Sunday, February 06, 2011

My Constitution: checks and balances

I want to take a break — perhaps permanently — from writing legalese. Instead, I want to write about my ideas for a communist constitution in ordinary English, at a more abstract level.

At the very highest level, my view of communism is simply thus: the government owns the capital; the people own the government. And I mean really own, especially regarding the latter; not own in theory, not in some abstract philosophical or moral sense, but own in the same "hands on" sense that I own my car or my house, that the (majority) stockholders own a company. The tension, though, comes in keeping a society of some 300,000,000 people functioning efficiently, at the high level (by historical standards) of social cooperation and material prosperity enjoyed by many people (but shamefully, not nearly enough). I don't want to trade cheap air travel or the Internet for freedom: I'm greedy; I want it all.

Keeping a large economy and a large and diverse society functioning relatively smoothly and efficiently seems to require both highly centralized decision-making and specialized expertise, presently provided by our financial institutions (occasionally waving a spoonful of government oversight in their general vicinity). The question in my mind is not whether we need centralized, specialized decision-making, but how to structure the institutions that provide these services. (My anarchist readers may well disagree, but please save your arguments for another post; the question of anarchism will come around again on the guitar in the fullness of time.)

Because I'm American, and because I've studied American government academically and informally for many years, I'm very much enamored with the concept of checks and balances. But simply having any old checks and balances is not enough; we want the right kind of checks and balances. Checks and balances between the legislative (policy setting), executive (policy execution) and judicial (principled independent oversight of policy) seems good in theory, but poorly implemented in actual practice. (The authors of the US Constitution cannot, I think, be blamed; they could not have anticipated modern conditions two centuries in the future.) The problem with the US Constitution is that the Presidency and Congress arguably have been since Jefferson's presidency both become policy setting institutions. Policy execution is (as it has been since every society in recorded history) the domain of the civil service. One enormous problem with the US Constitution is that the role and operation of the civil service is opaque, even at the most local level. So the interaction between the legislative and "executive" have become not a dialectic between policy and execution, but between two policy-setting institutions.

In every corporate and business setting I've studied or participated in both the board of directors as well as the chief "executive" officer create and set policy; it is the vice presidents to actually carry out policy. The interesting dialectic thus occurs not between the CEO and the Board, but between the CEO and the vice presidents. I think there is value in explicitly and directly institutionalizing this dialectic.

So instead of a division between the Congress and the Presidency, I propose an alternative division between the "People's Government" and the Civil Service. The People's Government would assume the role of both the "board of directors" as well as the "chief executive officer", responsible for setting not just fixed, explicit policy but also resolving day-to-day (or month-to-month) situations according to their implicit notions of policy. The Civil Service would then take the role of the "vice presidents" and their various effective departments, responsible for carrying out policy, referring questions that pertain to high level policy to the People's Government on a day-to-day basis.

As to the third leg, I think there's little room to improve on the deep structure of the US judicial system. Yes, the US judiciary provides notable support to the capitalist system, but unlike the Presidency and Congress, this support seems to come properly to the judiciary's "natural" role of independent oversight, rather than being constructed to support capitalism. I find the argument compelling that only the US judiciary (and Western European legal systems in general) has prevented Western capitalism from quickly degenerating into outright slavery and the most crude tyranny. The judiciary ought to be ideologically neutral in structure; just that judges do in fact support capitalism in a capitalist society is therefore not by itself a valid argument against the structure of the judiciary. (Arguments that specific features of the judiciary do indeed privilege capitalism of course remain live.)

I'll talk about the specific structures of these three legs in future posts.


  1. I like the start, but I'm concerned with the people in general. Like the shareholder analogy, what if slightly more than half of the population wants something stupid? What if they all vote to ban same-sex marriage, for instance. Do we follow the will of the people, or do the people have to trust the intelligence of the government.

    You seem to lean towards governmental rule, but then how do we ensure we'll get an intelligent government? To paraphrase Plato - democracy is a bunch of idiots ruled by an idiot - the masses are dumb, so of course they're not going to vote well, so we need leaders to be chosen strictly by how well they do in school - all PhDs. BUT the problem with this method, of course, is intelligence is no measure of morality. Is there another way to determine the best leaders?

