims that individuals had been deprived of a constitutional right when government stripped them of a government-created entitlement, such as social security.
Courts confronted with this problem basically held that while constitutional rights do attach to entitlements, the government has an increased authority to limit the rights to those entitlements. Essentially, since the government created the entitlement, the government can define the scope and terms of that entitlement.
This “new property” doctrine then became entangled with a different idea altogether. The United States Constitution protects against deprivations of life, liberty, and property without due process of law. The Constitution, however, does not define property. Courts have held instead that state law defines property , and the Constitution then protects rights to that property.
That does not mean, however, that all property can be whisked away at a whim as if it is all “new property.” Rather, even though state law may establish what property is, states do not have the power to mutate and redefine all property rights on a whim. In essence, there is “new property” and then there is “old property.”
“Old property” is a bundle of long-recognized property rights rooted in common law. But just because those rights have arisen from common law courts over the centuries does not mean that these are property rights created by government in the same sense as less-protected “new property.” There is a fundamental difference, for constitutional purposes, between government recognizing a boundary line and creating a food stamp program. In some sense, this difference strikes a deeper philosophical chord, one that distinguishes between positive law and natural law–or fundamental rights that are acknowledged and respected by government, and entitlements that are created and controlled by government.
What are these fundamental property rights? Most are intuitive and understood by babies as soon as their hands are capable of grasping. They include the right to exclude others (the first property right understood by all children everywhere), the right to quiet enjoyment, the right dispose of the property by sale or lease, the right to develop and improve the property, etc. That right extends to chattel and land–things the government does not create but simply exist and are brought under human ownership through a first-in-time rule or a transfer.
The idea that “new property” deserves lesser protection because government dictates its bounds has bled over into the “old property” rights. This stems from confusion between government recognizing the existence of a fundamental right and government creating an entitlement. Extensive permitting regimes have only exacerbated this confusion. When local governments demand a permit before a property owner can do something with their land, the government looks upon that permit as an entitlement–a privilege and not a right. Thus, “new property” ideas come to overlay and suffocate “old property.” As permitting regimes expand, the world of “old property” retracts. But that permit is not a “new property” entitlement–it’s a condition placed upon a fundamental background right–an intruder upon natural law. When a permitting authority tries to strip away or deny a permit, that denial should be subjected to the full rigor of constitutional scrutiny offered to “old property,” not the weak sauce protections for entitlements.
If a government is only just if it limits itself to protecting what is ours, as Madison believed, then we don’t have many just governments left to us. Courts could help by establishing a clearer distinction between the old and the new forms of property so that governments can’t get away with redefining or stripping away fundamental property rights.
The left loves to talk about democracy. Brazil’s former president Lula da Silva is in jail. Finally. Leftists inside and outside Brazil call this a crime against democracy because the polls were showing that in the upcoming October elections Lula would be elected president. The people wanted Lula president, and a judge, Sergio Moro, against the will of the majority, jailed Lula.
I will consent to this argument. Maybe Lula was going to be elected in October (although I have serious doubts about it). Would this be democratic? Maybe. In its most pure form, democracy is the rule of the majority. A good picture of this is three wolves and a sheep voting on what they are going to have for dinner. Leftists in power (or hoping to be in power) love this.
A pure Democracy, by which I mean a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. — James Madison, Federalist No. 10
Brazil’s Supreme Court decided that leftist former president Luiz Inacio Lula da Silva cannot be sent to prison for a corruption conviction until he exhausts all possible appeals. About that:
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be tomorrow.” – James Madison (16 March 1751 – 28 June 1836), fourth President of the United States (1809–1817), co-author, with John Jay and Alexander Hamilton, of the Federalist Papers, and traditionally regarded as the Father of the United States Constitution.
“Brazil is not for beginners.” – Antônio Carlos Jobim (January 25, 1927 – December 8, 1994), also known as Tom Jobim, Brazilian composer, pianist, songwriter, arranger, and singer. Widely considered as one of the great exponents of Brazilian music.