Category Archives: constitution

but of course you all thought of that immediately

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Reading some neglected mail from 2007, I happen to see a quotation from Prof Paz’s speech in The Moon Is a Harsh Mistress:

“You might even consider installing the candidates who receive the least number of votes; unpopular men may be just the sort to save you from a new tyranny. Don’t reject the idea merely because it seems preposterous–think about it! In past history popularly elected governments have been no better and sometimes far worse than overt tyrannies.”

Of course, if everyone knows this is the rule, the candidate elected will not be the least popular but the least unpopular, the one who inspires the fewest voters to say “anyone else!”.

But this gives an inappropriate advantage to unknowns. There ought to be a qualifying round of positive voting before the negative vote.

Approval voting takes care of both phases at once, meseems.

Court unpacking

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One occasionally hears that the upcoming election is especially important because the incoming President may have to fill umpty-leven vacancies on the Supreme Court. To remove this jackpot effect, I had the idea of letting the President appoint one member to the Court during each term of Congress, irrespective of vacancies. The size of the Court would thus fluctuate; but how much?

It so happens that there have been 110 such appointments, and the present Congress is the 110th! So I worked out what the numbers would be if the same Justices had been appointed in the same order, one at a time on March 4 of odd-numbered years (when the terms of the President and Congress began until Amendment XX), and resigned or died when they did in real history.

There are some anomalies, of course: thirteen Justices left the Court before I have them appointed (J.Rutledge in 1791, T.Johnson in 1793, Ellsworth in 1800, Moore in 1804, Sanford in 1930, Cardozo in 1938, Byrnes in 1942, W.B.Rutledge in 1949, Vinson in 1953, Minton in 1956, Whittaker in 1962, Goldberg in 1965, Fortas in 1969).
Thus the number reaches -2 in 1800, and does not consistently stay above zero until 1813. It peaks at 10 in 1857, 1859, 1861, 1879, 1887; then declines again, reaching 3 in 1922 and 1925; rises to 7 in 1937; falls to 1 in 1942, 1946, 1949, 1954, 1956; zero in 1957, 1958, 1962, 1969; goes negative in 1971; peaks at 8 in 2005; and is now 7.

In real life, the Court was created with six seats in 1789; expanded to seven in 1807, to nine in 1837, and to ten in 1863; cut back to eight in 1866; and expanded for the last time to nine in 1869.

not from the inside

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Mike Linksvayer has “One question for temporary dictator applicants”: What will you do to reduce the power of the presidency? Mike admits,

I’m afraid I’d have a hard time providing a specific non-lame (and not pie-in-the-sky) answer myself, but what I’d want to hear are specific structural and cultural changes that would make it more difficult for the president to act in an unchecked manner.

I suppose a President can appoint judges who take the Ninth and Tenth Amendments seriously, but in the long run the only non-revolutionary answer is institutional dispersal of powers. I have a couple of suggestions.

from where I sit

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On Wikipedia, a quarrel over this sentence:

Most members of libertarian parties support low taxes and a balanced budget because they believe citizens should keep most of the money they earn, while logically consistent libertarians, including anarcho-capitalists, refuse all methods to subject people to tax.

The words logically consistent were inserted by Irgendwer (German for anywho), who objects to replacing them with radical or even other. While any taxation is obviously inconsistent with the letter of the nonaggression principle, I do not agree that the NAP is the only coherent foundation for libertarian policy; two proofs of the same theorem need not resemble each other. (See also.) I see nothing logically inconsistent in the minarchist opinion that an anarchic order cannot keep the burden of crime below that of crime-plus-tax in a well-conceived low-tax state, and thus that such a state minimizes coercion (which is undesirable even if not the fundamental sin). I’m an anarchist not because I believe such a state is logically impossible but because I believe it is practically impossible: to prevent such a state from mutating into a predator is a prohibitively difficult engineering problem, which does not lend itself to empirical tinkering.

Some libertarian writers worry too much about the deficiencies of either NAP or utilitarianism in extreme cases. In the absence of divine revelation, moral philosophy makes more sense as an empirical science than as an axiomatic one like mathematics (or theology!). It’s a bit incongruous to insist on individualism, whose moral force comes from our observable differences, and on an axiomatic approach, which must abstract away some of those differences.

An empirical science infers the axioms (laws of nature) from the “theorems” (phenomena), and tests them by attempting to derive the latter from the former. If the derivation fails, the scientist asks where was the flaw in my reasoning? and the engineer asks is this approximation good enough to work with until a better one comes along? As a citizen (by which I mean a member of a civilization) seeking to live a moral life, I am more engineer than scientist; I find the nonaggression principle both “close enough” and conveniently simple. And the Coase principle suggests that wherever nonaggression is not “close enough” the deficiency is not the end of the world.

Thus spake the insomniac, who hopes no one was overly bored by it.

policies and proxies

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Putting on my constitutional minarchist hat for a moment . .

The White House and its apologists have often claimed (successfully) that the US Constitution does not restrict its actions outside US borders. I argue in response that, since the US Govt’s authority (if any) is derived through the Constitution, wherever the Constitution does not apply no such authority can exist.

If I were President I’d obviously shut down Camp X and order an end to “rendition”. I was about to say I’d decree a policy that we don’t do anything by proxy that we could not legally do ourselves within the US — but something is scratching at a distant corner of my mind, as if I’m forgetting something.

Can you think of any exceptions to such a policy that would pass the filter of minarchist ethics?