Troubleshooting the Constitution
2022-01-10 · Guest: — · 52:28
This episode features host Bob Zadek interviewing Professor Michael Munger of Duke University about the systemic failures in the U.S. government’s response to the COVID-19 pandemic. They explore how bureaucratic inertia, a distrust of the private sector, and the exclusion of economic trade-off analysis led to significant policy errors, particularly regarding rapid testing. The conversation transitions into a broader discussion of Public Choice Theory, the “Munger Test” for state power, and how the U.S. Constitution was designed—and sometimes fails—to limit the ambitions of government officials.
Topics: COVID-19 testing, FDA regulation, Public Choice Theory, U.S. Constitution, James Madison, rent-seeking, economic trade-offs, bureaucratic bias, Bill of Rights
Speakers:
- Bob Zadek: Host
- Mike Munger: Professor of Political Science, Economics, and Public Policy at Duke University
The Failure of COVID Testing [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live Libertarian talk radio show in all of radio. The show of ideas, never once the show of attitude. Thank you so much for listening this Sunday morning.
Well, what do we have in the news? Well, no surprise here, we have more goings-on about COVID. We have more mishandling of the COVID crisis, we have more misinformation provided to the public, and we have the continuing series of missteps by the federal government. Missteps by the federal government, of course, are of great significance because when so much power is vested in the federal government—and that means in relatively few people—when they make a mistake, the mistakes are whoppers and affect everybody in the country, as opposed to mistakes which invariably are made at the state and local level and affect profoundly fewer people.
So, I thought it was a good idea to revisit some of the issues of COVID, but not as we have done in previous shows from a medical standpoint. It is always interesting to examine the COVID crisis through the lens of a political scientist or, more importantly even, through the lens of a trained economist. Because after all, the COVID crisis is really two crises combined in one: there are profound health implications and there are profound economic implications. And much too much attention has been spent on the health analysis and the medical-related mistakes, and probably not enough to the economic effects, even though economic effects are as profound on the population as are the health effects.
To explore this issue and the whole process of governmental decision-making, I felt it was quite helpful to invite back to the show Professor Michael Munger. Mike is the professor of political science, economics, and public policy at Duke. He has chaired that department. Michael has worked as a staff economist for the Federal Trade Commission in the Reagan administration—yes, he is that old, he goes back to the Reagan administration. He also, as an interesting fact about Mike’s life, he was the Libertarian candidate for governor in the state of North Carolina in the 2008 presidential election. And he is, of course, a successful published author. His most recent book is Tomorrow 3.0: Transaction Costs and the Sharing Economy, and Michael was on our show to discuss the sharing economy at that time. Michael is also a senior fellow of the Independent Institute—they are a wonderful think tank located in Oakland, California—and is a writer for the American Institute of Economic Research (AIER), a blog which I read every single day before I start my day. And lastly, Michael was the former president and chair of the Public Choice Society. We will spend a fair amount of time on our show this morning discussing the theory of public choice; it is relevant to this morning’s conversation. Michael, welcome to the show this morning.
Mike Munger: Thanks for having me back. It’s a pleasure.
Bob Zadek: Michael, you recently wrote in AIER a piece which caught my attention—I read it more than once. The heading of the piece was “The Most Important Failure of the US COVID Response.” And in it, you bemoaned the fact that the federal government, and to some degree state and local governments—but we’ll focus on the federal government—underutilized, misutilized, did not take advantage of all of the resources available in the private sector, specifically testing. We’re going to spend a fair amount of time in the early part of the show on testing because it’s so much in the news. But tell us the thesis of that piece and where you think the government totally missed the ball by not taking advantage of the private sector and preserving all of the significant action to the public sector, which they kind of botched.
Mike Munger: The simplest way to put it, I think, is that the United States had an effective vaccine before we had an effective legal test to use to detect the virus. And how did that happen? So, the vaccine was developed actually in January of 2020. Now, it makes sense that it would take a while before the vaccine is publicly available—you have to do some testing. But testing a test shouldn’t take very long.
Well, it turns out that I’m not just some Libertarian complaining about government. It was the U.S. government specifically, as I said in my piece, that screwed this up. So, Germany developed an effective test by the end of January of 2020. South Korea and the United States both detected their first case—they diagnosed their first case in a hospital—on January 20th of 2020. By February 15th, South Korea had enlisted the aid of the private sector and the drugstores to be able to distribute tests in ways that people could actually get them. The United States dragged its feet. The CDC actually made a mistake. There’s an interesting story on National Public Radio—this is not Fox News, there is a really scathing exposé on National Public Radio, which I cite in the piece—comparing the U.S. government, the South Korean government, and the German government. And the big difference was—and this was in the NPR piece, I sound incredulous, but National Public Radio said the difference was—South Korea and Germany enlisted the aid of the private sector. The United States said, “No, no, we’re the CDC, we know more than all the rest of you,” and there was a two-month delay as a consequence.
