Against a Legislature
Political Economy3

Against a Legislature

The Problem

The government in the United States has increased dramatically in size and scope over the past century. The same may be observed in Europe with the rise of Social Democracy. Though the intellectual picture for free markets may look rosy with the discredit of orthodox Keynesianism with the oil shocks of the 70s, the Washington Consensus in the 80s, and the fall of Communism in the 90s, they are in no less danger now. The intellectual tides may have turned in our favor, but a far more formidable foe now looms ahead: institutional momentum.

A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.

The American public discovered this in 1933. The quote may be forgiven for its almost Machivavellian cyclical view of political history, but its indictment of Democracy has proven particularly prescient since the Great Depression and the New Deal. It’s not for no reason that social security is now called the “third rail of American Politics” for example – touch it and you die. With only small blips during the Reagan and Clinton years, the regulatory-welfare state has monotonically expanded since that time, for exactly these reasons. The author of the quote would hardly be surprised to see the explosion of the budget deficit since the 1940s, though its acceleration over the past decade (which will continue to accelerate, if the current political climate is any indication) would no doubt have surprised even the most sordid pessimist.

Those familiar with Public Choice theory will note that it predicts this exact same effect more rigorously: with dispersed costs and concentrated benefits to each piece of pork, protection, or regulation, nobody mobilizes to stop its expansion. And so we get a budget deficit which heeds not its impending fiscal collapse. Indeed, Iceland has already experienced this, and Britain is well on its way. With legislators exchanging vote for vote, the effect is always more spending, regulation, and protection.

The Solution

F. A. Hayek laid out in his works on spontaneous order the necessity of rules which are completely general and nondiscriminatory. Essentially, total equality before the law: when the government confers special favors on people (or is even given the authority to do so), incentives are perverted and everyone is worse off.

Simple, clear purpose and principles give rise to complex and intelligent behavior. Complex rules and regulations give rise to simple and stupid behavior.
-David Allen in Getting Things Done

This quote sums up Hayek’s political philosophy quite well. Unfortunately, the legislature’s sole purpose is to replace clear purpose and principles with complex rules and regulations. What can we do then?

Abolish the legislature.

Now this sentiment may sound familiar, and make some uneasy. Indeed, this was tried all the time by emperors in Rome, usually to the detriment of the empire. Why was it so harmful? The power previously wielded by the legislature was taken over by the executive. This is no doubt harmful: I do not mean to increase the power of the executive at all. I mean to replace some measure of the power of the legislature with the judiciary, and the rest with… nothing.

There is a notion in the West that governments ought to be responsive to their people, hence the existence of a legislature. Certainly this is better than a dictatorship with an all-powerful executive branch which goes as it will without respect to the people. But this is only because the people constrain their government in certain ways – for example, once freedom is enjoyed, it can only be taken away very gradually or under duress (though in reality, this duress is often very easy to exploit – for example, the New Deal after the Great Depression, the Patriot Act after 9/11, the Investment and Recovery Act after the financial crisis). But the relevant question is not how responsive a government is to its people: the question is what is the government’s scope. A responsive activist government is preferable to a capricious and nonresponsive activist government, but a nonresponsive minimalist government is preferable to both. This is what Hayek had in mind with general rules: rules which do not change.

So what would this system look like? The law of the land would be a constitution with general rules and principles such as the guarantee of life, liberty, and property, the protection of these from both the government and other people, and a strict separation of economy and state. Other principles (such as the provision of public goods) can be added or not at the discretion of the founders. The courts then interpret these on a case by case basis and establish more specifics. How far is advertising allowed to stretch the truth before it becomes fraud? What rights are children afforded? These are questions to be decided by the judiciary based on these principles, which also would set punishment for infractions. With very simple and fixed trade, immigration, and other policies (unconditional free trade and movement), a large function of the legislature is obviated.

Of course, the legislature does exist for a legitimate general purpose: no constitution can foresee all circumstances. Though this problem is for the most part covered by making the constitution general (yet strict) and leaving the specifics to the judiciary, there may be cases in which something more drastic is required. In such a case, there is a process of constitutional amendment – which would also be the only way in which new bureaucracy could be formed. For example, the FDA, the EPA, the FCC, and any number of executive offices would have no authority to exist except by constitutional amendment. In this way, extreme necessity can allow for some degree of flexibility, but the dangers of an unconstrained legislature such as we have now are for the most part avoided.

Ultimately, people will know what they are getting legally. There will be less uncertainty, less rent-seeking, and more freedom without a legislature. Government will indeed be less responsive to the whims of the people, but given its dramatically reduced scope, fixed and general laws will serve the people much better than a legislature ever could.


  • 1

    Steven H Campbell

    Jan 22, 2010 at 23:36 | Reply

    The government no longer understands that it is supposed to be the “employee” of the people.

  • 2

    Joseph Sileo

    Jan 23, 2010 at 4:18 | Reply

    If the legislature has the power to amend the constitution then they can amend the constitution to either A) Give them more power, or B) Make the constitution easier to amend. And all courts being submissive to the constitution would have no choice but to comply.

  • 3

    Joseph Sileo

    Jan 23, 2010 at 4:20 | Reply

    And this is not without precedent. See Amendment 16 of the US constitution.

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