Many pixels have been devoted in recent days to Nobel laureate James Buchanan's
modest proposal, at
Cato Unbound, for amending the Constitution. I wrote
earlier about a tangential aspect of Prof. Buchanan's post. Now I must respond to Judge Alex Kozinski's official
commentary at
Cato Unbound. Here's some of what Judge Kozinski has to say:
Dr. Buchanan advances a vision of government -- especially the federal government -- that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it -- that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.
My take (from a
comment thread at
The Volokh Conspiracy):
Judge Kozinski is right that we have it "good" in spite of the New Deal and its progeny. What he overlooks, however, is how much better we would have it if it weren't for the New Deal and its progeny. There is the "seen" (what we have) but there is the "unseen" (what we don't have because of the oppressive effects of taxation and regulation on social and economic freedom). Judge Kozinski focuses on the seen and forgets about the unseen. His "solution" is to repeal the income tax. But that is no solution at all unless government's power to do things (unconstitutional things, at that) is curbed. The feds might have to replace the income tax with a sales tax, but they'd do it in a heartbeat if that's what it would take to continue doing to us the things it's doing to us. Prof. Buchanan is on the right track, which is to strike at the heart of governmental power. The more practical route to that end, however, is to keep appointing Supreme Court justices whose instincts seem to make them likely allies of Justices Thomas and Scalia.
