Our Constitution is Broken: Part I

I have put forth a fairly radical thesis: Namely, that our Constitution is broken and needs to be modernized. Not a small revision either; a pretty thorough modernization. Our Constitution - drafted in the late 18th century - reads a bit like the bible to me: Just as the bible reads like a bronze-age document; our Constitution reads like a pre-industrial, late 18th century document. They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated. 

But the problem with my broken-constitution theory is that it's just so hard to explain. I mean you kind of have to start at the beginning: What's the purpose of a constitution? How can you explain it's broken without showing that it's not supposed to produce a tyranny. And then you have to show we're a tyranny. And it goes from there.

I mean I guess the other approach is to show how, in particular, our Constitution isn't modernized. I've been thinking a lot about war powers. Our Constitution only considered two possible scenarios: civil war and attack by a state. And the rules for these two are different: You can suspend habeas corpus in the event of civil war. But what I've been thinking about today, is this: 1) Our Constitution covered foreign policy; and 2) our Constitution's foreign policy is isolationism. As soon as we - as a society - rejected isolationism, the Constitution has no rules. It's suppose to cover foreign policy, but it didn't anticipate an interventionist foreign policy. Thus, we have no constitutional checks on pretty much all of our wars and it shows. Like Vietnam being a police action and not a declared war - that looks like you have a hole in your Constitution. It looks like the war version of off-shore tax shelters. And we have lots of them: black-site torturing, getting corporations to do unconstitutional things, getting other nations to do unconstitutional things. As a lawyer, those look like legislative holes. They happen when situations change. It's hard to make a really tight law and no one has a crystal ball. We need to close all of those holes. We need rules for intervention; we need to get rid of these end runs through corporations and other nations. It's not just economic matters that need modernized.

I've been thinking a lot about the Greeks. You know, what was going on is that they had stumbled onto science. There were pre-Socratic philosophers (like Heraclitus) who were approaching things scientifically. It was just this amazing tool; this method of approaching problems. They had this method of coming up with good answers to problems. The capacity is part of human nature, but the method and the systematization of the method... well, it's hard to beat the Greeks. And why is that? I've always wondered that: Why, all of a sudden, do people make a bunch of progress on particular questions? And part must be the discovery of this very powerful method. But I think there's something else: I think there's a historical reason people start to look hard at particular questions. For example, the Copernican revolution: What was going on is that they were figuring out the laws of motion. And once you understand a bit about motion, the Ptolemaic system is clearly wrong. The Ptolemaic system shows a retrograde motion of Mars; Mars is going along in its orbit, reverses direction, then reverses direction again. And that just cannot happen once they knew about motion. They KNEW it was wrong. So, all of a sudden, they're thinking about that question. Copernicus makes the first big breakthrough: Perhaps the Earth and planets revolve around the Sun? But he had circular orbits and it didn't work as well as the Ptolemaic system (as a practical matter). So, why not discard it then? It doesn't work as well. Well, because they KNEW the Ptolemaic system was wrong. Then, Keplar figured out eliptical orbits and it was over for the Ptolemaic system. What focused the Greeks?

I think - like me - they saw their society (Athens) was going down. Both Socrates and Plato were pretty obsessed with the question of justice. Well, what is justice? Lots of historical runs at that question (and with different results). But I think we can think of it more practically (perhaps sometimes working from a process of elimination of what justice is not). The law - my profession - must be very practical in this way. I mean there's an actual dispute and someone is claiming an injustice. You have to solve it. Now. It's like an empirical study of justice, where you build up a system of justice dispute by dispute. Anyway, I think if we look at Socrates more practically, what he saw was this: We're making bad decisions and because we're making bad decisions we're going to go down. 

It gets interesting here because the question of The Republic is: What is Justice? There are several possible answers given and quickly rejected, but then Thrasymachus gives an answer at the end of Book I and it takes up the rest of the book. It's clearly the crux of the problem. Thrasymachus says: "Justice is nothing but the advantage of the stronger." Justice equals power; politics is power; politics is might makes right. This is what Socrates and Plato are squaring up to. Plato's answer: Power shouldn't make the decisions, philosophy should make the decisions because honestly, power makes really bad decisions: "Yes, my plan for us as a collective unit is that 100 people make more money than a human can ever use, a bunch of people starve, there are many wars and much oppression and we ruin the ecosystem." It's the worst plan in history: Anyway, I digress. 

The thing is, they're going hard at this problem, which is: How do you get power our of the decision-making process. Power makes all of the bad plans of history. We want to use this method - philosophy - to make plans. It's a really good problem-solving method; we're going to get better plans. I think that's the bottom-line message of The Republic. They were also realizing, there are all kinds of power. Everyone knows about physical force, but there's: wealth; religion (authority from God); psychological manipulation (sophistry, but also fear, self-interest... it's a whole can of worms); information (necessary tool of science); sexual power (physical attractiveness influences the majority), etc. Well, I think what Plato tells us is that the enemy of the polis is power and getting power to out of the decision-making process is no easy task. So, that's pretty good progress they're making on the issue here. If you make bad plans, you're going down; power makes bad plans; philosophy (science) is a really good tool for making good plans (no guarantees, but it's your best shot). Therefore, we need to come up with a system that let's decisions for the collective be made rationally and keeps power out of the decision-making process. That's the purpose of a constitution. That's what it's really trying to do. That's it's nature. It's trying to solve the problem of power.

Athens has a situation a lot like us. The democracy controls the police power: Thus, no danger of having that power muck things up. And that's an important clue, by the way: putting important powers in the hands of the collective is a way to stop power from mucking things up so often. So ok, Athens was not making bad plans because people were showing up at the assembly with a weapon. Athens was making bad plans because wealthy citizens (claiming to be descended from the Gods) were using this tool of science to manipulate people for their own gain. And it was sophisticated. People made good livings training people how to make the weaker argument seem stronger. Think of that: Training people to get the collective unit to make bad decisions. It's an existential threat to the life of the collective. It's really shitty. I mean that's why the question is so pressing: Athens is going down. And these inventors of this great method discovered a heart-breaking fact: Like all tools, the tool of science can be used for good or evil. Power doesn't use the tool of science well. Plato wanted to create a society run by philosopher rulers. Big problems with this, but the idea is right: We want to find a way to make rational decisions and not bad decisions. It's interesting where Plato's theory falls apart actually. He concedes that those inclined to philosophy, don't want to rule; they want to do philosophy. I think this is true, but potentially beneficial. It means that the centers of power generally don't have the best philosophers, which in a mixed government can be a good thing: you can make science an institution of the people and wall it off from centers of power (police power and wealth). I mean, not totally, they need people trained in science. But the best people can be walled off. The professors, the people who do it for a living. That actually seems a good to me because putting the important powers into the hands of the collective is a good way to keep power from undermining the process so often. I think that's why Aaron Swartz was so important. I think he was bringing us an important message about that. Science must be in the hands of the people; it must belong to the people. And Julian Assange brings the other side of that coin: you can't make good decisions without accurate information; the people need access to science and good information. Science should be in the hands of the people and walled off from power; power should be as transparent as possible. 

