EconTalk Podcast: Russ Roberts Debates Louis Michael Seidman

If it's Monday, it's release day for the popular and edifying EconTalk, a weekly hour-long podcast with Russ Roberts.

This week's release is a particularly lively argument over whether constitutional considerations about limited government or policy efficacy should guide how our laws and public policies are enacted. From the official writeup:

Louis Michael Seidman of Georgetown University talks with EconTalk host Russ Roberts about the United States Constitution. Seidman argues that the we should ignore the Constitution in designing public policy, relying instead on the merits of policy regardless of their constitutionality. Seidman defends his position by citing examples in the past where constitutionality has been ignored and says it would be better to recognize our disdain for the Constitution in a transparent way. In this lively conversation, Roberts pushes back against these ideas, citing the limits of reason and the dangers of using popular sentiment to determine policy.

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Comments

[nicole]

Just started listening and Seidman is surprised that his argument is controversial. This is going to be fun.

[Brandybuck]

Of course he's surprised. This might actually be his first exposure to the idea of limited government. The man has probably spent his entire adult life in an academic/government/beltway ideological bubble, and Russ has just opened a window and the sunlight is blinding him.

[nicole]

Dude just said 1A is written in "very ambiguous language."

[iggy]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

That could mean anything, Nicole. It's written in old timey language by dead, white slave owners.

[Chloe]

And it's like a 100 years old or something.

[MJGreen]

It depends on what the definition of 'no' is.

And, really, what constitutes a 'law'?

[Mickey Rat]

And Roberts agreed with him.

[nicole]

I know! Wtf was that.

[Irene W. Platt]

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[Sevo]

Yeah, your 'buddy's half sister' is prolly your aunt you knocked up last year.

[Sevo]

Not going to listen, and here's why:
"Seidman argues that the we should ignore the Constitution in designing public policy, relying instead on the merits of policy regardless of their constitutionality."
The idiot is obviously ignorant of the *purpose* of the Constitution. I'd rather listen to, oh, some asshole trying to explain why drugs or prostitution should be illegal.

[Mickey Rat]

He's not ignorant, he thinks that the constitution is too hard to change when he wants a get around.

[Sevo]

"He's not ignorant, he thinks that the constitution is too hard to change when he wants a get around."

So we might guess he's 'clever'?
Repeat: I didn't listen. What sort of public policy" is so valuable that imposing it means tossing the Constitution?

[Mickey Rat]

I'm still in the middle of it, but he's not really advocating a particular policy, he's arguing against constitutional limits on policy. In other words, the government should have no limits on its ability to act, because that is authoritarian.

Seriously, that's his position.

[darius404]

Oh, I believe you. Just a cursory glance at this page can tell you that he thinks the Constitution shouldn't actually bind government action in the slightest. In other words, we shouldn't have a Constitution. This being the first thing I know about the man, he scares me half to death.

[darius404]

Having read the transcript, he no longer scares me. I think his arguments have a lot of reason to them, I just don't think that his conclusion that we should abolish the Constitution is sound.

In short, he thinks the Constitution

1) doesn't do what it's supposed to (such as protecting us from govt excess), depending entirely on people choosing to follow it

2) Is simply interpreted by people to support what they want without regard (or with little regard) as to what it actually means, primarily because the wording is too vague, and secondarily because people will make arguments they can get away with even if they know better

He points out that we have a Constitution, yet it isn't always followed, and points out that other countries without constitutions go about their business without dissolving into chaos (Britain, Israel, New Zealand) and that some other countries WITH constitutions HAVE dissolved into chaos.

In conclusion, he thinks we might be better served by getting the Constitution out of the political stage (by abolishing it) so we can have discussions about what should and should not be done in politics without the Constitution being used as a political bludgeon (by both sides).

I think he makes good points, but disagree with his conclusion. I think abolishing our Constitution would not help make things better, but would make them worse instead.

[VG Zaytsev]

I agree with him to some degree, but I'd phrase the argument as such:

The Constitution does three separate things.

1) Enumerate the powers that the federal government has.

2) Enumerate rights that the people have which cannot be infringed by the government.

3) Creates the structure of government, ie the legislature, the executive, the judiciary and the states. The powers that the government has is divided among the three federal branches and the states.

