Troubleshooting the Constitution

Troubleshooting the Constitution

Even after doing three separate shows on rewriting the U.S. Constitution from three different perspectives (Libertarian, Progressive and Conservative), I’m still hungry for more insights on how to think about designing the ideal constitution.

I found aspects of each team’s revisions attractive, but if I could push a button to make one the law of the land, would I? Even if I thought that the original could be improved, what unintended consequences might there be from dismantling the document that has worked at least reasonably well for almost 250 years?

Professor Michael Munger returned to the show to elaborate on a topic he recently discussed with Russ Roberts on the always-interested EconTalk podcast. They delved into the work of public choice economics like James Buchanan and Gordon Tullock, who concerned themselves with the nature of constitutions – rules about rules – and how groups can balance their collective interests against individual liberties.

We discussed the challenge of improving a constitutional order, when the document in question is the result of an evolutionary process. The American Constitution, for all of its faults, is the oldest document of its kind in the entire world. Does that mean we’re stuck with what we’ve got, whether we like it or not? Or could we possibly do better?


James Madison’s Federalist 51 as a proto-public-choice theory:

NPR reports on the superiority of the private sector in delivering tests:

Mike Munger: There's an interesting story on National Public Radio – this is not Fox News – which I cite in the piece, comparing the U.S. government, the South Korean government, and the German government. The big difference was that South Korea and Germany enlisted the aid of the private sector. The United States said, “No, we're the CDC. We know more than all the rest of you.”

And there was a two-month delay as a consequence. Well, if you fast forward to the summer of 2021, the United States private sector was manufacturing effective rapid tests that were being distributed to the rest of the world. You could buy a U.S.-manufactured rapid COVID test in South America, and in Africa, in Europe, but you could not buy one in the United States, because the Food and Drug Administration said, “Wait, these tests are not as accurate as the PCR genetic tests.”

Well, of course not. The PCR genetic test is an entirely different thing. But the question there is, do you have antibodies in your system or not? Are you contagious? What people want to know is, am I contagious? Should I go visit grandma or not? And the rapid test does a good job of that.

But the Food and Drug Administration doesn't get any benefit from approving these tests. If it turns out that they don't work very well, they get in trouble. So I think the Food and Drug Administration just has a bureaucratic bias against speed.