Public Choice Theory and False Consciousness

In an article called “The World Trade Constitution,” 114 Harv. L. Rev. 511 (2000), law professors John McGinnis & Mark Movsesian assert that “Because free trade creates wealth for each nation, one would expect national majorities to favor free trade policies over policies that benefit special interests at the majority’s expense.” The article proceeds from this premise to explain why anti-free trade policies nevertheless often prevail in the U.S. and other democracies and how the World Trade Organization’s review and rejection of such policies reinforces democracy in WTO member nations.

Basically, the point here is that concentrated interest groups—the steel industry, for instance—have disproportionate power in democracies for “public choice” reasons, and use this power to enact policies that benefit them “at the majority’s expense.” The benefits of free trade (cheaper goods) benefit the undifferentiated mass of consumers, but these benefits are too small to make it worthwhile for individual consumers to take political action in support of free trade policies; the costs of free trade, however, are borne disproportionately by concentrated groups who have the means and motivation to take political action. So there’s a political market failure. And market failures should be remedied, right? So when the WTO dispute settlement body (a group of particularly unelected judges (horrors!)) declares a member’s democratically-enacted law in violation of its WTO obligations, and authorizes trade sanctions severe enough to coerce that nation to repeal or substantially alter the law, it’s actually reinforcing democracy, not undermining it. After all, free trade policies benefit national majorities, and WTO obligations are only violated when national legislation protects domestic industries and acts as a restriction on international trade. So striking down WTO-inconsistent legislation reinforces the systematically under-represented preferences of the pro-free trade majority. Note that this same stuff happens in U.S. constitutional theory—J.H. Ely and Carolene Products “discrete & insular minorities” against B. Ackerman and public-choice theory’s “diffuse and anonymous” victims of interest groups.

It’s not that the majority is actually pro-free trade. After all, these laws, enacted by democratic, majoritarian processes, aren't pro-free trade. Note the populist appeal of protectionist sentiments (“the Nafta took our jobs” and so forth) in the current presidential campaign and in Congressional opposition to the U.S.-Colombia trade agreement. Rather, the majority ought to be pro-free trade: “one would expect” it, because it’s in their economic self-interest.

Why would someone vote against their economic self-interest? Only because of market failures; because they don’t understand the import of all those little triangles and squares of “deadweight losses” and “transfers” on the graphs showing what happens to your utility when you don’t have free international trade. Democratic majorities are poorly informed; perhaps there are lobbyists afoot, subverting the people’s true will; whatever the reason, democratic majorities are clinging to anti-trade sentiment. And it reinforces democracy to override democratically-enacted legislation when such legislation is mistaken, because the people (at least a majority of the people) actually want good laws that make them better off, instead of stupid laws that benefit special interests.

A Gedankenexperiment in Constitutional Interpretation

Let's suppose that, tomorrow, we all decided to amend the constitution. We completely rewrite it—not just adding a clause or two, but explicitly erasing the whole thing, and rewriting it from scratch. We go through the entire Article 5 process, and pass, not just an amendment, but an entirely a new constitution.

And, here's the catch—it's IDENTICAL to the one we had before.

What would this mean for constitutional interpretation?

I confine my remarks to the textualist school, because I think the results are the most interesting. However, note that the differences between the interpretive schools are much less meaningful when so little time has passed since the constitutional event.

Approach 1: The words of the constitution should be interpreted by their current meanings in 2008.

Approach 1 assumes that the people signing off on the constitution are interpreting it in light of the current (2008) meaning of the words. Thus, only those meanings are relevant. Under this approach, Justice Scalia would pick up a new dictionary (I like the AHD-4) and reconstruct the meanings of the various provisions from scratch.

Approach 2: The words of the constitution should be interpreted as before.

Textualism doesn't have to ignore context. If the 2008 Constitution is the same as the previous one, maybe the people of 2008 America intended to create the same constitution they currently have. They didn't want to change anything. Instead, they are ratifying the constitution as it currently exists—that is, with the Supreme Court's precedent to date.

Followers of this approach would have to explain why the American people signed off on the unchanged constitution. But there are a number of possible reasons for this. Maybe they just wanted to get rid of the "dead hand" problem by creating 2008 buy-in. Or maybe they just wanted to share an extraordinary moment of civic-mindedness—a formal affirmation of the centrality of the Constitution, and of our participation in it as American citizens (put this way, I wouldn't mind signing it myself).

The strangest thing about this approach is that it might have the effect of prohibiting the Court from overruling its pre-2008 precedent, because their prior interpretations have been ratified as more than mere interpretations- they are now "part of the Constitution" in a way that prevents a textualist from rethinking them. Suddenly Roe becomes part of the Textualist canon.

Approach 3: Only well-known Supreme Court precedent is good.

The idea here is this: we can only import precedent as part of the "original meaning" of the 2008 constitution when the American people know about it. If they don't know about it, they can't be signing off on it, and we have to look at the 2008 meanings of the words.

With this approach, the most well-known cases are probably still good—the blockbusters of Supreme Court jurisprudence. Polls might help determine which cases count. At the very least, I would suggest Marbury, Roe, and Brown—the cases most people know about. Also probably good are free speech cases prohibiting prayer in schools and other cases on currently hot-button issues. You might also toss in anything that appears routinely on television, like Miranda.

Approach 4: The constitution means what people thought it meant in 2008. Prior precedent is only good insofar as "the people" know about it, and non-existent precedent can be good if people think it exists.

In this approach, we largely follow the approach in 3 regarding superprecedents and the like. However, we modify that approach by relying only on popular ideas of what the constitution currently "says." That is, it doesn't matter what the current law is, it only matters what people think it is. That, and only that, is what the 2008 generation ratified.

Although this approach is, perhaps, more theoretically defensible than Approach 3, it is decidedly more difficult to implement or predict. Want to have an abortion? Well, we can't only look at Roe and that line of cases—instead, we look at the (probably simplified) popular idea of what those cases say. That might well be "you can always have an abortion." Likewise, people might think they have a right to produce obscene pornography, because it is extremely prevalent, is similar to protected material, and is rarely prosecuted anymore. These rights become "constitutional" rights, because they are what people think they are ratifying in 2008.

Similarly, there might be things that people think are part of the Constitution, as currently interpreted, but in fact are not (I am indebted to Conrad Deitrich for this idea). This would include not only construed or penumbra rights (association, privacy), but rights that are purely popular fictions ("I know my rights, you can't do this to me.") These might include, for example, a right to absolute control over a child's education, or a right to commit suicide.

Also included might be certain statutes so old that people think of them as constitutional, like various procedural provisions of the Judiciary Act, or even the current system of trial and appellate courts.

Approach 5: Total reset to 1789 (and times of relevant amendments).

This last approach would be appropriate if one viewed the passage of the 2008 Constitution as a repudiation of Supreme Court precedent. Under this approach, we would eliminate all precedent and rebuild from an originalist viewpoint. The more tenuous interpretations (Griswold, Roe, some of the New Deal cases) would likely be eliminated under this approach, whereas older precedent (and the more recent textualist cases, like Crawford) would remain more constant. Scalia and Black decisions would be enshrined, and Douglas would vanish from the face of the earth.