Is our "real" constitution pro-liberty?

My main reason for reading Politics of Liberty in England and Revolutionary America, by Lee Ward, was to understand how the English Whigs could oppose the American colonists’ quest for independence. Ward explains why they did not have any problem reconciling their opposition to American independence with their philosophical views. 

Constitutional ideas that were held in high esteem by Thomas Jefferson and many other American politicians - particularly the views of John Locke - were on the radical fringes of political discourse in England. The English Whigs (and Tories) were more strongly influenced by the constitutional ideas of Samuel Pufendorf (1632-1694) a German jurist and political philosopher who argued that whatever form of government a people constituted must be guided by a supreme power that is subject to no limitations or external force. The British Parliament was seen by parliamentarians like William Blackstone, and even Edmund Burke, as having supreme power over the colonies.

Whilst reading about the differing constitutional ideas being put forward by influential writers in England and colonial America my mind often turned to the concept of a real constitution put forward by Sheldon Richman in America’s Counter-Revolution: TheConstitution Revisited (discussed previously on this blog). Richman defines the real constitution as the set of dispositions that influence what most people will accept as legitimate actions by the politicians and bureaucrats who make up the government. He derives support for this concept from Roderick Long’s observation that “government is not some sort of automatic robot standing outside the social order it serves; its existence depends on ongoing cooperation, both from the members of the government and from the populace it governs” (NPPE, Vol 2, No 1).

All the advocates of different constitutional ideas in England and America in the 17^th and 18^th centuries were seeking to influence their readers’ dispositions concerning what they would accept as legitimate actions by governments. Robert Filmer used his interpretation of scripture as a basis to argue that even tyrannical kings had a divine right to rule.  Thomas Hobbes argued that while individuals had a right to self-defence, life would be “solitary, poor, nasty, brutish and short” if they were unwilling to authorise a strong government to maintain order. John Locke’s view of the state of nature - life without government - was not much more benign: in his view the absence of government to act as an umpire to settle disputes would result in a state of war, or something dangerously close to it. Locke argued, however, that government power derives from the individuals who compose society; it is held by governors as a form of trust; and if governors break this trust - fail to preserve the property (lives, liberties and estates) of individuals - then power devolves back from whence it came.

Moderate Whigs successfully advocated a Pufendorfian interpretation of the Glorious Revolution which deposed James II in 1688. Rather than asserting that the people had a natural right to appoint and depose their governors, the House of Commons accused James of having “endeavoured to subvert the constitution of the kingdom, by breaking the Original Contract between king and people”. However, the House didn’t even present those actions as grounds for rightful deposition – it relied on the legal fiction that James had abdicated. All mention of an original contract was expunged from the final version of the Declaration of Rights presented to William and Mary.

As already noted, the constitutional ideas advocated by Thomas Jefferson owed a great deal to John Locke. Tom Paine went somewhat further by asserting that modern society rather than the classical polis provides the psychic plane on which moral virtue flourishes:

“Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices”.

Unfortunately, Paine’s argument for government to be viewed as “a necessary evil” was not matched by recognition of the potential for legislative tyranny. Paine believed that legislatures would protect individual liberty because they would reflect the “popular will”.

   

Our experience with representative government over the last couple of centuries should have made everyone sceptical of claims that democratic constitutions allow the people to rule. The only way the people can rule is if the real constitution is pro-liberty – and that can only happen if enough individuals accept responsibility for governing their own lives. In my view Karl Popper was right to defend democracy on the grounds that it provides a way to get rid of bad governments without bloodshed. Democracy does not necessarily help us to choose good government. 

Did the framers of the U.S. Constitution intend it to protect liberty?

A week ago my answer would have been along the lines that while I could not claim any expertise in American history I had the impression that the natural right to liberty had been recognised in both the US Declaration of Independence and the US Constitution. In support of that view I would have pointed to the division of powers between the executive, congress and judiciary; the specific guarantees of freedom including freedom of speech; and the allocation of specific powers to the central government with remaining powers residing with the states. I would have argued that limiting the powers to the central government was a particularly important guarantee of freedom because states which imposed burdensome taxation and regulation were likely to lose out in the competition for people and investment. However, I would also have indicated that I was aware that the federal government had ended up with more power than the founding fathers had intended as a consequence of imaginative judicial interpretations of the Constitution.

