Perils of Poor Constitutional Design
This is part of my constitutional design series
What is the goal of constitutional design?
I’m mostly a utilitarian, so I think the goal is mostly to maximize societal welfare.
That’s kind of a cop out answer though. Can we say anything unique about constitutional design goals that can give us pointers on what to do?
There’s two more specific goals I will point to.
Democracy!
Throughout this guide, I’m going to aspire to the ideal of democracy: political equality. In doing so, I’m going to try not to vary too much from the systems of democracy that have been explored in the past.
Why? Well, democracy is the worst form of government except all those other forms that have been tried. Actually, this undersells the empirical support for democracy: western democracy has mostly worked out amazingly and all other forms have mostly worked out terribly. There are few examples of unquestionably successful countries that aren’t democracies. Singapore is the only current example, while historically you can point to a couple of East Asian countries that developed under dictatorship.
That said, the empirical evidence usually isn’t good enough to piece different aspects of democracy apart - free speech, free press, transitions of power, equal vote for everyone, etc. I will discuss the theoretical arguments for each of these in this series as they come up. Even when the theoretical arguments aren’t super strong, however, I will try to stick by them. When you have a system that has worked so well, you should be careful removing aspects of it even if you don’t understand why these aspects are important. So I will stick to tried democracy unless I have good rationale otherwise.
Failures
The more specific goal I will point to is to avoid specific well-known failures in democracy. These failures aren’t the only problems democracy can face, and it’s important not to over-optimize against them and cause other problems. But I think these cases are pretty unambiguously bad and worth keeping in mind at every step.
Decline Into Dictatorship
This is when one person starts to gain a lot of power and is really difficult to remove. Why is this bad?
One reason is that dictators tend to be overly concerned with keeping power. They’re constantly concerned about opposition among elites that might take them down, so they spend a lot of effort cleansing the elite class of dissent rather than governing and nominating competent policymakers.
Another is the power vacuum created when a dictator dies. Dictatorial regimes by nature are individual-focused, so when you no longer have a dictator, you no longer have a figure keeping everyone together. Sometimes people will unite around the dictator’s designated successor - often their child - but sometimes there is violent conflict within the family or beyond it. You all know the examples.
Besides these, you have all the usual upsides of democracy.
Corruption
This is when the people in power care more about making themselves rich than helping the public. It generally comes in one of two forms: stealing public money, and setting policy to benefit those who give a politician money.
The downsides here are pretty clear. Every dollar going to a corrupt official is one not going to the public, who would benefit more from it (or in more deontological terms, “deserve it more”). If policy is set to benefit those who give a politician money, it will not be set to best benefit the public. Notably, “the politician gets super rich” is not a significant downside - if a politician receives money, but we think (for whatever reason) it (a) would not have otherwise gone toward the public good and (b) does not influence the policy that the politician sets, the harm is minimal or nonexistent.
Oppressing the Minority
This is the vaguest and most controversial of these three failures. Who am I to say what is oppressive policy and what is legitimate government function?
The most convincing versions of this, in my mind, come from resource distribution. The idea is that in a democracy where you just need 51% to govern, the optimal strategy is for 51% of the population to band together and use the government to shift the distribution of resources toward themselves and away from the the other 49%. This doesn’t have to be economic resources, it can be any zero or negative-sum thing like the right to harass the other group. And of course in practice it’s not 51/49.
Where this occurs harmfully depends on your political and ethical beliefs. The left-wing version of this argument says that the dominant majority group will make laws that benefit themselves. The utilitarian harm here is that the majority benefit less from hogging these resources than the minority suffer from lacking them. The more deontological/virtue ethical harm has to do with valuing equality in and of itself.
The right-wing version of this argument says that the subordinate majority group will make laws that benefit themselves. The utilitarian harm is that this dampens the incentive structures that cause people to work hard and create economic growth. The more deontological/virtue ethical harm is that the dominant group deserves the resources due to merit or private property or whatever.1
So these are going to be the general goals for my constitutional design series. This will help guide us as we get into more complicated issues.
Doesn’t it seem convenient that in both cases the non-utilitarian harm corresponds nicely to an IMO less arbitrary utilitarian harm? Maybe there’s a lesson here for ethics…