The Bureaucratic Bias Against Speed [08:51]
Mike Munger: 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, in Africa, in Europe, but you could not buy one in the United States because the Food and Drug Administration said, “Well, wait, these tests are not as accurate as the PCR genetic test.” Well, of course not. The PCR genetic test is entirely a different thing. The question there is: do you have antibodies in your system? 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.
Now, I think there’s two explanations. The one that you gave is certainly possible in the background. 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. And people always bring up, “Well, what about thalidomide?” Yes, that was in the ’50s. That was one example. What about AIDS? What about all the drugs that were held up? What about in the 1980s, the left was very angry at the Food and Drug Administration for not allowing experimental drugs about AIDS? People that were going to die anyway, why not give them a chance? Well, the Food and Drug Administration just has a bureaucratic bias against speed.
But I think the explanation that you gave is not wrong. There’s two metaphors, two ways to think about how the government should react to a crisis like this. One is a factory, where all of the processes are controlled by the boss, and we move the machines around, we change the speed, and all of it is top-down. The other is a garden. In a garden, the gardener has some role in deciding where the plants are, we make sure they get enough fertilizer, but the plants grow on their own, and the local conditions—the soil conditions—all of those will find that some plants, some things, are going to be better suited than others. Well, an economy is more like a garden than a factory. Allowing people to make their own decisions based on local knowledge, their own risk preferences, and their own needs is much more effective. The U.S. government tried to run this like a factory. South Korea, to their credit, tried to run it like a garden. And in a very short period of time, South Korea had almost no cases, and the United States is still facing gigantic increases in the number of cases. We need to let people make their own decisions, Bob.
Bob Zadek: So, Michael, what occurred to me is this story you have told has two subtexts that I don’t want our audience to lose track of. The first subtext is that inherent in all of this is we start with a built-in part of the ethos: distrust of the private sector. The private sector must be watched, and must be watched very closely, because without that intense control, they will take advantage of the public. They have poor and incorrect motivations.
And the second, perhaps even more important—and interestingly enough, was the topic of a show I did seven days ago—which is the government seems to find the need to control information and preserve information as a tool to themselves and not to share the information with the public. Testing would have had a profound effect as follows: with testing, individuals would have had a lot of information about their own health so that they could make a decision whether they needed treatment, whether they ought to self-quarantine, stay at home, whether they should visit relatives. The decision would be removed from the government and placed with the citizens. Governments are not generous with sharing information because, to paraphrase George Orwell, information is power. So I can’t help but feel the government’s lack of enthusiasm for testing was really a lack of enthusiasm for sharing information. As we will discuss with Michael a little bit later on in the show, Friedrich Hayek—a name you will hear a lot during this hour—understood that so much information was individual and local and held by the public. And there is this collective wisdom evidenced by a marketplace which will help society make the right decisions. And government was stifling out that local knowledge. More about that later.
So, Michael, am I just a conspiracy theorist in fearing that government in part was simply unenthusiastic about denying us information which we could use to make individual decisions rather than be locked into the decisions made far away by strangers?
Mike Munger: I’m a little bit skeptical of any monocausal explanation. I don’t think that the explanation that you gave is wrong, but it’s not that I think the primary goal of people who work for government is control. I think government experts honestly think they are smarter than the rest of us and that they should make choices for the rest of us. We’re just a bunch of poor saps who will get it wrong. And I think that the system of expertise, where you’re sort of separated from the public, makes that problem worse and worse. It happens in law enforcement where you think everybody’s a criminal; if you’re a doctor, you think everybody is sick or everybody’s overweight. And if you were just in charge, you could make the world a better place.
So I don’t think there’s anything invidious about the fact that experts want to control. It’s just that a constitution has to prevent that. A government has to be limited precisely because experts and people who want to do good for other people, they want the power to do that. Imagine being in government and just being absolutely sure you know the right thing to do, but being told, “No, no, the rules won’t let you do that.” Well, let’s change the damn rules then, because clearly I could do good. I could make the world a better place if I just had more power. And then, yes, information is power, information is control. I don’t want this information to get out because people will use it wrong. They’re not as smart and as educated as I am. I am an expert. I look in the mirror and I think, “Boy, you’re smart. Don’t you ever die.”