Anyway, Plato really wants to train people in this method and that's good progress too. Give this training to everyone, for free. Give everyone access to it. So again, more good progress. I mean Socrates and Plato really run at the problem hard. Reading Plato's dialogues is like watching a great chess master. He sees every problem, every subtlety.. it's impressive. And I think he makes lots of progress. But he never cracks it. Towards the end of his life, he writes The Laws and it's just this awful, authoritarian system. He realized something else: Not that many people are philosophical; in fact, most aren't. So, how does a democracy make good plans? He concludes they can't and ultimately, just gives over to really brutal laws. It's pretty sad, actually. The Republic is really beautiful. He was trying to create something good: Just more problems than could be solved in a lifetime. This brings us to Aristotle.

Aristotle's approach is different than Plato's. When he's trying to understand constitutions, he reviews 150 of them and looks at what they do and how well they worked. His approach to the problem is historical; it's empirical. It's a lot like my tradition (the common law). The common law looks at how people approached a problem in the past, tries to figure out why it doesn't seem to be working and tries to fix it well enough to solve the particular problem before them. This is pretty achingly slow. Sometimes it takes several hundred years to fix a problem. And, the thing is, if you don't fix it, it keeps cropping up. When I studied the Takings Clause (literally from the creation of the power of eminent domain), you could see this. Regulatory takings really stumped them. Several rules were tried, but they failed and problems kept cropping up. At one point, the Court throws it's hands in the air and just adopts a fact-driven test. Fact-driven tests are a sign that they haven't cracked a problem. It just basically says: we'll just let the judge hear the story and do what she thinks is fair. It's not a good solution. And, of course, the problem keeps coming up. Well, I think they're getting onto a good test recently. But all of that took like 100 years. In England, getting ordinary takings sorted out, it took several hundred years and several really bloody rebellions. Lots of people died to get property out of the hands of power. And actually, they realized something really interesting: The state needs property for some reasons that are good. Thus, they hammered out a rule where the state could seize property for public use (building roads), but had to provide just compensation. It's not taking property out of the hands of power; it's hobbling power; it's giving power limited, restricted access. 

The common law is great for this; better than philosophy, I think. Because as many problems as Plato could foresee, it doesn't add up to confronting a problem in real life over hundreds of years. I really think this is true of the common law: Even when it's wrong, they've got hold of something important. They're wrestling with something significant. And they make lots of progress. Like the whole Trial by Combat or Trial by Ordeal thing? That gets a really bad rap, but look what comes out of it. There's this idea that an accusation might not be true; that's presumption of innocence. There's also the idea that we need some procedure for determining guilt or innocence; that's due process. So, pretty good really. And besides, our justice system is total crap. I've sometimes mused that we should give those inner city kids the option of trial by combat. I can't say we'd get less just results. Anyway, long digression... back to Aristotle.

Aristotle is considering these same problems and he comes up with something brilliant. Just accept that most people aren't philosophical. But your problem is with shutting down power; create procedures to do that. Looking at this problem of money-backed sophists, one answer is cut off the money. Don't let them take such sophisticated runs at this; limit inequality constitutionally. Don't give people the tool they can use to undermine the whole decision-making process. That's proceduralism. Proceduralism doesn't try to change human nature or to eliminate power; it tries to yoke power and keep it directed towards positive purposes and barricade it's destructive tendencies. That's important progress too. Though no easy task. Power seekers are serious; they run at the constitution and laws constantly. Power seekers really focus. Also, there's a whole cultural amnesia thing. 

Anyway, Aristotle figures out a bunch more, but this is already a book. So, I'll pick this up later. But you know, it's a long story. It's as old as philosophy, but really, as old as human history. How do we make good decisions for the collective? How do we have a just society? It's every myth, every religion, every society in the history of time. But the Greeks are the ones who start to run at it scientifically. And the British come up with the other powerful tool: Deal with it one dispute at a time and write it down. The common law is amazing. It's this history of confrontation with actual, concrete problems of justice, with solutions that can evolve. They worked out a lot of really good solutions. A lot of important pieces of the puzzle come from common law. A problem just keeps coming up until it's fixed. And then, someone cracks it and it goes away. The Takings Clause - the basic solution - never gets challenged anymore. Regulatory takings was tricky, but the Takings Clause itself just works pretty darn well. It took forever, but they wrote it all down. We get the benefit of that. It's a natural history of justice. I think philosophers ignore it way too often.

But, you can see, it's not an easy thing to explain. What is a constitution? Why is our broken, precisely? Why should it be updated? What needs to be updated? Well, where to start? Though I suppose I've just started. More on this later.

STRATEGY, DEMOCRACY AND ELITISM: CONSTITUTIONAL AND POLICY CONSIDERATIONS

When discussing the notion that our Constitution needs to be modernized, I'm generally met with two types of objections. The first objection, at bottom, is that our Constitution cannot be changed because it's a sacred, unalterable holy text. The second objection is that our Constitution is elitist and anti-democratic and therefore, should be completely abandoned. I have addressed the first objection elsewhere, but little has to be said: It is not, in the end, a serious objection. The second objection, however, is a serious objection that must be addressed.

I have previously argued in favor of the possibility of a "tyranny of the majority" against minority groups. My argument is that economically stressed populations have historically been susceptible to demagogues offering a strategy of what I have termed majoritarian apartheid (anti-semitism in Nazi Germany; racism in the South).

However, there is another distinct issue with respect to democracy and elitism. Our Founding Fathers (perhaps Madison, in particular) thought that trained elites would come up with better political solutions than the hoi poloi. Various structural solutions were employed to ensure that the better educated (which for Madison also meant wealthier) citizens would have more influence. Thus, our democracy is indirect rather than direct, the Senate has more power, and so on. This concept is rarely unpacked; it is generally accepted as obviously true or dismissed as obviously false (and irredeemably elitist). I think once you start to unpack and examine this idea, it's clear that it's very complex.

The first step is to understand how we strategize. The process of strategizing is as follows: There is the situation as it happens to currently be (call this A); there is the goal (call this B); and tactics are how one gets from A to B. So, there are three components: where you are; where you're going; and how you get there. We can come up with bad solutions when things go wrong at any of these junctures.

Before I get to the elitism issue, it is worth examining the issue of goals and the constitutional solution to goals that are contrary to civic virtue.

GOALS CONTRARY TO CIVIC VIRTUE

The goal of corporations is not the common good, but rather is maximizing profits (this is required by law, by the way). So, let's examine the example of an HIV-infected blood supply. At some point, the situation faced by companies selling blood products was that they knew the blood supply was infected, there was an accurate test and some countries had passed regulations prohibiting sale of infected blood while other countries had not. The companies' tactic was to sell the HIV-infected blood to those countries that had not yet passed regulations requiring testing. The attorneys who represented hemophiliac victims reviewed the internal documents and there was never a consideration of human toll. There was the situation, there was the goal of maximizing profits and the tactics were logical in light of the goal.

So, is profit motive always bad? Is it always contrary to the common good? Does it always produce these results? Is it true that power always corrupts? Let's consider another example, also related to the AIDS epidemic.