For the benefits of an Australian audience I might have added that the framers of the US Constitution were obviously more concerned about liberty that the framers of the Australian Constitution. The two constitutions are similar, but the Australian Constitution - written a little over a century later - does not include explicit guarantees of liberty. As with the US Constitution, the Australian Constitution specifies limited powers for the central government, but some leading politicians who were heavily involved in federation were aware from the outset of the potential for its taxing powers to give the central government great leverage. Soon after federation, Alfred Deakin remarked that the Constitution had left the States “legally free but financially bound to the chariot wheels of the Central Government”.

My view of the libertarian credentials of the framers of the US Constitution has been challenged over the past week by my reading of Sheldon Richman’s book, America’sCounter-Revolution: The Constitution Revisited. Richman suggests that the framers of the US Constitution staged a counter-revolution:

“the Constitution, far from limiting government, was actually designed to bring about a new one that betrayed the ideals of the Declaration of Independence itself. … There is a reason it has done a poor job in protecting freedom: it was never intended to do so”.

The Constitution was ratified in 1788, twelve years after the Declaration of Independence. It replaced the Articles of Confederation, which had been ratified in 1781. Under the Articles the government of the United States had been essentially confined to external affairs. It had no power to tax, regulate trade, or raise an army.

Greater central government powers were apparently not required to improve the lives of citizens. Under the Articles of Confederation, America was relatively peaceful and prosperous. In Richman’s words, life “wasn’t so bad after all – at least for white males with property  … ; obviously it wasn’t so good for African Americans, Indians, and white women, but their fate did not change in 1789”.

Richman cites evidence that a negative impression of the confederation period was fostered by those who favoured nationalist centralisation. Mercantile interests apparently tended to favour nationalist centralisation because they hoped it would help them to hold onto political power at the expense of radical democrats – including overtaxed small farmers - who were gaining greater representation in some state legislatures. Interstate protectionism was more legend than fact.

The author suggests that from the outset the US Constitution could reasonably be seen as a stool with three legs: taxation; mercantilist trade-promotion; and national security in a hostile world. The Constitution gave Congress taxation powers that would be sufficient (in my view) for any modern warfare/welfare state: “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”. Promoting trade was seen in those days (and still today in many quarters) to be more about opening export markets than enabling mutually beneficial transactions between people in different countries; trade-promotion was about selective embargoes and building empires. The nationalists sought a permanent military establishment that would be powerful enough to protect the nation’s interests from the old colonial powers and the Indian nations, whose lands Americans coveted.

The bill of rights in the US Constitution was introduced as an afterthought to mollify anti-federalists who had made the absence of a bill of rights the top talking point against the draft constitution. The rights embodied were largely uncontroversial common law rights of Englishmen.

Richman seems to me to make a strong case that James Madison, sometimes referred to as the father of the US Constitution, was father of the “implied-powers doctrine”. Madison argued that it was impossible to confine the federal government to the exercise of powers “expressly delegated” unless the constitution “descended to recount every minutiae”. Richman comments:

“Madison was right, of course. … There must be implied powers. But that’s the danger of a constitution and a monopoly constitutional government. Implied powers must be inferred, and inference requires interpretation. Who is likely to have the inside track in that process: those who seek to restrict government power or those who seek to expand it? We know the answer to that question”.

This book does more than make the case that a counter-revolution set America on the wrong path over 200 years ago. The author asks an important question that could help put America back on the right path: “Where is the Constitution?” Richman is referring to “the real constitution – the set of dispositions that influence what most Americans will accept as legitimate actions by the politicians and bureaucrats who make up the government”.  The point he is making, with the aid of Roderick Long’s (easily found) contribution on “market anarchism as constitutionalism”, is that if government power is to be wound back the real constitution must be pro-liberty:

“That’s why there’s no substitute for education and an intellectual-moral revolution”.

Another piece of wisdom that Sheldon Richman provides to libertarians is to avoid letting the perfect be the enemy of the good:

“I see no reason for libertarians, in the name of purity, to withhold support for steps that make real progress toward liberty and pave the way for more”.

That is an approach that a I can readily support without having to be persuaded that market anarchy offers the best prospects for human flourishing. 

How did the culture of growth evolve?