Following “The Science” vs. Economic Trade-offs [15:42]
Bob Zadek: Michael, we have heard for years that government, when they want to defend their decision—mostly the federal government, of course—we all have heard the phrase ad nauseam: “follow the science.” A phrase that nobody could really quarrel with; it is a platitude, it is an absolute. Why, of course, one should follow the science, or putting it slightly different, follow the knowledge. No one could quarrel with that.
But what science? Now, for the most part, the decision-makers in Washington, in the act of following the science, the science they were following was the science of medicine. Yes, of course, medicine had a significant, maybe the most important, but for sure not the only area of science that affected it. Needless to say, we suffered the dual crises of a health crisis and an economic crisis. Now, never once do I recall seeing as a stern-faced public official was on national television or whatever, and to his or her left or right was a scientist—i.e., somebody from the medical sciences. Never once was there standing to the left or to the right of that public official was an economist, a practitioner of what has been called, with all apologies, the dismal science. But a science nevertheless.
Now, Michael, if there was a hypothetical economist/scientist standing as close to the President as a healthcare scientist, and if they were given equal time in advising the boss, the politician, on the best policy, how would decisions, in your opinion as an economist, how would some core decisions have been made differently? Not that economic decisions dominate health decisions, but they have as much weight as health decisions. So what stands out to you as where the government clearly didn’t listen to, or didn’t hear, or wasn’t offered economic advice, and had they been offered or listened to economic advice, the decisions they made would have been better overall for the people, considering health effects as well as economic effects?
Mike Munger: I think there’s two things that should be said. First, I’m not sure economists are as immune to scientism as—I’m not sure that economists are any more immune to scientism. If I look at Jerome Powell, the chair of the Federal Reserve Board, he seems to want to follow the science: we’re going to have inflation, we’re going to change the rate of growth of the money supply. So economists are also pretty susceptible to overestimating their capacity to run the economy.
But let’s suppose that we had an economist who in addition was characterized by humility. So when someone says, “I’m going to follow the science,” well, economists for the most part say that every decision is about trade-offs. And what we’re concerned about is not just the cost, but the opportunity cost—that is, what do you give up by doing something? So David Hume, the famous skeptic, was really worried about science making assertions as if it were a religion. And what we seem to have done is taken that to a very high level. Instead of saying, “God tells me that we have to do this, and I am the prophet of God,” we say, “Science tells me that we should do this, and I am the prophet of science. I have studied, I have become a cleric, I have a PhD, I have experience in working in experiments.”
But David Hume also said that any sensible person proportions their belief based on the evidence. What science should mean is that we proportion our belief based on the evidence. And if the evidence is mixed, then the science says, “You know, it’s actually really hard to know what’s going to happen,” not “I invoke science and then say and you have to listen to me because I have a PhD and therefore I’m a member of the Church of Science.” So an economist would say: recognize that anything that you do to restrict people’s ability to make their own choices—either with access to tests, or to be able to go to work, or to send their kids to school—you’re saying that that’s a small reduction in the chance that they will become infected by this disease. But we’re going to forgo all of the things that they would have produced at work. We’re going to forgo all of what the children would have learned in school.
Now, it’s hard to measure things that don’t happen. And that’s what I want to emphasize, Bob, as important about your question. These scientists are saying, “Well, we’re measuring cases, we have numbers.” And an economist would say, “Wait, you need to look at the things that didn’t happen. That’s the cost of your so-called science.” But how do we measure the things that didn’t happen? How do we measure the meals, the cars, the wealth that would have been produced that people would have enjoyed? How do we measure the learning, the psychological well-being that people are giving up because they’re trapped at home? In California, that guy got arrested for surfing by himself. They sent the Coast Guard after him because he was surfing by himself after there was a lockdown order. Now, science actually says if you’re outside, you don’t even need a mask, there’s no danger. So this wasn’t science. This was authoritarian control: “We have set a rule, you have to do it.” Science doesn’t actually say anything. What we’re trying to base our decisions on is evidence. And what we’re lacking is evidence about what we’re giving up by following the science.
