Comments on the Constitution:

A Letter to Kevin Worthen JRCB - BYU Provo, Utah 84602

RE: Constitutional Changes, Otherwise

Dear Kevin:

I enjoyed your comments on the subject of the constitution as much as the book review and appreciated your thoughts enough to add my own.

What is missing from what I read in the review, and most constitutional reform proposals and considerations is a functional analysis of both the changes in American Society and of the processes we currently have.

Changes in Society

1. America has gone from a state of perceived under population to a state of perceived overpopulation.

2. America has changed in the ability of the government to intervene, and to know, and the amount to know. While it is now possible to know which product sells best, which soap cleans best, which vacuum vacuums best (which says worlds about the difference between fraud and "mere puffery" [at least in Texas with the DTPA]), it isn't always possible to know which policy works best in the same way. In a way, while knowledge has increased, our ability to change far outreaches our knowledge of what the change will do.

3. Increased importance of government goods. The various "freemen" and similar groups (we have several in Texas) all seem to operate in the blissful ignorance of what a government does for its money, as if all government goods were here when the pioneers came, along with the Indians, the railroads and the land grant schools (that is an allusion to a famous discussion where the Russian Economist said "yes, but you had the railroads and the land grant colleges to start with and we had nothing"). Bank regulators, insurance guarantee funds, money supply regulation, every thing that a government does to create and keep fair and open markets, is reflected by the fact that you can leave the United States for any other place and the real difference is the quality of the governmental goods provided.

4. A movement in government from a "General Principles" orientation (with a focus on narrow, action oriented legislation -- e.g. Lincoln's famous "buy two cannons") to a specific application and codification (e.g. UCC) approach (and broad "principle" oriented legislation).

5. A change in the level of impact of externalities. We have gone from an environment that could absorb all matters of externalities and provide massive room for escape (don't like it here, move to Kentucky, to Missouri, to Texas, to California) to a place without escape valves (where could the freemen have run off to to be "outside" of government?) and where externalities are almost overwhelming (my car's exhaust is our smog). Pollution is only the least of the issues.

Functional Issues

1. Scale. A direct democracy works well with between 100 and 200 adults. A representative republic worked very well for City States that were generally smaller than the BYU student body. Countries are now entities with a scale not of 100, not of 20,000, not of even the famous forty million Frenchmen (who could not be wrong), but in the hundreds of millions of people. While scale is not a functional question, it is an issue when looking at how things actually function. The function (or way things actually work) of a direct democracy in a group of five is far different than for a group of five thousand.

Many students of proposed constitutional change never address the issue of scale in their examples and how many things do not scale with the exactness presumed. Does England's parliament scale cleanly to a country the size of the United States? Does its function scale? We may communicate in metaphor (e.g. the country as a family), but that does not mean that the metaphor scales accurately.

2. Rate of Change. The rate of change in a society controls both the good and the bad effects. If stock could only be moved in blocks of 100 shares and sold once a week by any one person, it would affect the rates of change in the market. If the market (or parts of it) could never be closed or trading halted, that would make changes. We have a fast, early adaptor oriented, society which nurtures a fast rate of change.

Many things we consider problems result from the rate of change we tolerate and/or seek. The commodities futures market would be a far different place if the rate of change were altered. (Consider the impact of bringing back short term capital gains taxes at 50% and long term capital gains at 10%, with the period of holding being twenty-four months. Dividends are taxed at 50%. Stock appreciation and stock splits, held for twenty-four months, are taxed at 10%. The market slows down, as the outlook focuses further into the future with more emphasis on investment).

Many proposals, from term limits to others, are aimed at increasing the rate of change in some areas. Other proposals (e.g. the legislature to meet only every other year) are aimed at reducing the rate of change.

3. How are (and how can) representatives of the people (be) held accountable? The fact is, most representatives are held accountable by the people. Consider the votes on Medicare and Medicaid, etc. That the people are often short sighted and self-interested is not necessarily a failing of accountability, but is rather a function of the type of accountability we impose.

The media is as venal as always, politicians are as self-serving. The public is merely choosing, in the type of society we have (including the level of invasiveness and the rate of change), to evaluate politicians on criteria that many commentators do not share.

4. That large systems are organic, not mechanical. An organic system is like your body or a forest. A mechanical system is like a lever or a car. Direct input has clear direct output in a mechanical system. Not necessarily so in an organic one.

This is just another area of focus to consider when trying to evaluate the functionality of changes, rather than the system. Too much system consideration ignores this well learned truth.

Thoughts

I admit to thinking on the fly in the letter, but wanted to respond to your review.

I find myself thinking that too many people who want changes are trying to force results rather than changes in the function of institutions in society. Not that some results cannot be achieved by amendment to the Constitution (e.g. giving women or eighteen year olds the vote). But too often, the functional difference between the alternatives does not seem to include mandating the result sought or is merely a side show.

The real issues in society seem to be: First, the choices people are making and the beliefs that the electorate is choosing to believe. Second, that those with authority and power seek to enrich themselves at the public's expense (or why we have huge housing developments for the poor rather than scattered units. No one gets rich building scattered units -- even though scattered units work and large welfare housing developments breed extreme problems). Third, that people end up in power that disagree with the solutions the commentator is certain would go through if only the irrational opposition were swept away and the gridlock they cause evaporated.

Will a balanced budget amendment force the choices some want at the speed they want? (It actually has a chance of doing so as long as your goals are narrow). Will term limits throw out the old guard and allow a rapid rate of change towards a better direction (other than confusion)? (Well, they will, perhaps, speed up the rate of change). Etc.

I think that the entire area needs a revisit with an understanding of basic principles followed by functional analysis.

Sincerely yours,

Stephen R. Marsh

Basic principles to understand prior to the functional analysis of a governmental system (and useful for a beginning of general understanding of large systems).

1) The theory of the second best. (for example, most would agree that no militaries is the best world. But if we have three militaries, is just one military better?). That is, that if we cannot have the best solution, the second best solution (the one we can have in an imperfect world) is not necessarily found by making incremental changes towards the best.

2) Non-scaling. Microeconomics (and similar principles) do not scale directly. Consider the square-cubed law. To build a building ten times taller, you don't just make everything ten times bigger .... There are often diseconomies of scale as well as economies of scale.

3) What is fed, grows. (Any matter that is fed, funded or encouraged, will grow. For example, regardless of how you feel about poverty, throw money at it and the industry of poverty will grow. In conversations, if someone is angry and you respond with anger, you feed the loop of anger and the amount of anger grows). (Intel rewards finding problems, but not solving them. Thus the P5 chip problems were discovered and noted, but no one fixed them prior to market... They feed problem finding and starve problem starving, so they know about lots of problems that they have trouble getting fixed).

4. Large systems are organic, not mechanical.

5. Externalities exist. My cabin on the hill has its view improved if you can't build one. Your air is cleaner if I don't build a fire. When there were only five thousand people in all of Utah, sewage disposal was a different question that it was with five million people and different than it would be with fifty million people.

Being "free" doesn't mean being free to pass externalities on to others (e.g. the Tobacco litigation with the State Governments. All sales people want is to be free to sell their product and not worry about the societal costs. However, in application that translates down into wanting the freedom to tax the public to subsidize the product, whether it be tobacco, cars without pollution control, or factories that do not comply with the EPA).

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