There can be little doubt that a change in attitude toward nature and the ability to harness it to human needs, that occurred among an educated elite in Europe in the period 1500 to 1700, paved the way for the industrial enlightenment in Britain, and the subsequent economic growth that has since benefited much of the world’s population. Joel Mokyr’s recent book, A Culture of Growth: The origins of the modern economy, explains that change of attitude in terms of cultural evolution.

Since cultural evolution involves individuals in making choices that change their beliefs, values and preferences it might be expected to be a gradual process. However, Mokyr uses cultural evolution to explain the large, discontinuous change in attitudes that occurred in Europe by pointing to: factors causing resistance to such change throughout the world; factors specific to Europe leading to a weakening of such resistance; and specific change agents espousing the cultural change that occurred. At the risk of over-simplifying the author’s scholarly efforts I will attempt to outline his thesis below.

Early modern Europe was a deeply religious age. The great Thomist synthesis, in which Christianity was merged with Aristotelian physics and metaphysics became a deeply entrenched dogma. The prevailing culture discouraged potential innovators from openly challenging this dogma. Science had previously flourished during some periods other parts of the world. It flourished in the first centuries of Islam, but was subsequently held back by mystical religious dogmas. It flourished in China during the Tang and Song dynasties (618-907 and 960-1127), but stagnated during the Ming and Quing dynasties (1368-1644 and 1644-1911) when institutions such as the imperial service examination system served to discourage intellectual innovation.

Political fragmentation is the specific factor which led to a weakening of resistance to intellectual innovation. In the context of the ongoing cultural unity of Europe, political fragmentation made it possible for intellectuals whose ideas were suppressed in one jurisdiction to continue their work elsewhere. The ubiquity of the printing press made a mockery of prohibitions on books by rulers of particular states. The rulers of different states sought to enhance their prestige by competing with one another to attract citizens with academic or other skills. 

The third element of the evolutionary story is the work of cultural entrepreneurs, particularly Francis Bacon (1561-1629) and Isaac Newton (1643-1727). Joel Mokyr emphasises that Bacon’s contribution should be assessed in terms of his rhetorical contribution to cultural change rather than his specific contributions to science. Bacon challenged the traditional orthodoxy by emphasizing the potential for the “sacred duty” to improve the material conditions of life to be aided by knowledge gained from experimentation. He argued that knowledge ought to bear fruit in production.

Isaac Newton promoted the view that the universe is mechanistic and understandable and that the role of science is to establish empirical regularities. He also argued that this knowledge should be used for the material benefit of mankind.

The educated elite in Europe – members of the so-called Republic of Letters – looked upon Bacon and Newton as the most influential thinkers of their age. The Republic of Letters set up norms and incentives that supported the market place of ideas. Participants were expected to reply to letters, disclose findings and data truthfully and acknowledge intellectual debts. The main payoff for successful scientific efforts was enhanced reputation. Evidence and logic were needed to back up assertions in order to win acceptance for new ideas. Scepticism provided the basis for advances in codified knowledge.

In Britain, the Puritans were particularly impressed by Francis Bacon’s writings. They were deeply attracted to experimental research. The systematic study of God’s creation was seen to be the closest a Calvinist could get to understanding an inscrutable deity. The study of nature was seen to have potential to instruct interpreters of the scriptures. The Puritans saw a great deal of virtue in “good works”, which they associated with labour that was useful and profitable in a worldly sense. What we call leisure, the Puritans viewed as idleness. They regarded education in physics, science, mathematics and languages as deeply virtuous.

The Puritans showed little concern for improving institutions in ways that would benefit economic growth, but in their stress on empirics and the practical use of knowledge they constitute “an essential link between the early followers of Francis Bacon and the Industrial Enlightenment of the 18^th century” (which Joel Mokyr wrote about in The Enlightened Economy). During the later Enlightenment period, science was, of course, able to “shed religion and advance on its own steam”.

In this brief review I have focused on the bare bones of Joel Mokyr’s model of cultural evolution. Readers interested in a broader perspective, should read Deidre McCloskey’s review. McCloskey’s important trilogy of books in this field also emphasise the importance of rhetorical contributions in promoting a culture of growth, but seem to imply that literature’s role in changing attitudes toward business made a greater contribution than Bacon’s cultural entrepreneurship in the field of science.  I mention this just to acknowledge that history can be complicated.