In practice,

1) The federal government has vastly exceeded the powers granted to it by the constitution.

2) The inalienable rights of the people have been infringed by the government by the completely ignoring the 9th and 10th amendments and by changing interpretations of other amendments over time.

3a) The balance of power between the federal government and the states was destroyed by the 17th & 18th amendments.

3b) An unconstitutional 4th branch of government was created in the 20th century in the form of a permanent, independent bureaucracy whose rulings have the force of law.

3c) The structure of government created by the constitution has a great deal of institutional inertia, and is resistant to policy changes. Which is extremely problematic from a libertarian pov.

Bottom line is that the constitution has not prevented the soft (and not so soft) tyranny that is today's government, but it will prevent any rapid unwinding of that tyranny.

[VG Zaytsev]

3a) Should be

The balance of power between the federal government and the states was destroyed by the 16th & 17th amendments.

[Killazontherun]

That makes him ignorant of all of human history to desire such a thing. So, yes, indeed, he is a very ignorant man.

[Killazontherun]

He is not thinking clearly about what would occur if the Constitution becomes officially scrapped. It is not opposition from patriot movement types that the seidmans would need to be worried about. It is opposition by those inside the government, both those who take advantage of the situation and those who take their oaths seriously in either case they would go Pinochet in a heart beat if given the opportunity. This would be the opportunity. The seidmans would be the first people to be rounded up into the stadiums.

[Killazontherun]

His public policy focused viewpoint trivializes the Constitution. It is as if he doesn't know what it is or what he is actually proposing. To discard the Constitution would be a tectonic level shift in power in the country, and shifts in power at that level do not occur without significant violence.

[deified]

Econtalk is Example A of "A Good Cause being defended badly" where the "cause" is libertarianism.

For someone who interviews so regularly and at such great length, he really sucks at it. He needs to watch every "Booknotes" every recorded and learn the Stanislavsky method so he can successfully imitate Brian Lamb.

WTF does RR know about the Constitution that he should be fighting against a Con Law scholar? Shouldn't Roberts be talking shifting the demand curve for money or something like that?

[Sevo]

"WTF does RR know about the Constitution that he should be fighting against a Con Law scholar? Shouldn't Roberts be talking shifting the demand curve for money or something like that?"

Care to expand on this? I can't tell what you propose.

[deified]

We have libertarian legal scholars: Randy Barnett, Richard Epstein, Douglas Ginsburg, Gene Healy etc.

Those people would be good to use in a debate about the utility of the Constitution.

Russ Roberts should explicate economic concepts like, say, "comparative advantage" and "specialization" and "division of labor" and leave debating of legal analysis to, I dunno, people who are trained in the law.

[Sevo]

OK, thanks for the comments.

[Dweebston]

I think Russ gives a decent guy-on-the-street perspective to topics like these, which keeps it from getting too far out into the weeds. I'm sure you can find scholars debating Siedman's particulars, but that's not really the econtalk format.

[nicole]

For someone who interviews so regularly and at such great length, he really sucks at it.

I don't think this is true at all, though I think his success varies greatly depending on the guest and the topic. I have heard some incredibly interesting episodes, including ones that weren't focused heavily on economics.

[Jordan]

When said Constitutional scholar is arguing that we should just ignore the Constitution, it doesn't take much of an argument to knock him on his ass. Joe Schmo knows more about the Constitution than Louis Michael Seidman.

[darius404]

He must have learned from the same people as our Dear Leader!

[darius404]

I retract my statement. Unlike our Dear Leader, he seems to actually care about some of the reasons we have a Constitution, he just doesn't think it does the job.

[Heroic Mulatto]

Louis Michael Seidman is the living avatar for the concept of "the Banality of Evil".

[Dweebston]

I normally enjoy Russ' interviews, but he sounded like a deflating balloon during their debates. Especially whilst retreading the same arguments that Seidman discounted, not irrationally, because the flaws Russ pointed out exist despite the paper shield. It's unusual for Russ to talk past his guest like this.

Seidman makes an interesting point. He doesn't seem to think that revoking the Constitution would result in universal venality, or at least no worse than exists under its auspices. I wrote the guy off as a leftist drawing ire on a traditionally conservative shibboleth, but his views seem nearly Jeffersonian in empowering states the check the federal government.