The situation was that the government's approach to AIDS was to focus on finding a vaccine. Those infected, however, desperately needed treatment and were having no success (or very little success) getting the government to devote resources to treatment. The AIDS activists recognized that the pharmaceutical companies would profit from drugs that could treat the symptoms of the disease. The AIDS activists were able to work with pharmaceutical companies and, in fact, it was the pharmaceutical companies who ultimately discovered an effective treatment. The pharmaceutical companies later let people die and only cared about enforcing patents, but initially, their profit motive did produce something that was a benefit to humanity; many lives have been saved by this treatment.

So, one approach is to try to educate people in civic virtue so that they are not vicious. Madison wasn't against education certainly, but he thought you'd never get rid of self-interest (faction) entirely. Therefore, he favored structural solutions: first, transparency so that the public could serve as a check on corruption and second, constitutional prohibitions (what Madison referred to in Federalist No. 51 as auxiliary precautions).

Without getting too far into this, one can think of several structural possibilities: 1) removing the legal holding that corporations are only to maximize profit; 2) assess damages sufficient to make such decisions not profitable; 3) hold corporate officers criminally liable; 4) hold shareholders liable; 5) changing patent laws; etc. I have argued elsewhere that much of this would have to be constitutional (and not legislative or regulatory) because legislation and regulations are too easy to unwind. Further, I have argued that one should constitutionally limit inequality and constitutionally limit the size of corporations (anti-trust measures) so that they do not have the power to overwhelm the legal system and thwart all of the measures designed to hold them accountable. This is a classic Madisonian solution: Keep factions weak enough to control, but strong enough to function. When the United States government cannot successfully litigate against Microsoft, there's a problem. The strategy is, therefore, twofold: In the first instance limit size (of individuals and corporations) so that they can be controlled; then, review - one by one - their negative effects and prohibit them (constitutionally if necessary).

Moving on from goals to examine other portions of the strategizing process, we can begin to unpack some of the problems of elitism. As with profit-motive, elitism can be both good and bad. As always, our goal constitutionally, is to keep the good and eliminate the bad.

UNDERSTANDING THE SITUATION: TOP-DOWN VS. BOTTOM-UP

It may be that all humans are prone to hubris, but elites seem particularly vulnerable to this vice. According to Thucydides, hubris was Athens undoing.

Economists judged poverty based solely on income. Even seemingly well meaning economists would claim that sweat shops were an improvement in some situations. This person was making $1 per day and now they're making $2 per day. Well, the problem with this, as the economist Amartya Sen recognized, is that income is not a good measure of well-being. There were many agricultural communities who had very little income (and thus, from the perspective of an economist appeared impoverished) who were actually caring for their populations quite well. Everyone had food, clothing and shelter and no one had to work that hard. The people were happy and flourishing, but on paper, they appeared impoverished. According to economists, these perfectly happy people would be better off working in a sweat shop.

This is a very serious problem with elites. They assume they know more and fail to examine the situation. They don't even bother to look. These agricultural villages many have been helped with preventable diseases, but lack of income was not their problem. So, the tactics were bad - tragic, in fact - because elites did not accurately understand the situation. Amartya Sen created the Human Development Index as a mechanism to provide a more accurate measure of well being. Income and GDP growth have proven to be terrible measures of well being. However, most of the economics profession still uses these blunt (and tragically misleading) measures. Joseph Stiglitz whistleblowing with respect to the World Bank and IMF as well as Naomi Klein's Shock Doctrine also suggest that this "blindness" can be self-serving.

However, let's consider another example of failing to understand the situation. The Dust Bowl residents really had no chance of accurately understanding the situation - they were just hoping for rain. Twenty-five percent of them were forced to flee. This complex ecological problem wasn't easy for scientists to figure out. FDR had his Secretary of Agriculture study it, he was able to understand it and the government started taking measures to remedy the problem. In the meantime, the government provided food relief and job programs.

Those who assert that we should have small government or who mistrust all power or all elites have argued against federal disaster relief (Ron Paul explicitly made such an argument and he does so from an ideology that distrusts all power and denies the possibility of legitimate government). But there are clearly problems of scale that can overwhelm communities. It is particularly important that we think carefully about this issue at this juncture because climate change assures that communities worldwide will be facing these types of problems.

Finally, let us consider a third example. I have experience working with local housing development. The process in the county I have experience with is as follows: The developer submits a plan that includes engineering reports, environmental impact reports, traffic impacts reports and so on. This plan is reviewed by trained planning officials and they obtain independent review of the reports. So, at this stage, there have been two phases of expert review and, in my experience, the assessments are generally not the same. Finally, the plan is submitted to the public and the public is permitted to comment. My experience is that the public often raises valid issues that were missed by both sets of experts. Perhaps an environmental group points out that a wildlife corridor is affected; perhaps local residents point out that a children's route to and from school wasn't considered; etc. Even well meaning experts who are trying to understand the situation have difficulty appreciating all of the issues. However, those directly affected or specially interested understand the impacts immediately. We can understand issues that effect us quite clearly, but most people have difficultly appreciating all of the impacts on others. Additionally, it's simply better to democratize the process. The more people trying to solve a problem, the more likely you will be to arrive at a good strategy.

So, the relationship between top-down (elite) versus bottom-up (democratic) solutions isn't clear cut. Certainly, it is best - when possible - to empower people to solve their own problems. Moreover, when problems are of a scale that outside help is needed, it's important to accurately assess the situation and to involve the community in that process. Nonetheless, it is clear that, in some instances, expertise and perhaps resources beyond what the community has access to is required. However, it is not only mistaken, but dangerous to believe that elites always arrive at better political solutions.

How are we to work this out constitutionally? One possibility is to favor local solutions to the extent possible, but to provide for federal disaster relief for ecological, natural or economic disasters. To remedy top-down problems, install mechanisms to ensure that those providing disaster relief have considered and are sensitive to local input and concern. Finally, make sure assessments and plans are publicly available, that local comment is published and provide for independent review as well as accountability.

Economic Disasters

With respect to economic disasters, I have in mind two things.

First, economic crashes: No country facing a "liquidity trap" economic crash has been able to politically confront it, even when they know what to do. Iceland likely comes the closest to successfully confronting a crash. The causes of this appear to by multifactorial: About half of our economics profession apparently never learned Keynes so, there's a problem of cultural amnesia; wealthy interests like high unemployment; and borrowing and spending massive sums of money is a tough sell to the public. However, one could constitutionally mandate stimulus, jobs programs and debt relief necessary to restore full employment in the event of "liquidity trap" conditions which would make it so that you didn't have to get political consensus in order to confront this emergency situation. It's a disaster that unfolds very slowly, which makes it difficult to make good decisions.

There are at least two other issues here (and this is more of a note to myself): bank crashes (having to decide whether to bail them out on the spot is not a good situation for the public; some general principles regarding how these events are and are not to be handled might be appropriate) and debt levels (according to the economist Hyman Minsky there is an issue of cultural amnesia with respect to debt levels).

The second thing I have in mind with respect to economic disasters is local economic disasters, by which I mean economic events that put communities is a situation of local systemic failure. When a company leaves a company town, that town needs emergency assistance. The towns and cities impacted by NAFTA were given nothing. There was no plan in place. They need unemployment, food assistance and jobs programs until they are able to recover.

