Tag Archives: constitution

How to Build a Democracy


It is the height of hubris to claim that one knows how to build a democracy from scratch. The U.S. has learned this from its attempts in Iraq, Afghanistan, and countless other countries. But there are a few common themes that can help. One lesson is that it has to come from within, not imposed by foreign countries. Another is that new institutions have to evolve out of old ones, and have to suit local conditions and cultures.

Over at the Daily Caller, I trace out two other themes that emerging democracies should keep in mind: simpler is better, and rely on negative rights, not positive rights. Here’s a taste:

The Arab Spring is over a year old now. It’s too early to tell if that movement will bring liberal democracy to countries that badly need it. But if it does succeed, it will be right in line with a decades-long global trend. According to Freedom House, 41 percent of the world’s countries in 1989 were democracies. By 2011, 60 percent were democracies.

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.

This is a wonderful development. But not all democracies succeed. Without the proper institutions, democracy can be very temporary, as Russia has found out.

Read the whole thing here.

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Principles of Law: Simplicity Is Beautiful

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 21st century is very different from the 18th 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.

We Need Regulators, Not Interveners

The Constitution’s Commerce Clause gives Congress the power to regulate commerce. What does that mean, exactly? Over at the Daily Caller, my colleague Jacque Otto and I explain that regulation is about making commerce regular: no barriers to entry or trade, clear, understandable, and consistent rules, and so on.

Most of what people call regulation doesn’t have anything to with regular commerce. These kinds of rules are more accurately called interventions.

These interventions didn’t appear out of thin air, either:

One important reason regulators intervene is that many businesses want them to — businesses spend considerable effort and resources lobbying Washington to that end. For the most part, American companies compete on quality, price, or other consumer preferences. But on too many occasions, some companies try to use regulatory interventions to dispatch the competition. Sprint’s efforts to squander AT&T’s proposed purchase of T-Mobile are emblematic of this troubling trend.

Lessons abound for antitrust regulators — sorry, interveners.

Legislating the Way to Prosperity

Rep. Jesse Jackson, Jr. has a novel idea for ending poverty: make it illegal. He explains in this short video of a speech he gave on the House floor:

The Constitution should be amended to guarantee everyone the right to a decent home. That way, everyone will get one. In a speech he gave on the House floor, he asks, “What would that do for home construction in this nation? What would that do for millions of unemployed people?”

The Constitution should also be amended to guarantee the right to decent health care. Jackson implores, “How many doctors would such a right create?”

Education needs an amendment, too. “How many schools would such a right build, from Maine to California?” Jackson goes on to wonder how many jobs would be created by giving every student and iPod and a laptop.

If ending poverty really is as simple as passing a few laws, then Jackson isn’t going nearly far enough. If we want a truly prosperous nation, then the Constitution should guarantee everyone not just a decent home, but a mansion filled with servants to take care of every need.

Everyone should have the right to not just a doctor’s visit every 6 months, but a cadre of specialists with access to the latest technologies and tests. This would be a boon for life expectancy.

And why only an iPod and a laptop for children? They deserve supercomputers! They should have the right  to a Ph.D from Harvard in the field of their choice. Such a law would guarantee that America’s population  will be the most educated in the world. And it won’t even be close.

If legislation really is the only thing keeping every American from enjoying Bill Gates’ lifestyle, then Jackson is being far too moderate. Don’t just legislate a decent lifestyle. That doesn’t go nearly far enough. Congress should pass a law that guarantees an above-average lifestyle for all Americans.

Justice Kagan, Please Be a Judicial Activist

Over at the Daily Caller, I explain why newly-minted Justice Kagan should be a judicial activist — but not in the way most people use the term. True judicial activism doesn’t mean legislating from the bench. It means standing up to the executive and legislature and striking down unconstitutional laws. Unfortunately, Justice Kagan seems like she would rather defer to the branches that gave her her new job:

There is a reason why the Supreme Court is filled with Justices eager to defer to the political branches. It’s because the political branches get to pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No Senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judicial passivists.

But there is light at the end of the tunnel:

Justice Kagan was nominated and confirmed because of her judicial passivism. But now that she’s in, she’s in for life. She can stand up for the judicial branch if she wants to. If a case comes before her involving a law that is clearly unconstitutional, her rightful duty is to strike it down.

In many cases, it’s as easy as just saying no.