Category Archives: Law

Countries across the world have turned to democracy in recent decades. There are still a few monarchies here and there, and plenty of dictatorships. Cuba and North Korea are even keeping the last dying embers of communism alight. But more and more, democracy is seen as the way to go.

One of the first things a new democracy needs is a Constitution. One of a Constitution’s jobs is to establish the government’s structure – how the executive, legislative, and judicial branches are composed, what their powers are (and aren’t!), and a few rules of procedure.

The U.S. Constitution is a model of simplicity. You can read the whole thing in under a half hour. And that is the secret of its success. It doesn’t need to outline the specifics of agricultural or trade policy. That’s Congress’ job.

The EU’s de facto Constitution runs well over 200 pages. Where the U.S. Constitution paints with a broad brush, the European Union fills in every last detail. Most countries, including the U.S., are turning to this top-down model and rejecting the Constitution’s more bottom-up approach.

The thinking goes, “How can something so simple be effective when the modern world is such a complicated place? The 21^st century is very different from the 18^th century.”

Good question. The answer is that those extra layers of complexity are precisely why a bottom-up approach is more important than ever. Top-down governance is hard enough even in a simple agrarian economy. It is literally impossible in a world like ours. Too many variables. The more rules there are, the easier they are to subvert.

Transitioning democratic countries regularly used the U.S. Constitution as a model when drafting their own Constitutions. But that’s happening less and less, according to a thought-provoking Investor’s Business Daily editorial.

The reason is a shift in the intellectual climate. Negative rights are out of fashion now. Positive rights are all the rage. Negative rights are the kind that pervade the U.S. Constitution: don’t hit other people, don’t take their stuff, don’t break your contracts. Don’t, don’t don’t.

Positive rights are much less dour. And they are all over most new Constitutions. You have the right to health care, or a job with six weeks vacation, and so on. People think of new positive rights all the time, too. There is a push in some countries to give people the legal right to Internet access. Sounds great. Who could be against that?

I can. Positive rights do sound nice, but in practice they are profoundly illiberal. That is because positive rights often contradict each other. If I break a bone and my doctor has a legal right to be on vacation, one of us has to have our positive rights violated. That means someone has to decide. Someone with a lot of power. Life and death, in some cases. A government with the power to make those kinds of decisions is very powerful indeed. Positive rights systems require large, powerful governments. Rights violations are both frequent and arbitrary.

Negative rights have no such conflicts. That’s a big reason why the U.S. Constitution is so simply constructed. In fact, most of it isn’t even about granting this power or that to government. Most of that is contained in Article I, section 8. The majority of the document is about placing strict limits on those powers. When the people are left alone, they largely prosper. Let them build from the bottom up. The view from the top on down is too distant and blurry to catch the necessary details.

In the law, as in so many other areas, simplicity is beautiful. As democracy continues to march across the globe, newly forming governments should keep that in mind.