The Legitimate State and the Illegitimate Surveillance State: A Response to Will Wilkinson

Will Wilkinson has recently entered into the debate spurred by the Sean Wilentz defense of the surveillance state (and attack on Greenwald, Assange and Snowden). Wilkinson correctly points out that the liberal attack of the security state is inherently illiberal and, he says, he blames libertarianism or, more accurately, liberals inability to answer a fundamental challenge that libertarianism poses. That fundamental challenge, according to Wilkinson, is the libertarian argument against the possibility of a legitimate government. He puts the central challenge as follows:

The existence of unacceptably illiberal practices of actual "liberal" states raises a perfectly good question about whether it is realistic to expect states to refrain from these practices, or whether there's something in the basic logic of the state that tends inevitably toward the abuse of power.

I wholeheartedly agree with Wilkinsons' premise that the security state (as well as the attack on Greenwald, Assange and Snowden) is blatantly illiberal and that the security state constitutes egregious abuse of power. However, I will take up the challenge of answering whether a legitimate state is possible.

What is a Legitimate State?

Basic political theory tells us that a legitimate state is one that governs for the benefit of the people, while an illegitimate government (a tyranny) is one that governs for the advantage of a powerful few. The symptoms of a tyranny are abandonment of the rule of law and use of extreme and cruel tactics against citizens as well as others. 

Wilkinson's challenge that there is something in the basic logic of the state that tends inevitably towards abuse of power is a familiar challenge that is rooted in the maxim that: "Power corrupts and absolute power corrupts absolutely." Perhaps its most well-known modern expression is the Iron Law of Oligarchy, which holds that: "Bureaucracy happens. If bureaucracy happens, power rises. Power corrupts." Understanding how a state could be legitimate depends in the first instance on confronting the claim that power corrupts.

Power as Corrupting vs. the Constitutional Theory of Power

Tacit in the concept of the corrupting nature of power is a theory of human nature. Specifically, people are basically good, but when they gain power, they become corrupt. People are not inherently corrupt (which explains why many people aren't corrupt); it is power that is corrupting (which explains why governments and the powerful so often are). I assume this is what Wilkinson means when he says that "there's something in the basic logic of the state that tends inevitably toward the abuse of power."

However, the Framers of our Constitution recognized something much more subtle: It is not power that corrupts, but rather, if the architecture of government (its constitution and laws) allows abuse of power, that system will, over time, select for those individuals who will abuse that power at the expense of the common good. So, the basic theory of human nature is that some people are good and some are not: we are varied. If the constitution and laws allow for corruption, that system will select for those people willing to corrupt that system. Those not willing to corrupt the system will not participate and will self-select out of the competition. In Darwinian terms, you have created an environment (constitution and laws) that, over time, selects for corrupt behavior. In order to illustrate this much more subtle theory of power, we can look to the example of the right of private property under the United States Constitution.

The Constitutional Theory of Power: The Case of the Right to Private Property

The Takings Clause of Fifth Amendment to the United States Constitution provides that private property cannot be taken for public use without just compensation. The history of the Takings Clause is instructive.

In 1066, William the Conqueror seized all of the lands in England creating the power of Eminent Domain. Those living on the land were permitted to stay on the land in exchange for rent to the King. This system worked fine under William the Conqueror, who did not exploit this power (showing that it is not power itself that corrupts). However, William the Conqueror’s successor - William Rufus - was not so principled and began leveraging this power to extort excessive rents and fill his own coffers. Over hundreds of years and many bloody rebellions, the people were able to establish a balance between the right of private property and the power of eminent domain. The people have the right of private property and the government may only take private property for public use and must provide just compensation. Thus, the legitimate use of the power of eminent domain is retained, but the destructive features are checked. The government can take property to build roads, but not to fill its coffers (the public use requirement). And when that property is taken for public use, the citizen must receive compensation (the just compensation requirement). Our Constitution reads like a laundry list of these types of power-balancing solutions, where the power is harnessed to its legitimate use and its abusive tendencies are eliminated. To take another example, the government is allowed the power of search and seizure (necessary to serve its legitimate police function), but it must establish probable cause and obtain a search warrant to curtail abuses against citizens.

Our Framers just did not have the type of simplistic view of power suggested by Wilentz on the one hand and Wilkinson (and libertarians) on the other. Wilentz' defense of the oppressive surveillance state (and attack of Greenwald, Snowden and Assange) subscribes to the false dichotomy that in order to have a government capable of serving the public good, we must accept an abusive surveillance state: To do otherwise would prove the point that all government is illegitimate and we'd be libertarians. Wilkinson, however, is a bit too self-congratulatory when he implies that the simplistic view that legitimate government is impossible is somehow less problematic. It is precisely this view that leads libertarians to claim that federal disaster relief is illegitimate or that those unable to afford health care should be left to die. And when they allow for such clearly legitimate government functions, what becomes of their thesis that legitimate government is impossible? At this stage, it appears each side's view is equally problematic, as each subscribes to opposite ends of an over-simplified and unworkable dichotomy, but the problems with the libertarian theory of power do not end there.

The Libertarian Theory of Power

In addition to the simplistic (and unworkable) notion that legitimate government is impossible, the libertarian theory of power suffers from a second weakness: Libertarians recognize only one power - the power of the state. Or, more specifically, the authority of the law backed by the police power. However, it is clear that there are three powers that were considered tyrannical by our Framers and a fourth that can act in service of tyranny or in service of the people.

The three tyrannical powers considered by our Founding Fathers are: the police power; the power of wealth and the power of the majority. The fourth power is the power of information, which can result in all manner of abuse, including: secrecy, compelled testimony and illegal search and seizure. Such abuses are thwarted by both prohibitions on the abusive behavior (no compelled testimony and no illegal search and seizure) as well as enhancing the rights of citizens (free press, the right of privacy, the right of assembly and free speech). Pursuant to this more sophisticated, constitutional view of power, it is perfectly consistent to claim the legitimacy of government and that the surveillance state is abusive.

• Tyranny of the Majority

The most controversial aspect of our constitutional theory of power was set forth in Madison's discussion in Federalist No. 10 of a concept that is most commonly referred to as "tyranny of the majority" (though this term was not used by Madison). This is often considered to be a mere expression of elitism that, for some, supports the conclusion that our Constitution was motivated by the personal financial interests of our Founding Fathers. However, the notion that the concept of "tyranny of the majority" was an expression of elitism assumes that Madison was wrong and it is clear he was not. A majoritarian strategy of dispossessing a minority of "life, liberty or property" is a real threat, especially in the face of persistent economic crisis. Following World War I, the Allies imposed brutal austerity on the Germans. In Economic Consequences of the Peace, Keynes condemned the harsh terms and predicted a second world war. Keynes was correct: Hitler's strategy to end Germany's economic suffering was to dispossess the Jews of their "life, liberty and property" and redistribute the property to the "Aryan" Germans (a strategy that was economically successful). Any time a population faces persistent austerity, there is a danger of mass movements promoting this type of majoritarian apartheid (whether it's racist, anti-immigrant, religious, etc.). Thus, the danger of the "tyranny of the majority" is quite real and protection of minority rights is critical.

• Oligarchy - the Power of Wealth

However, protecting minorities from majoritarian tyranny is not an invitation to oligarchy, which is the third form of tyrannical power recognized by our Founding Fathers. Jefferson specifically recognized overgrown wealth of an individual as a danger to the public good. However, common misconceptions of the nature of oligarchy as well as a novel form of oligarchy that exists today have obscured this form of tyranny not only from libertarian view (libertarians are completely blind to oligarchy), but from modern view generally.