[Dweebston]

Not that I've read anything besides his NYT article, and that only briefly. /caveat

[Mickey Rat]

He seems almost naively esoteric about the law. Again, he complains about limits on government being authoritarian, but the law, in which the citizen experiences it, is authoritarian and the limits are supposed to protect them.

[darius404]

Well, he says that what he thinks is authoritarian is just saying "because it's in the Constitution" as a stand-alone defense. He wants people to explain why things should or should not be with better rational, rather than what he interprets as an argument from authority.

I say "interprets", because I've always seen those sort of statements as a way to shorten a longer conversation about WHY something is in the Constitution, not simply the cop-out he claims it to be. For instance, saying "The Second Amendment" is often used as shorthand for the reason behind the 2nd Amendment, and not just "It's in the document, rules are rules, case closed" (though parts of the Constitution DO get used that way). A lot of times when people mention the Constitution in real arguments on a subject, they will actually go into the logic behind that part, not simply cite it.

[Pdc]

@Sevo I would urge you to reconsider and give this a listen. I made the same assumptions from the blurb but Seidman isn't arguing against a libertarian/conservative interpretation of the constitution and in favour of some 'progressive' take on the constitution. It is a much more nuanced argument (I would say his argument is against the very idea that constitutions have any efficacy, not against any specifics of the American one (though he points out a few howlers within it)) and frankly I think he wins the day (and I'd consider myself a libertarian btw).

[Pdc]

Basically the debate is around the efficacy of a constitution, not the efficacy of limited government if you catch my drift.

[klecu]

I listened earlier in the car. My impression was that it was a sophisticated version of majoritarian arguments against the Constitution. I don't know that he was opposed to a constitution so much as the constitution we have.

Russ Roberts did seem out of his element talking law and politics instead of economics. But to his credit, he pushed back on Seidman, though Seidman tried to turn what Roberts said into agreeing with him, which confused me, and may have confused Roberts.

The best part, in my opinion, is that the discussion was very even-tempered. I could imagine a libertarian/Paulite/conservative interviewing Seidman and it being nasty.

[Mickey Rat]

Seidman's argument is that any argument from authority is inherently wrong, but that's the basis of law. When the citizen runs up against the law, the government does not try to convince the citizen that it position is right, it is because that's the way it is. The law is authoritarian, by definition.

[The Late P Brooks]

Seidman argues that the we should ignore the Constitution in designing public policy, relying instead on the merits of policy regardless of their constitutionality.

One man, one vote, one time.

Step aside, Zimbabwe.

[Lyle]

I'm a fan of this show and I believe in violent Islamists.

[Canman]

I didn't know about RR's podcast. Looks like there's a lot of good stuff for a podcast feind.

For ammusement and something different H&Rers; might want to check out Chris Mooney's "Point of Inquiry" interveiw with Paul Krugman to find out about how all the cranks are rejecting what "science" has to say about economics.

http://www.pointofinquiry.org/.....economics/

[iggy]

One of my favorite things is hearing other economists talk about Krugman. Invariably they'll bring up the fact that he won his Nobel Prize for something unrelated to macroeconomics. It's the most obvious under the radar insult, in that it's clear that they're all tacitly admitting that he doesn't know what he's talking about in regards to stimulus spending.

Honestly, people holding up Krugman as an expert in stimulus spending would be like claiming a botanist also has a perfect grasp of chemical engineering.

[Brandybuck]

Chris Mooney is representative of a breed of Skeptic that instantly resort to dogmatism whenever the topic of government, politics, economics, or climate change comes up. It's getting to be quite the broken record.

p.s. I really, really, really, REALLY would like to hear a good Skeptic take on the climate change controversy. Instead all I seem to get is "the science is settled so shut up!".

[iggy]

I hate 'the science is settled' arguments. The science is never settled. That's the point about science, it's an ongoing process to which there is no end. If people believed that 'the science was settled' in the 1700s we'd still be using menstrual blood in an attempt to turn coal into gold through alchemy.

To say that the science is settled is to blatantly disregard the entire point of the scientific method.

[waaminn]

That whole idea sounds kinda crazy to me dude.

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