Bob Zadek: In other words, you’re channeling Frédéric Bastiat, who reminded us almost 200 years ago that one must pay attention to his phrase “the unseen.” There are unseen and invisible but real and important consequences of any decision. And one makes decisions in utter ignorance if you don’t focus on the unseen consequences. Now, the advantage of ignoring the unseen is it’s less likely to come back to haunt you as a decision-maker. It is very hard for your decisions to be attacked if the person attacking you has to refer to things that didn’t happen, as Mike said. But the fact that they didn’t happen doesn’t mean there weren’t consequences. So what’s interesting about these conversations is we are invited to read and remember and learn from prior generations of economic studies that have already anticipated and provided explanations for what is going on today. So aren’t I correct in at least bringing into the conversation Frédéric Bastiat and his warning about “remember the unseen”?
Mike Munger: You’re absolutely right. And I’m worried that we constantly have to remind people of this. What I think is difficult, if you look at the results of the Chicago Teachers Union vote to only have remote learning, and their rationale—they had some rationales based on the science, they had claims about there’ll be fewer cases. That’s true. But the fact is, I’m wealthy, my children have an excellent internet connection, I have enough time to make sure that they read—homeschooling works for me. If you’re a poor family in the South Side of Chicago, you depend on schools both for reliable, safe childcare and for education. Now, it wouldn’t have to be that way, but government made schooling mandatory—you have to send your kids to the state monopoly school. Well, now if schools are going to be remote because of the vote of some self-interested union, then we’re not going to see the effects on a generation of children who are being denied the education the government requires them to consume. They have no alternative. The result is it’s going to take years and years before we get to measure the unseen losses. So I think the genius of Bastiat is he came up with a pithy phrase to describe a general problem. What’s disappointing is that we have learned nothing. That was written in 1850. We have learned nothing.
Public Choice Theory and Rent-Seeking [30:31]
Bob Zadek: And what’s so interesting is as we talk about the unseen, we’re also going to bring in, Mike—I think I’m correct in this—yet another, well, you used the phrase “pithy,” but quite accurate economic concept, which is the concentrated benefits and diffuse detriments. The reason the Chicago teachers have fought so hard, and the reason they seem to be—although it’s fluid—carrying the day, is the effect of yet another economic concept which is: for each teacher, the benefits that they perceive to themselves is quite dramatic and very concentrated. They get to be, in their minds, totally protected against contracting an illness, and also they are paid for not working, perhaps—a substantial benefit. The detriment is spread over large numbers of parents and students in a way that’s not directly measurable, and at any event, it’s hard for the individuals who are harmed, who have a lesser detriment, to fight with the same energy that the teachers with a concentrated benefit. It happens a lot in lobbying; lobbyists spend lots of money lobbying for favors because the benefit to the recipient of the tax benefit or the like or the grant is substantial. The detriment to the average citizen is about a penny, and therefore no citizen is going to spend much time resisting that. So that imbalance is a dynamic which affects governmental policy, and we see it happening, I think, in Chicago. So the premise, and we will continue of course because I find this so interesting, is how economics—the study of economics and widely accepted economic principles—have so many explanations as to what’s been going on in our country over the past few years. And it struck me, it’s painful to me to see, as I said earlier, the fact that no public official ever has made a policy and defended the policy based even in part upon the advice of economists, only upon the advice in this case of certain medical personnel. And Michael, as you said, you’re right, to say economists get it right and healthcare professionals get it wrong, and you cite Jerome Powell—needless to say, the job of an elected official is not only to pick the right disciplines to get advice from, but the right practitioners in those disciplines. Obviously, any senior executive in the public or private sector, his or her performance will be measured upon the judgment of listening to the right people. So of course you are right about that.
Now, that is a perfect segue, Michael, into another economic concept because it has so much to say and to explain about what’s going on. So Michael, you have written extensively and spoken extensively about a concept called Public Choice. You were president, I said earlier, of the Public Choice Society back a few years back. So Public Choice—those words are unhelpful in explaining the important concept. Tell us about Public Choice, and we will see how much it has to explain to us about what’s going on in our country today.
Mike Munger: Well, Public Choice was founded in the late ’50s and early ’60s partly as a response to the kind of problems that you’ve been talking about—that most of the work in politics made an assumption that people who worked in private markets were self-interested, but people who worked for the government were concerned—if you were a government official, then you were a public servant. And so what you worked for was the public good. Now, sure, it’s hard to define what the public good is. So what Public Choice did was to take the tools of economics but apply it to the study of government institutions.
And one example that you just gave, as you said it is a good segue to Public Choice, is if you think that the government does what the people want, you’re just mistaken. Politics runs through elections, and elections tend to work through groups of people, coalitions of people, each of whom have very specific interests. Which means that small concentrated groups are always going to defeat large diffuse groups for just the reason that you said: concentrated benefits and diffuse costs. Well, the result of that is that if you want to rely on political processes, what’s going to happen is not what’s good for the people; what’s going to happen is good for corporations, or unions, for groups that have concentrated interests that can organize.