Oligarchy and Elitism

The so-called Iron Law of Oligarchy posits:

Any large organization ... has to create a bureaucracy in order to maintain its efficiency as it becomes larger - many decisions have to be made daily that cannot be made by large numbers of disorganized people. For the organization to function effectively, centralization has to occur and power will end up in the hands of a few.

This accepts a common (but incorrect) definition of oligarchy as "rule by the few." As Jeffery A. Winters argues, this "elite theory" is a misunderstanding of oligarchy. Elites are not the problem (in fact, uncorrupted expertise is a benefit). The problem is the power of wealth and specifically, fortunes so vast that they can be leveraged to corrupt an entire political process - elections, the media, lobbying of representatives, revolving-door corruption of administrative agencies, paid scientific experts, drafting of legislation and so on. Thus, oligarchs are not elites and are not the result of ordinary (even fairly marked) inequality. Oligarchy results from vast concentration of wealth; the type of wealth that can thoroughly corrupt an entire political system.

Consider the following thought experiment. I grew up in a community protected by levees and the integrity of the levees was a constant concern. There was a group of  City employees who monitored the levees. Imagine the levee slumps and the community meets to discuss the matter. The City employees who monitor and are responsible to maintain the levees explain the situation and offer a repair recommendation that the community votes to accept. The levee is successfully repaired. The City employees' expertise gave them additional influence, but it is proper influence that inures to the benefit of the community. Uncorrupted expertise is not oligarchic; it is, in fact, entirely legitimate and beneficial.

Now imagine, on the other hand, that a group with extreme wealth had been permitted to make significant campaign contributions to many of the community's elected officials and owned all of the community's media and was able to hire sophisticated experts to argue that the entire levee needed to be replaced at the community's expense. Perhaps the local experts are smeared in the media and ultimately, the wealthy group is able to obtain a contract to rebuild the entire levee system (an action that is entirely unnecessary). The campaign contributions were secret. The corporate-owned media reports on allegations against the local experts and gives air time to the sophisticated experts and bribed community leaders. The oligarchs never personally appear and there are numerous front companies obscuring ownership both of the company that obtained the contract and the media ownership.

When people or groups are able to do this on the national level, the resulting government is an oligarchy. If those persons or groups are disarmed (meaning they do not have official control of the police power), it is a form of oligarchic government Winters has termed a "civil oligarchy."

Civil Oligarchy

Winters explains that civil oligarchy - our form of oligarchy - is relatively new. In the past, oligarchs existed, but they were armed (meaning they themselves possessed police power). This traditional form of armed oligarchy is what was known to and considered by our Founding Fathers (and indeed, if oligarchs had police power, they would be subject to significant constitutional limitations; under current judicial interpretation, oligarchs have the rights of citizens). Winters explains that in post-Renaissance Italian city-states, oligarchs came to be disarmed. Though it caused them great worry at the time, it did not prove a problem as civil oligarchs have consistently been able to corrupt governments to an extent that they can use the police and military power of the state for their own purposes (and, even better, they can do so at taxpayer expense). Libertarians utterly fail to appreciate the abusive potential of the power of wealth: It is a tyrannical force that is every bit as destructive of the body politic as abusive police power.

I have argued elsewhere that our pre-industrial Constitution should be modernized to confront this new form of oligarchy as well as other matters that could not have been foreseen (like treatment of internet communications), but that consideration is beyond the scope of this essay.

Constitutionally Checking Tyrannical Powers

Our Founding Fathers recognized that one cannot just limit tyrannical powers, the rights of the citizen must be strengthened so that the citizens can properly check tyrannical abuses and indeed, effectively govern (it is the people who are sovereigns of a democracy). There must be a free press so that citizens have accurate information; a citizenry without accurate information cannot make good decisions and therefore, cannot serve as a check on abuses of power or exercise their democratic responsibilities wisely. Further, the citizens must be able to assemble and must have the right of free speech so that they can come together to discuss and solve problems of common concern, even if their concern is abuse of power. Additionally, the citizens must be free from invasions of privacy and suspicion-less search and seizure so that they may not be spied on by tyrants seeking to maintain illegitimate power. These are the conditions of a democracy: All tyrannical powers must be fettered and harnessed to the public good, their abusive tendencies must be thwarted and the citizens must have the necessary tools to check tyrannical powers. It is a theory that is consistent both with the notion of legitimate government and with opposition to the abusive surveillance state.

This is the answer to what Wilkinson refers to as the "libertarian challenge." However, it is clear that it is not so much a challenge as the opposite side of a false dichotomy that simplistically assumes that government can never be, or must always be, legitimate.

The Stakes of the Austerity Debate

The Stakes of the Austerity Debate

Is Economics a Morality Play?

Those economists arguing for Keynesian stimulus policies are having a very hard time getting people on board. We've only been able to muster a half-measures stimulus plan and now we (and all of Europe) are on a course of pretty savage austerity plans, which are going to result in a lot of suffering and - as Keynes recognized - will end in violence if not solved (Keynes accurately predicted that austerity for Germany after WWI would lead to another world war). 

Keynesian liquidity-trap policies prescribe massive state borrowing and spending. This is a tough sell. We're trained to see debt as dangerous. This is certainly true on a household level, but it seems there are plenty of macroeconomists who are debt worriers as well. The retort - which is insightful, but dangerously inaccurate - is that economics is not a morality play. In liquidity-trap conditions, virtue is vice and vice is virtue. This is insightful, but dangerously misleading. To understand why, you have to first understand Virtue Theory.

Virtues are Tactics

Virtue Theory, developed by the Greeks, is a theory that states that whether something is a virtue or vice depends on context: Specifically, it depends on what your situation is and what your goals are. Virtues are those tactics that help you achieve your goal in a given situation and vices are those tactics that hinder your progress towards that goal. Homer brings home this insight.

Homer's situation is that the Trojan War happened, which was definitely a big war by the standards of the day. So, the Greeks sail over to Troy, expecting to roll over the Trojans, and end up in a protracted battle. Their tactics get more sophisticated as the war goes on and they ultimately win the war with the Trojan-Horse tactic. However, the war is now over and people forget about the Trojan War. As an important side note, cultural amnesia is really common; the economist Hyman Minsky noticed this tendency of cultural amnesia with respect to debt. There is a societal tactic for dealing with cultural amnesia: You write the lessons into your myths or holy texts or, in our case, into a constitution. Putting such historical lessons into legislation or regulation does no good because they're too easily unwound; lessons prone to cultural amnesia must be contained in documents that are very difficult to revise, which explains the rules against alteration of holy texts (though even that happens - the Council of Nicaea, the King James Bible, etc.).

Homer is telling a story (creating a cultural myth) to make sure the lessons of the Trojan War are remembered by future generations. His analysis is basically this: If your only tool is a hammer, you're going to lose (no matter how great your hammer is). Hammers are good; we like hammers; but you need more tools or you're going to be in trouble. So, in Homer's story, Achilles is the hammer. Best hammer ever to live, in fact. But even the best hammers have an "Achilles' heel."

