Akhil Amar at Cato Unbound

by Will Wilkinson on December 7, 2005

Today at Cato Unbound, Yale constitutional law wizard Akhil Reed Amar fires back at Buchan’s amendment proposals. He doesn’t like them. At all.

My favorite line:

I take it that aid to impoverished orphans also might run afoul of nondiscrimination as Buchanan understands the term. If so—if this is even a close question or a plausible reading of the Buchanan idea—then I think this proposal needs to go back to the drawing board for careful rethinking and redrafting.

If Buchanan’s generality requirement rules out government-disbursed aid to poor orphans, is it thereby reduced to absurdity? Is that a deal killer? Does Buchanan need to stay at the drawing board until he is no longer libertarian? Anyway, Buchanan does allow for old-age insurance under the generality requirement. So it may be that “social insurance” programs designed to secure people against the event of falling into poverty, including programs for poor orphans, may generally pass muster in terms of non-discrimination.

  • Tim
    Matt McIntosh: hmm, interesting...
  • Well how about that, Tim Sandefur made the same point I just did.
  • Without having read the criticism yet, I've always been a little skeptical of Hayek's "generality" criterion, which Buchanan invokes. It obviously seems desirable that the government should be as non-discretionary as reasonably possible, but there doesn't seem to be any bright line you can draw. Consider a taxation rule that provided all those below a certain income level with a Friedmanian negative income tax, which Hayek would have probably supported. How is this qualitatively different from a progressive taxation rule which increases marginal tax rates as one's income increases, which Hayek opposed? And how would something like "all people whose weight reaches 400 lbs shall be sent to fat camp" be any different, formally speaking? It seems to me that one could twiddle the definition of the set endlessly this way. I think Hayek even admits this somewhere in The Constitution of Liberty, but doesn't really take the objection seriously.
  • The first amendment that Amar spends the most time on is only partially correct. A 3/4s majority is very hard, but maybe a 2/3s majority or a simple majority will do well instead.

    As for the investment spending argument, this is already resolved by the amendment. Congress just has to remember to account for investments in its future budgets.

    Amar seems to be right about the other two amendments.
  • Amar makes lawyerly criticisms and non-libertarian criticisms. I don't expect you to buy the non-libertarian criticisms, but he is obviously right that Buchanan hasn't really thought out his constitutional drafting. Maybe that misses the point.

    Buchanan's second and third amendments could just be the libertarian interpretations of the equal protection and liberty clauses. But how does Buchanan stop the judges from interpreting them in a non-libertarian way? He can't.
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