Russell Hardin, “Why a Constitution?”

Why a Constitution?

Russell Hardin

The Federalist Papers and the New Institutionalism, 101-120

I think this is a great paper for a number of reasons. It is just about the perfect length, has a good blend of constitutionalism and game theory, and lastly makes a clear, concise, nuanced, and intelligent claim. And it didn’t go into page long mathematical proofs! So, here is the inaugural post for the Law Rules blog!

What is a constitution (not)?

Well, we might like to think of it as an embodiment of a “social contract” or something. Hardin thinks not. He thinks there are two reasons why we tend to think that:

(1)   It seems to be a good metaphor for a big contract that we all explicitly or implicitly agree to

(2)   There is some normative force behind calling a constitution a big contract, because contracts are usually thought to be binding and important to follow

Hardin spends his time rebutting claim (1), which, if we buy it, takes away the force of claim (2).

Quick Game Theory Review

These three types of games become important later on:

“Pure Conflict”- I want the last cookie, and so do you.

“Pure Coordination”- We’re lost at the mall and are picking meeting places where we think each other will be.

“Mixed”- A prisoners’ dilemma.

Then what was the Philadelphia Convention for our Constitution?

Well, it was mixed. But importantly, it had a lot of coordination to it. Anti-federalists wanted a certain type of government, which in many ways was contrary to the Federalist ideals and vice versa. So, in that way it was conflict. But, both had a common interest of creating any union better than the Articles of Confederation government.

So, in order of preferences it probably looked like:

Federalists:

#1 Choice: A Federalist Constitution

#2 Choice: A Constitution with some compromises that the Antifederalists (or at least 9 states) would agree to

#3 Choice: Status Quo (Articles of Confederation)

Anti Federalists

#1 Choice: An Anti-federalist Constitution

#2 Choice: Almost anything better than the status quo

#3 Choice: Status quo

So, in my understanding their ideal first choices were in mostly pure conflict. But, they had a lot in common and weren’t really looking to ruin the other party. They just had different ideas about governing. So, they had to coordinate on that perfect balance of a number two choice. And, actually, they seemed to have had some pure cooperation of avoiding both of their third choices.

So, they coordinated on one particular governmental set up.

Another important note is that “they” of course did not include slaves, women, or even all states at first. Rhode Island, for instance, really rejected the Constitution at its state ratification, 2711 to 239. But after 2 years they seemed to notice that the existing Constitution had become entrenched and political debate now largely centered around it and nothing they could do would change that, so joining was the smarter move.

Also, Hardin makes a very nice point that illustrates how little “agreement” is required with a constitution: the records of how the Convention came up with the Constitution were kept secret until all of the members of the Convention died. So people were operating on it without really knowing how it came about, let alone agreeing to each individual part of it.

{Comment from Dr. Calvert}

“It’s not so much an “absence of strong disagreement” that makes it possible, but rather enough agreement that, for anybody else, disagreement would be too costly.  And this leaves open the possibility that very FEW strongly agree, with others just under the impression that everyone else is going along.  A quite deficient equilibrium can be sustained on unfortunate mutual expectations.”

Once we had it, the incentive is to keep it

In a contract, we generally follow it because of the threat of external sanctions (I’ll sue you, or you will go to jail). We abide by the Constitution, because usually it is so costly (not just in terms of money) to collectively institute a new one. Can you imagine a Constitutional Convention today in the United States?

So, “why a written Constitution?”

Hardin nicely answers: You cannot simply commit yourself and have it stick. This is a theme in the next article I will look at, Myerson’s “The Autocrat’s Dilemma. But, a constitution is good for making self enforcing arrangements for making you accountable for your acts.

What’s the difference between a contract and a constitution?

Here are the highlights:

Constitution Contract
When? Comes 1st Comes 2nd only after a constitution
To do what? Solve big coordination problems Solve prisoners’ dilemmas
Frequency? Long term strategy (iterated) One shot (usually)
Agreement? Basically just an absence of strong opposition Crucial
Who/What enforces? It’s the default due to the difficulty of using something else External sanctions

Side Note?

A Devastating Blow to Originalism???

Sort of tangential, yet brilliantly important point:

On page 112, Hardin points out something that I think has huge implications for current debates on Constitutional interpretation (originalism vs. intentionalism vs. living Constitution etc). Father of the Constitution James Madison wrote in a letter to Thomas Ritchie that “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character”. I think this is huge! How many Supreme Court decisions cite parts of the Constitutional Convention?

Well, it seems about 690 338 ??? do.* And they are big cases. McCulloch , Alden v. Maine, INS v. Chadha, Flast v. Cohen, Nixon v. US (1993) , ChisholmKelo, Katzenbach v. Morgan, Baker v. Carr, Buckley v. Valeo,…the list goes on.

Who is likely to cite the framers of the Constitution and the records of the Constitutional Convention? Someone who feels that the original intent of the framers was important. But, then don’t they have to heed Madison’s declaration that the debates and incidental decisions of the Convention are not authoritative? What a paradox!

*A Google scholar search of “constitutional convention” with the Supreme Court selected as jurisdiction returns that. This link should get you there:

http://scholar.google.com/scholar?hl=en&q=%22constitutional+convention%22&btnG=Search&as_sdt=4%2C60&as_ylo=&as_vis=

{Edit 6/8/11}

So, Dr. Calvert pointed out some of those results were actually not referring to the Philadelphia Constitutional Convention. So, I struck through the ones that didn’t actually refer to the Constitutional Convention. But, there are still some big ones: Nixon, Baker, Buckley, INS etc. There are probably between 50 to 100, but it would be interesting to look. I’ve always wanted to do an analysis of how often the Federalist papers were cited…

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Posted on June 9, 2011, in Uncategorized and tagged , , , , , , . Bookmark the permalink. 6 Comments.

  1. If the paper is 101-120, why is p. 121 cited below “A Devastating Blow to Originalism???”?

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