So, the second half of Homer's epic focuses on the clever Odysseus. Odysseus has a lot of tools in his tool box. When he meets the Cyclops he rules out the tactic of physical force and instead outwits the large, but dense cyclops. At times Odysseus uses trickery, at times he uses charm and so on. He is a man who is able to accurately analyze the situation and successfully devise tactics to solve the specific problem he's confronting. So, what Homer teaches, is that what is virtuous (tactically smart) in one situation is actually a vice (not tactically smart) in another situation. Virtues are tactics. 

How Historically Specific Tactics (Virtues) Gain Moral Force

So, let's say you're a warrior society. What are the virtues of being a warrior? Aggression, strength, bravery and so on. As a society, these are the virtues you teach your young and there's lots of stories of brave heroes, etc. These are the attributes that the society praises. These attributes quickly gain a moral force. Perhaps you see retreat as cowardly (even though retreat is often the best tactic in a given situation). Over time, these virtues (tactics) become morals to be applied in every situation. You should always be brave and face death. Always. Homer created a historically-based myth so that the Greeks would not forget that virtues (tactics) are context-dependent.

Thus, to say that a given virtue (successful tactic) is always a virtue (successful tactic) is to completely misunderstand Virtue Theory. It's an argument that would make Homer (and the philosopher of Virtue Theory, Aristotle) roll over in their graves. 

The Tragedy of Virtues Gaining Moral Force

During WWII, we had to develop a warrior ethic in a hurry. Our strategy included invading Normandy, taking over Japanese islands one by one: It was a strategy that heavily relied on the tactic of attrition and we quickly developed a cultural ethos appropriate to that tactic. The men that invaded Normandy remain national heroes. Now, this was appropriate to the situation. There's nothing wrong with the hammer as tool. At times, the hammer is the tool you need.

However, through the lens of that ethos, we tend to view the Polish Cavalry's stand against the blitzkreig as positive and brave and France's surrender as negative and cowardly. However, from the perspective of military strategy, Poland was a disaster. It's cavalry didn't have a chance in hell and Poland's population was slaughtered by the millions (about half were Jewish).

A very good strategy was developed and implemented by Denmark. Denmark immediately surrendered and was able to negotiate pretty good terms. They were able to stay in power and were only overseen by Nazi officials. They were very nice to the Nazi officials and started working very hard on promoting Danish unity - all Danes are Danes, whether they are Jewish or not. Berlin was pushing to do something about the Danish Jews, but the Danes were able to buy time and the Danish Jews stayed safe. Finally, the Danes could buy no more time. The final word came from Berlin to round up the Danish Jews. A Nazi officer tipped them off that it was happening. All of the Danish officials resigned creating an administrative mess that would take time to resolve. All of the Rabis were called and told to mobilize the Jews to escape Denmark. Groups of citizens went through phone books calling every number with a Jewish name and telling them to tell all of their friends. Other groups mobilized to help with the escape. Almost all of Denmark's Jews escaped to Norway and survived the Holocaust. Now, it's true that Denamrk only had a small number of Jews (especially compared to Poland). But the point remains that Denmark's tactic of immediate surrender (which we have historically looked down on) was a very good tactic.

So, it reflects what appears to be an intuitive understanding of Virtue Theory when Keynesians say that in a liquidity trap, what was virtue is vice and what is vice is virtue. However, the better way to say it is that virtues (tactics) depend on the situation and your goal. The point - the WHOLE point - of Virtue Theory is that virtues (tactics) are not static; they are not appropriate in all circumstances. But the fact that training imbues virtues with moral force makes it a very tough sell. However, there is no excuse for trained economists to engage in these types of arguments; it is a deeply anti-scientific position to take.

The Stakes

Is it true that economics is not a morality play? No, it is not! An economy that enriches the few and increases human suffering is immoral (the Greek term is tyranny); an economy that operates for the good of all the people and minimizes human suffering is moral. When one reads Keynes it is impossible not to feel his deep desire to minimize human suffering. In The Economic Consequences of the Peace, his writing becomes altogether un-academic as he insists that the austerity imposed on Germany is abhorent and detestable (he repeats this and uses an exclamation point for emphasis). He was certainly a great economist, but he was also clearly a great man. Keynes very clearly saw the economy as a profound morality play. This is not an academic debate or a game; these policies will decide whether actual, real-life human beings suffer (by the millions). Deciding whether to pursue austerity or stimulus, according to Keynes, is not your ordinary policy decision: The wrong decision will cause deep suffering and ultimately, lead to violence. As someone trained in history, I can confirm that this is the case. When societies are subject to persistent economic crisis and the problem is not solved, that society is hurtling towards profound tragedy. It is for this reason I hate the saying: "Economics is not a morality play." Sometimes - and austerity policies in depressed conditions is one of those times - economic policies are as moral as decisions to go to war. If Keynes is correct, they are decisions that can cause war. Thus, it might be true that not all economic debates are morality plays, but we must be very clear that this one most definitely is.

It is those arguing for stimulus who have morality on their side in the most profound sense possible. In terms of winning this debate, it is a serious tactical error to give up that moral high ground and claim "economic is not a morality play" over issues like borrowing at basically zero interest or punishing lazy slackers. The moral stakes are much higher than that and winning the moral argument matters.

Inequality as a Problem of Constitutional Law

We are a system that is no longer capable of self-correction. Any system - any organism - that is no longer capable of self-correction dies. - Jared Bernstein

The historian of science, Thomas Kuhn, set forth the process of scientific revolutions as follows: A paradigm shift (a revolution) creates a new paradigm. Over time, that paradigm develops anomalies. The theory is reformed to accommodate each anomaly. Eventually, the paradigm reaches a crisis, meaning it is no longer capable of reform. A new paradigm emerges which solves the anomalies. This is known as a paradigm shift or revolution. This is where I believe we are. Our current cultural, political and economic paradigm has reached a state of crisis and reform of the paradigm is no longer a viable option. We must have a completely new paradigm. My thesis is that what is required is a thorough modernization of our Constitution. And it appears this may be an easier task to accomplish that we might imagine.


With respect to our Constitution, my analysis seeks to restore the spirit of our Constitution, but suggests modernization to confront and fetter the power of global oligarchs and to confront technological change as well as emergent problems with war power. Ultimately, our Constitution appears like a great innovation that was never updated to confront global oligarchs and multi-national corporations - powers every bit as destructive as the unfettered power of the state. Senator Franken has suggested a constitutional amendment to the effect that "corporations are not people." This would certainly be helpful, but in my view, not even close to enough. Effectively restraining the negative effects of oligarchs and corporations, requires the kind of procedural “shock and awe” our Framers employed against the police power. This requires not only restraining the specific negative effects of such powers (all of them that can be identified), but of strengthening the rights and institutions of the people. With respect to our economic system, I believe what is required is to make it a political economy and not merely a stand-alone economic system. Currently, our economic theory operates without any stated goal other than GDP growth. We know that it is actually operating very efficiently to enrich the very wealthy, but even those who seek to reform it are consistently unable to connect economic arguments to a coherent political theory. At times John Rawls is called into service and at times Utilitarianism, but most often, no reason is given at all. I actually believe Keynes understood intuitively the political theory I’m advocating, but he never developed it as a political theory. My argument is that the political theory understood by Keynes is enshrined in our Constitution, but its purpose has been wholly undermined by circumstances not anticipated by our Founding Fathers.