    And, even if we take out the corruption caused by power run wild in current governments, will we still have problems because we're generally none too smart and don't get along well.

    I think communism can work, but I wonder if it can work on the scale of the U.S. or even Canada which is a tenth of the size. We can't even figure out which provinces should stay or go.

  2. great stuff. keep up the good work Larry!

  3. what if slightly more than half of the population wants something stupid?

    I think the question of how to have the "wisest" government is unanswerable. Answers that yesterday seemed "stupid" might seem smart today, and vice-versa. Someone might well ask "What if they all vote to allow same-sex marriage, for instance?"

    I don't know what's "really" wise and what's "really" foolish. I know what I personally happen to think is wise and foolish, but I don't think that I personally have a privileged position over how all of society operates.

    There are three things I think we can get from the institutions of government.

    First, we can get a degree of stability and continuity across time and space: things today will be much like they were yesterday or next door, and will be much the same tomorrow. This prevents issues that are "close" from changing public policy every day.

    Second, we get what I call "elevation to the meta-level." When there are persistently close questions, the institutions of government, precisely because they are charged with stability and continuity, encourage us to think not just about the issue at hand, but about higher-level issues. For example, we can think about the larger, higher-level issue of the right to marry in general as well as the lower-level question of whether specifically gay people should marry... because that's the issue we looked at the last time we have a controversial question about marriage (i.e. interracial marriage).

    This post talks about checks and balance. I am most explicitly not saying that we submit all issues of public policy at every level to immediate majority vote. One reason I separate out the People's Government from the Civil Service is to put a roadblock in front of decisions by the People's Government that would have foreseeable difficulties in actual implementation. (The Civil Service, for example, will have to operate within a budget; if the PG asks for something expensive, the Civil Service can always say, "Fine. What do you want to give up to get it?" And the PGs government will have to explain and justify the decision to the individual people. I'll discuss these kinds of issues more when I talk in more detail about the various branches of government.)

    Likewise too I envision a bill of individual rights that will be protected by the judiciary. If the people want to change the individual rights guaranteed by the Constitution, they will have to go through a more elaborate process than a simple majority vote.

    Finally, the most important point is that our institutions of government can be set up not to provide wisdom, but to make the right kind of mistakes and foolish decisions. If a decision is going to turn out to be foolish, I'd rather it be the foolishness of the people than the foolishness of some privileged elite. We can't get a wise government, but we can, I think, get a government where foolish mistakes are not protected by a privileged elite.

  4. Sage, I kind of agree with Larry about getting a "wise" government. Although in our most recent national election, we got a bunch of people who think everyone hates health care but polls consistently showed people wanted health care for all.

    In this particular case, the people are the wisest but our current system is corrupted by money.

    I can't say how it will all work out and I agree with you there are things I want/don't-want that the people might not agree with.

    It's very hard to say.

  5. Fundamentally, to effect social change in a democracy, you have to either show that your proposed change already falls — perhaps surprisingly — within the general social agreement already in place, or convince the relevant majority or super-majority to adopt the change. Even if you're right, perhaps especially if you're right (see Diderot), I think it's always a mistake to force any fundamental social change on the majority.

  6. (By "fundamental" social change above, I mean a social change that does not fall within the general agreement already in place.)

  7. Glad to see more on the Constitution. You know, as an aside, you don't need legalese to do a Constitution. In fact, there is a strong movement to remove all legalese from actual legal practice and just use "plain language." Of course, you can never entirely get rid of jargon and it is useful to have specific, legal definitions of words, but for clarity and use, nothing beats plain language. They just redid the entire set of rules for Civil Procedure at the Federal level to change them all from legalese to plain language. You should check out the rules now - even as a non-lawyer, you ought to be able to understand them.

  8. You know, as an aside, you don't need legalese to do a Constitution.

    Indeed. Hence the possibility of a permanent break. :)


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