Saturday, February 21, 2009

Originalism and regime uncertainty

Originalism is the legal doctrine that the meaning of legal texts, especially the US constitution, is determined by the original meaning and intent of the document. It's a generally unpopular position nowadays. I prefer it because, more strictly adhered to, it would severely limit the size and scope of the federal government, which would have numerous benefits. But besides this ends-based reasoning, I think there are better theoretical justifications. For one, we might justify it on contractual grounds. Namely, the constitution was a contract between the federal government and the states, ratified over 200 years ago, and that to adhere to that contract is to go back to the meaning at the time of ratification. We can change that contract, but that requires both participation from the state and federal governments, which is done through the amendment process. To reinterpret the constitution at the federal level is to effectively change the contract without the states' permission.

Another more pragmatic, ends-based, justification that I've been thinking about recently is on the grounds of Regime Uncertainty. This is a concept from the work of Robert Higgs, that the uncertainty created by political action hampers economic development. The idea is simple: people are less likely to invest in the future when there is uncertainty. When legislators or regulators are empowered to make decisions that will have decisive impact on people's fortunes, it increases uncertainty. People will take less risk, for fear of being thwarted by the whim of politicians and regulators.

This also includes the whim of judges and justices. It doesn't just matter what laws are passed, but also how those laws are interpreted. When laws are vague, or clear rules have not yet been established, then companies will take a more conservative attitude, sometimes becoming excessively protective to avoid legal action. One can think of the all too obvious warning that one finds on food packaging: a nut container that says "this product may contain nuts" or a coffee lid that says, "contents may be hot." One is led to think, "Are we growing stupider that we need to be told these things." The answer is, no. It's just companies have grown excessively cautious to avoid litigation.

I can also think of the sexual harassment training that I went through in order to work at my school here. You'd think, by what they were telling us, that I could never speak to or even make eye contact with any of my co-workers without risking sexual harassment. It seems scary when you think of how easily you could potentially misstep, but the reality is that it is extremely unlikely for a sensible person who is considerate of others to be accused of sexual harassment. The people who design these courses are intentionally excessive--again, in order to avoid any risk of litigation. They don't know what ludicrous things someone might get offended at, and they want to avoid the legal fees, and they don't want to face an unpredictably judge or jury. The precedent on sexual harassment is unfortunately vague and rather generous to the victim, defining it as whatever the victim thinks is harassment. The concept of a "Rational Person" has been put in place to try to tame it. The idea here it is sexual harassment if a reasonable person would think it is sexual harassment. But in practice this just means that the judge or jury will determine whether they think it's sexual harassment, since most people will generally view themselves as a standard for a "rational person." This admittedly would exclude the most ludicrous sexual harassment suits, but it doesn't help too much in creating some certainty about what is prohibited and what forbidden.

Originalism has the advantage that one can actually know what the law is and says. One can know what a law means--what it limits, what it forbids, what it permits, and so on--with a high degree of certainty. If the law says, "interstate commerce" then you can say: "Interstate, that means between the states. And commerce means trade, perhaps also travel." Then, in light of the tenth amendment, you can say, "Thus, congress can't regulate intrastate commerce. Thus, the FDA can't regulate intrastate food and drug sale, the federal government can't prohibit medical marijuana that is entirely intrastate, the FCC can't regulate local radio station," and so on.

Admittedly, even adhering to a more originalist interpretation of the constitution, not all of it is completely transparent, but there is high level of confidence and a greater degree of certainty. And originalism will provide long term certainty. You know that the courts will not suddenly decide that certain forms of commerce are so important (or the judges dislike so strongly) that they can't possibly be intrastate.

This increased certainty will have economic benefits. It will adhere closer to rule of law, rather than rule of men.

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