The Purpose of Constitutions

A constitution has two purposes: First, it checks and balances power so as to create a government operating for the good of the people and not solely for the benefit of the few (tyranny). This requires a theory about human nature with respect to power and a theory of how to not only restrain that power, but to harness it for the public good. Second, a constitution necessarily embodies a theory of the purpose of government. I argue that our Constitution’s theory of the purpose of government is that the purpose of government is to provide the conditions necessary for human flourishing, which in our founding documents is defined as inalienable rights to “life, liberty and the pursuit of happiness.”

The Problem of Power

 It is a well-known saying of the Anglo-American tradition that: “Power corrupts and absolute power corrupts absolutely.” So, the basic theory of human nature is that people are basically good, but something happens when they get too much power. However, our Founding Fathers recognized something much more subtle: It is not power that corrupts, but rather, if the system of government (its constitution) allows abuse of power, that system will, over time, select for those individuals who will abuse that power at the expense of the common good. So, the basic theory of human nature is that some people are good and some are not: we are varied. If the constitution allows for corruption, that system will select for those people willing to corrupt that system. Those not willing to corrupt the system will not participate and will self-select out of the competition. Thus, if a tyranny exists - that is to say if a government is governing for the benefit of the few - it is not human nature that needs to be changed, but the constitution. In Darwinian terms, you have created an environment (a constitution) that, over time, selects for that behavior.

The communist solution to profit-motive was to re-educate and punish in order to stamp out such impulses; the neoliberal solution to altruism (and any mention of redistribution) is to shriek and brand all such talk as class warfare (and, of course, hunt down every last communist on the face of the earth). But our Framers saw all human motives as: 1) the inevitable product of liberty (liberty is to faction as air is to fire); and 2) capable of being harnessed in service of the public good and restrained from their destructive tendencies. The Takings Clause of the US Constitution provides a good example.

In 1066, William the Conqueror seized all of the lands in England creating the power of Eminent Domain. Those living on the land were permitted to stay on the land in exchange for rent to the King. This system worked fine under William the Conqueror, who did not exploit this power (showing that it is not power itself that corrupts). However, William the Conqueror’s successor - William Rufus - was not so principled and began leveraging this power to extort excessive rents and fill his own coffers. Over hundreds of years and many bloody rebellions, the people were able to establish a balance between the right of private property and the power of eminent domain. The people have the right of private property and the government may only take private property for public use and must provide just compensation. Thus, the proper use of the power of eminent domain is retained, but the destructive features are checked. The government can take property to build roads, but not to fill its coffers (the public use requirement). And when that property is taken for public use, the citizen must receive compensation (the just compensation requirement). Our Constitution reads like a laundry list of these types of power-balancing solutions, where the power is harnessed to its proper use and its abusive tendencies are eliminated. To take another example, the government is allowed the power of search and seizure (necessary to serve its police function), but it must establish probable cause and obtain a search warrant to curtail abuses against citizens.

It is important to note that our Framers did not just limit state power, they strengthened the rights of the citizen so that the citizen could properly check police power abuses or indeed, govern (it is the people who are intended to be the sovereigns of a democracy). There would be a free press so that citizens would have accurate information. Imagine, for example, if a citizenry were misinformed about whether a state was manufacturing weapons of mass destruction and consented to war on that basis. A citizenry without accurate information cannot make good decisions and therefore, cannot serve as a check on abuses of power. Further, the citizens must be able to assemble and must have the right of free speech so that they can come together to discuss and solve problems of common concern, even if their concern is abuse of power. Additionally, the citizens must be free from invasions of privacy and suspicion-less search and seizure so that the government may not oppress those citizens who have assembled with the goal of checking abuses of power. These are the conditions of a democracy: Powers with destructive force must be harnessed to the public good, its abusive tendencies must be thwarted and the citizens must have the necessary tools to check abusive powers.

While England has a long history of checking police power (and that history is reflected in our Constitution), our Constitution is a pre-industrial document that did not foresee and therefore, did not adequately check, the power of global oligarchs and multinational corporations. From a constitutional perspective, the question is not whether markets or profit motive are good or bad. The constitutional approach suggests they are useful powers and motives which must be kept to their productive use and kept from destructive ends. Thus, the constitutional viewpoint is that profit motive and access to private property and capital is good when properly harnessed and checked, but can become a destructive force when structurally permitted to do so and not properly checked by an informed citizenry. This would suggest not a minor constitutional revision, but a thorough modernization. One provision will not do: You would have to approach oligarchs and corporations with the type of procedural “shock and awe” our Framers brought to bear against the police power. Each case of historical abuse, market failure and perverse incentives is considered and the rules required to enable and harness the power of wealth towards productive purposes are enshrined in the Constitution, not in legislation or regulations where such reforms can be easily eroded.

General Outline of a Modernized Constitution

So, what would such a constitution look like? Many people believe that the answer is to simply say that corporations are not people. But it is not so simple. When one looks at our Constitution it is clear that corporate power just was not considered. It is not just a matter of saying corporations are not people; we must consider their proper use (as a tool of innovation) and keep them from their destructive tendencies. For example, a corporation should be able to petition the government for redress of grievances, but we do not want that to become a system of bribery. So, a rule for effective, but not abusive lobbying is required so as to allow access, but not undo influence. Corporations' contribution to elections should be strictly confined if not eliminated. The problem of monopolies and too-big-to-fail banks should be constitutional (as legislative acts are too easy to unwind). Worker’s rights to organize should be constitutionally guaranteed. The media should be free from both undo state and corporate influences. The problem of revolving-door corruption, environmental externalities and corporate liability require constitutional solution. Income inequality will have to be limited constitutionally. Corporations proprietary (anti-innovative) tendencies will have to be checked. The list is quite long, but the solution must be constitutional (legislation and regulations would be piecemeal and quickly undone). Moreover, it will necessarily require multiple provisions that not only harness markets, but strengthen the citizens' ability to serve as a meaningful check against abuse.

In addition to harnessing potentially destructive powers to their productive purposes, a constitution sets forth a theory about the best form of government. Our current cultural narrative comes from Ayn Rand. The system, in her view, should be designed to reward the industrial producer/job creators. Selfishness and the profit motive is not only good, altruism is evil. The youth are told to work hard and gain the technical skills to work for the productive, industrial corporations or the bureaucracy of the state (the ultimate prize, of course, would be to become an oligarch). The non-producers are lazy parasites who should not be encouraged in their laziness by government hand-outs. The counter to this story in our culture comes from “The Reformers.” The Reformers accept the central Randian premise: Yes, the goal should be to maximize production. However, the Reformers believe that the people who have succeeded are not necessarily the best, but are mainly lucky. Society’s winners were born to good families, they are mainly white, they are mainly men, they are mainly able bodied and so on. The losers are not inferior, they are just unlucky and therefore, the humane thing to do is to provide them with a safety net. 