I find it difficult to read a book like A Culture of Growth without wondering what the implications it might have for the future. My reading of the history of the industrial enlightenment (sometimes still referred to as the industrial revolution) has previously made me think about the links between cultural change and economic policy reform. One might think that if a cultural evolutionary framework can help us to think about the past it should also be able to help us to think about the future. However, such models can only provide a framework. As Joel Mokyr emphasises models of cultural evolution are contingent rather than deterministic:

“In other words, they force us to recognize that things could have turned out differently than they did with fairly minor changes in initial conditions or accidents along the way” (p 232).

Hopefully, the “accidents” that  the world is currently experiencing will not destroy the culture of growth.

How can we measure human flourishing?

This graph suggests that, at a national level, three quite different indicators of human flourishing tell a similar story about human flourishing. The opportunity measure, shown on the horizontal axis, encompasses economic freedom, income, education, health and environmental performance. The thriving measure, shown on the vertical axis, shows the percentage of the populations who are positive about their present life situation and optimistic about the next five years. The measure of psychological flourishing, shown by the size of the bubbles, reflects the percentage of the populations whose responses to questionnaires indicate competence, emotional stability, engagement, meaning, optimism, positive emotion, positive relationships, resilience, self-esteem, and vitality. 

The focus on European countries was dictated by the data source on psychological flourishing:  an article by Felicia Huppert and Timothy, ‘Flourishing Across Europe’ (published in Soc.Indic.Res. in 2013). The thriving data is from Gallup World Polls using the Cantril scale which asks people to evaluate their lives relative to the best possible and worst possible life. The opportunity measure was created using methodology described in Chapter 6 of my book, Free to Flourish.

The graph raises such questions as whether Scandinavian countries will be able to sustain high rates of thriving and psychological flourishing in future without further expanding individual opportunities.

However, I want to focus in this post on how we came to measure human flourishing in three different ways and what the different measures tell us.

First, consider measures of opportunity. GDP per head of population has been used by economists as a rough measure of well-being for many decades, even though its potential shortcomings for this purpose have been well known since the concept was developed in the 1930s. Recognition of such problems led to efforts to take account of longevity and education, in the UNDP’s Human Development Index, and of a wider range of indicators of the quality of life in the OECD’s Better Life Index and similar indexes - including the opportunity index used in the graph. All those indexes can be viewed as measures of opportunity; they are not direct measures of well-being or human flourishing. It is possible to be wealthy, highly educated and have good physical health and yet to be deeply unhappy.

Second, there are attempts to measure well-being directly using surveys asking individuals to give a simple numerical rating to their happiness or their satisfaction with their lives.  The data on thriving shown in the graph are based on subjective well-being assessments of that kind.

The meaning that should be given to life satisfaction ratings is less obvious than the meaning of happiness ratings. The happiness question clearly elicits responses about feelings. Available evidence suggests that life satisfaction ratings reflect evaluations of lives rather than momentary feelings. Research by John Helliwell et al for The World Happiness Report shows that a large part of variation in life satisfaction ratings among countries can be explained by differences in income levels, social support, freedom to make life choices, generosity and perceptions of corruption.

Analysis of data from long-running national panel surveys for Australia, Germany and Britain provides evidence that adaptation and resilience tend to restore life satisfaction to previous levels following positive and negative changes in circumstances. Nevertheless, recent research by Bruce Headey and Ruud Muffels suggests that most people go through periods of their lives when they have relatively high and relatively low life satisfaction. Positive feedback loops between life satisfaction and variables such as health, social support, frequency of social activities, and satisfaction with work and relationships partly account for extended periods of high or low life satisfaction.

As I have discussed in a previous post, evaluations of life satisfaction can also be interpreted as frames of mind, which influence the extent to which people experience positive emotions. Monty Python (and many philosophers and psychologists) tell us that people who have a disposition to look on the bright side of life are better able to maintain relatively high life satisfaction. The evidence that life satisfaction is influenced by dispositions that are attributable to genetics also supports a frame of mind interpretation. People in Denmark are apparently particularly favoured by genes that promote high life satisfaction.

