Transferring policymaking power to judges - the effect of judicially enforceable constitutional restraints is not a defensible alternative to majority rule.

• Author: Graglia, Lino

In Supermajority Rules as a Constitutional Solution,(1) John McGinnis and Michael Rappaport tackle nothing less than the basic problem of government: how to keep it from serving private interests rather than the public interest. Government--the grant of power to some people to exercise coercive force over others(2)--is infinitely dangerous;(3) unorganized individuals do not commit genocide or impose mass famines.(4) Why have government, an instrument of coercive transactions, when voluntary, free-market transactions are necessarily mutually beneficial and therefore wealth-increasing? The answer, at least in economic terms, is that because of "market defects," free markets do not always operate to increase wealth.(5)

McGinnis and Rappaport point out that a basic purpose of government is to correct one of these defects by making possible the production of "public goods" that the market cannot produce easily. These goods include national defense or the rule of law, which once produced, benefit everyone, including those who do not contribute to their cost.(6) Government is necessary to overcome this "free-rider" problem by coercing contributions.(7) Government may also be necessary to deal with negative "externalities," such as air and water pollution, that result from productive activities, when the number of people involved is so large that transaction costs preclude settling the problem by private contracts.(8)

Once government is established for these good purposes, however, individuals will be tempted to use it to obtain subsidies, that is, to extract wealth from others.(9) An inherent defect of democratic government, or at least of the American version of democratic government, our authors argue, along with Milton Friedman and many other conservatives, is that subsidy or "rent-seeking" private interests often have advantages that enable them to prevail over the public interest.(10) Special interest groups, such as sugar producers or the elderly, may by concentrated effort be able to obtain a subsidy that is enormously beneficial to each member of the group, but not sufficiently harmful to the general public to bring forth effective resistance.(11) To some extent, the people are trapped in what is known in game theory as a prisoner's dilemma: it is in the interest of each group to expend efforts to obtain a subsidy, although everyone would be better off if there were no subsidies.(12) The inevitable result, the argument goes, is a national government that spends more money than a majority of the people want it to spend.(13)

It is this problem that is the basis of the always nearly, but never quite, successful movement for a Balanced Budget Amendment to the Constitution that would prohibit deficit spending except in certain emergencies.(14) It is also at least partly behind the movement for campaign finance reform, which would limit campaign expenditures and individual contributions, and for term limits.(15) Both would help counter, their proponents believe, the advantages of special interests. The Balanced Budget Amendment, however, our authors point out, would not limit spending in general, but only deficit spending, which Congress could avoid by raising taxes or printing money.(16) Campaign finance reform, at best a very indirect means of limiting spending, is often popular with legislators primarily because it tends to protect incumbents.(17) The media and academics find campaign finance reform attractive primarily because it enhances the power of opinion makers over the power of money.(18)

McGinnis and Rappaport believe they have a better idea: limiting spending by requiring a legislative supermajority.(19) They do not propose a simple supermajority requirement for the passage of every spending bill, however, because that would create serious "holdout problems."(20) A supermajority requirement means that a minority of legislators can defeat a measure, which in turn means that a legislator who would ordinarily vote for it would have an incentive to withhold his vote unless he obtains some concession.(21) McGinnis and Rappaport therefore propose a two-part plan.(22) First, they would require supermajority authorization in order for Congress to be able to spend in any year more than ninety percent of what it spent in the prior year.(23) Second, they would require a moderate supermajority of three-fifths or two-thirds to pass bills that enact or expand an entitlement program.(24)

I agree with McGinnis and Rappaport that the national government probably spends much more than most people want it to and that the nation would be better off, economically and socially, if its spending for what appears to be...