However, our Constitution provides a radically different vision that interestingly, has economic support. Paul Krugman won the Nobel Prize for a theory of trade which suggests that trade advantages are created by innovation. Innovations created in a location - say in textiles - create an advantage that entrenches and it makes it difficult for other nations to catch up. This has radical implications from the perspective of political theory because it means that it is not the industrial job creator that we wish to nurture, but the creative innovator. We do not wish to have a society that encourages industrial productivity, but rather, a society that actively encourages creativity and innovation. This was indeed the view of Aristotle and it is enshrined in our founding documents as the inalienable rights to life, liberty and the pursuit of happiness. What this meant for Aristotle and our Framers is that in order to be a creative innovator, you must be secure in the necessities of life (the right of life), you must be free from state or economic coercion (the right of liberty) and you must be free to pursue any interest you desire (the right to pursue happiness). These conditions, Aristotle and our Framers believed, are the source of creativity and innovation. The more of your citizens that have these conditions, the more enhanced your national ability to create and innovate, which, according to Professor Krugman’s theory, is the true wealth of nations.

This is not a childhood spent coping with economic crisis, state repression or engaging in only technical training useful to corporations or the state. It is a childhood where your material needs are met, where you are safe, where you are free from economic and state coercion and are allowed not only to receive training in science and art at public expense, but you are free to explore, imagine and interact with your environment. Its agricultural version is Jefferson’s yeoman farmer which we can hear echoes of from the farmer, author and environmental activist Wendell Barry. In its 19th century version, it is the childhood of Tom Sawyer. And in its post-war version, it is the egalitarian suburb where Paul Krugman read Isaac Asimov, dreamed of being an economist and won the Nobel Prize. Could that have happened in post-NAFTA Flint, Michigan? The people in Flint, Michigan are neither less talented nor unlucky, we let that happen. And if Professor Krugman’s theory of trade is correct, we did so at great cost not only to those individuals and their communities, but to our national economy. Economic dislocations that create a threat of local systemic failure should be treated as disasters and those communities should be supported in the same way banks are supported when they create the risk of national systemic failure: They should be supported so that they and their children are not condemned to a life of economic crisis, dislocation and erosion of skills. The effects of these events must create disadvantages that reverberate for generations. When food stamp recipients in disaster-stricken, abandoned communities create soda economies, I do not see vice that should be punished, but wasted innovative potential.

The political philosopher Martha Nussbaum has given us a more detailed version of the conditions of human flourishing as well as some broad suggestions for specific constitutional rights:

1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one's life is so reduced as to be not worth living.

2. Bodily Health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.

3. Bodily Integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction.

4. Senses, Imagination, and Thought. Being able to use the senses, to imagine, think, and reason—and to do these things in a "truly human" way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one's own choice, religious, literary, musical, and so forth. Being able to use one's mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise. Being able to have pleasurable experiences and to avoid non-beneficial pain.

5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one's emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial in their development.)

6. Practical Reason. Being able to form a conception of the good and to engage in critical reflection about the planning of one's life. (This entails protection for the liberty of conscience and religious observance.)

7. Affiliation.Being able to live with and toward others, to recognize and show concern for other humans, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation, and also protecting the freedom of assembly and political speech.)

8. Having the social bases of self-respect and non-humiliation; being able to be treated as a dignified being whose worth is equal to that of others. This entails provisions of non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin, socio-economic status and species.

9. Other Species. Being able to live with concern for and in relation to animals, plants, and the world of nature.

10. Play. Being able to laugh, to play, to enjoy recreational activities.

11. Control over one's Environment.

• Political. Being able to participate effectively in political choices that govern one's life; having the right of political participation, protections of free speech and association.

• Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers.
(I would add access to capital, freedom from excessive debt, no debtor's prison, bankruptcy rights).

This is the vision of the life of a citizen of a democracy. Does it lead to laziness? History tells us the contrary is true. As Adam Smith noticed, free and secure citizens given access to property and capital are furiously productive. It is only when denied opportunity that individuals are driven into inactivity and their skills allowed to erode. It is, therefore, opportunity that creates productivity and lack of opportunity that harms productivity. Lack of productivity does not exist because people are not desperate enough; according to Aristotle and our Constitution, exactly the opposite is true. It is precisely when people lack the basic necessities that they lose their ability to be productive. Cutting benefits and failing to provide stimulus to disaster-stricken communities is not only cruel, it is an affront to the spirit of our Constitution. There are citizens whose innovative potential is being wasted to their own detriment, almost certainly to their children’s detriment and, finally, to the detriment of our nation's wealth.

Thus, if we were drafting a constitution, it would include rights supporting the vision of life suggested by Professor Nussbaum and it would include the current elaborate checks on police power as well as added elaborate checks on the power of wealth. Moreover, it would have to strengthen democratic rights of a free press (free from state and corporate influences), free access to the internet and all academic publications. It would have to modernize the checks on police power to include internet communication. It would have to modernize the war powers to include situations not considered by our Framers (for example, attack from stateless individuals, intervention in a foreign war involving genocide, intervention in a foreign civil war, intervention in a foreign war based on invasion of a weaker nation or breach of international treaty, etc.; it is clear our Framers only considered civil war and attack by a state, no other situations were, or fairly could have been, foreseen). Finally, unlike our Framers, we have the ability to measure and monitor abuses of power as well as the happiness of our citizens (see, for example, Amartya Sen's Human Development Index; this could also be bolstered with monitoring of inequality, monitoring of corruption, monitoring of imprisonment rates, monitoring of imprisonment of journalists and whistleblowers, monitoring of failure to prosecute known lawbreakers in positions of power, etc.).

As someone trained in political theory and constitutional law, our Constitution looks like the first computer ever invented tying to run a modern, industrial society. Our Constitution was an amazing innovation (its defects notwithstanding), but it can and should be modernized to restore the original intent of a democracy with citizens given the conditions and tools necessary for innovation. That is the vision of the inalienable rights to life, liberty and the pursuit of happiness. The state has its uses and must be large and vital. Similarly, private property, capital and corporations are useful tools to enable innovation. However, the state, capital and corporations must be humble servants of an innovative citizenry; never their masters.

This is possible, but will require a thorough (not piecemeal) modernization of our Constitution. Though this may seem an ambitious undertaking, it has three virtues. First, it is still an option open to us as citizens, even though our efforts at lobbying and electoral correction have utterly failed (and, in my opinion, cannot succeed). Second, it suggests a powerful coalition of groups that do not currently see themselves as related: from labor, to environmentalists, to those concerned with inequality, to those concerned with corporate abuse, to those concerned with internet privacy and state transparency, to those concerned with excessive war powers and so on. Third, it may not be as difficult as we assume and may be possible through majority vote. If we do not constitutionally check the power of the corporate state and modernize our Constitution, reform will come in inches and be eroded in days and, as Keynes understood, violence will be the inevitable result.

The problem of inequality - and indeed a host of problems - are problems of constitutional law. Our democracy is broken, but it can be fixed: deliberately, lawfully and without bloodshed. Many will balk at the notion of modernizing our Constitution. However, we are citizens of a nation founded on principles of the Enlightenment. We must be determined to see the Constitution as a tool to be refined and not as an unalterable holy text. Our pre-industrial Constitution cannot be fixed through minor amendments (like that suggested by Senator Franken). The time for reform is past and would not accomplish our goals even if they could succeed. What is required now is a radical rethinking of our Constitution so as to restore it to its original purpose of providing its free citizenry with the conditions and tools of creative innovation.