The main reservation I have about the tendency to use of life satisfaction as the gold standard in measuring human flourishing stems from evidence (for example, findings of research by Daniel Benjamin, OriHeffetz, Miles Kimball and Nichole Szembrot)  that when faced with relevant choices people rank life satisfaction less highly than other criteria such as the overall well-being of their family, being a moral person, having a meaningful life, and having many options and possibilities in life and freedom to choose among them. Some of the findings of this research are not easy to understand, but those noted above are, at least, consistent with the choices people could be expected to make when they exercise their practical wisdom.

That leads me to the third approach to measurement of human flourishing: the eudaimonic approach, which draws some inspiration from ancient Greek philosophers.  In their research, referred to above, Felicia Huppert and Timothy So viewed flourishing as lying at the opposite end of a spectrum to depression and anxiety. The authors identified 10 features of positive well-being: competence, emotional stability, engagement, meaning, optimism, positive emotion, positive relationships, resilience, self-esteem, and vitality.  As noted in my previous discussionof this study, an important finding was that was that the individuals identified as flourishing did not correspond very closely to those identified as having high life satisfaction. For Europe as a whole, the percentage who were both flourishing and had high life satisfaction was 7.3%. Among people who met the criterion for flourishing, 46.0% had high life satisfaction, and among people who had high life satisfaction, 38.7% were flourishing. (The correlation between life satisfaction and flourishing was only 0.34.)

As the philosopher Daniel Haybron has observed recently, there is no consensus among eudaimonic psychologists about what their measures of well-being should look like. Dan Haybron has provided what seems to me to be a good account of the “philosophical basis of eudaimonic psychology” in a chapter of that name in J Vitterso (ed.) Handbook of Eudaimonic Well-being.  I don’t agree with him on the question of whether it is possible for the wicked to flourish, but I don’t think that impinges greatly on the measurement issues. Haybron argues cogently that the main factors that should be targeted in eudaimonic measures of psychological well-being are:

• Agency - personal development, competence and autonomy
• Relationships - close personal relationships, social enjoyments, community trust etc.
• Meaning - engaging in activities that are meaningful or worthwhile
• Emotional well-being - endorsement (or positive emotion) engagement and attunement (tranquillity or peace of mind).

He also acknowledges the importance of some other factors that researchers may wish to measure: authenticity, knowledge and virtue.

In my view Haybron’s contribution should provide a useful basis for further consideration of these matters by psychological researchers, but any consensus they reach will inevitably be somewhat arbitrary and tenuously related to the perceptions of individual survey respondents about the factors that are important to their own flourishing.

I end by raising a couple of questions:

First, how should researchers determine what weights should be given in combining ratings of factors targeted in their surveys? My answer, very briefly, is that this should be left to the practical wisdom of survey respondents. I considered the question here.

Second, would it be enlightening to attempt to combine measures of economic opportunity with measures of psychological flourishing? My initial thought is that before considering that question we should have a clear view of the purpose(s) for which such a combined measure might be more useful than separate indicators of economic opportunity and psychological flourishing. I can’t think of any right now.

Postscript: 

Dan  Haybron has provided the following comments:

Very nice post! It might be useful to see your opportunities index related to the capabilities framework, which in my view is really just a kind of opportunity approach--and possibly better framed as a matter of opportunities (though maybe the connotations of the latter aren't always helpful). 

I suspect policy should consider well-being/outcome and opportunity metrics, and also don't see any clear rationale for combining them, except perhaps in some still broader index including lots of other stuff as well. In my work on capabilities, I suggest that the latter better captures something like parents' concern that their kids have good opportunities (so push them in school), which is distinct from a wish that they be happy/do well, which can sometimes be in tension with giving them the best opportunities. (If your kid goes to Harvard, great opportunities, probably not so happy.) Though in line with your graph, I assume they generally tend to be positively correlated.

On life satisfaction (LS)  measures: you point to one of the odd features of the Benjamin et al work, which generally seems to undervalue emotional goods as well. I suspect the setup skews answers misleadingly on things like that (though I think their work is really cool). But also, partisans of LS should not be bothered by that result: the smart position is to allow that LS itself isn't very important (hence the responses), but is very useful as an indicator of success in the things people do care about. So if LS is a valid measure, it should reflect all those other things, in proportion to how much people care about them. i suspect the Benjamin et al framework might be used to help test LS measures: are they sensitive enough to what people actually care about? Or do they lean too heavily on information that is chronically salient, like day-to-day material concerns?