The Munger Test and Constitutional Limits [33:31]
Mike Munger: And that should put a very different sort of spin when you say, “I want the government to do this.” I often ask people to do what I call the “Munger Test,” which I think is sort of the essence of Public Choice. When they say, “I think the state should be in charge of this,” I say, “Really?” and I take out the word “state” and I put in “Donald Trump” or “Nancy Pelosi.” I’m not trying to make a partisan point. Because there is no state. What there is—and this is the essence of Public Choice—what there is is individual politicians who have incentives that are created by the system of politics. And the incentives that are created by the system of politics is to reward organized interest groups, not the people. It’s to reward organized interest groups.
So you think that the government should be in charge of healthcare. Really? All right, so Donald Trump should be in charge of healthcare, or Nancy Pelosi should be in charge of healthcare. “Well, no, that’s not really what I meant. I mean scientists.” Well, that means you favor fascism. You want to suspend democracy and to let scientists do whatever they want without being democratically accountable. “No, no, that’s not what I want.” Well, in that case, what you want is Donald Trump or Nancy Pelosi—actual real people. So the Munger Test is if somebody says, “I think the state should be in charge of this,” take out the word “the state” and put in actual politicians elected in a system that is dominated by organized private interests like unions and corporations. So we should be much more humble about thinking, “Oh, the state should be in charge of this.”
So to answer your question, Public Choice is just the science—and I mean I use that word on purpose—it is the science of understanding institutions in terms of the incentives that are created, not in terms of what you would like to attribute to the motivations of people who work in that system. It is simply not true that politicians are public-interested and corporate CEOs are greedy. Everyone is out for their own self-interest. Everyone is trying to pursue what they think is the good. And the fact is that maybe politicians say, “I want power so I can impose my will on other people,” and they think it would be good for them. But one of the things that terrifies me is the thought that someone might come to my house and say, “I know what’s good for you.” That’s not the way the system works. And one of the things to point out, just to supplement a tiny bit your initial presentation, is here we have a private actor—a corporation, an individual, but let’s say a corporation or another economic unit, a union or a public university, pick whatever you wish, they’re all one way or another economic units. They have two choices, really only two choices, to get customers. And public universities want customers, unions want customers, charities want customers, and businesses of course want customers. Two ways you can get customers: one is to persuade the customer that that potential customer is better off buying your good or service—in effect, compete and give them what they want at the price they want. Or there’s a choice, there’s another choice: if you cannot persuade people to voluntarily become your customer—attend university, join your union, give money to your charity, or buy your product—if you cannot persuade them in the competition of the marketplace, the other way is to force them to. Well, the only organization in society that is lawfully allowed to force people to do things and take away your liberty or your life if you don’t do it is government. So government is the persuader because they have guns and jails. So when you go to government and try to get government to give you a benefit, what you’re really doing is you’re using the power of government—guns and jail cells—to get you customers and money you otherwise couldn’t get. So anybody who petitions the government is one way or another simply trying to use force, armed persuaders, to get you customers that you cannot get in the market. And I just wanted to remind our audience, Michael, just to supplement a bit of your statement, that the population is in one way a bunch of supplicants coming to government and asking for help, and the help they want is: get us customers or get us money.
Mike Munger: I think the important thing to remember—because the way you said that last bit, “supplicant asking for help,” that sounds like that might even be kind of good. Poor people, people who need things, they can go to government, and if government uses force to do that, that’s okay. But you’re describing a concept in Public Choice that’s called rent-seeking. And rent-seeking is the pursuit of artificial benefits. And if I’m a corporation, it’s a lot of work to go out and make products people want to buy. If I can get the government to limit my competition, to prevent others from entering this industry, I can make a lot more money much faster. It’s just that I’m not creating any value. But the question that I want to ask people is—because they’ll say, “Yes, the supplicants will come and they’re asking for help”—why would you think that a system based on majorities would protect minorities? Why would you think that a system based on power would protect the weak? The last thing that the government cares about is the poor because they have no power. So in fact, what really matters—and let me emphasize this, I know you said it, but what really matters—is that state activity is based on coercion, on the threat of violence. Market activity is based on voluntary exchange, where if I cannot persuade you to pay me for my product, I have to go somewhere else or go out of business. I can’t force you to do it. So people who want government say, “Yes, but we want the government to do the good thing.” Why would you think a system based on majorities would protect minorities? Why do you think a system based on power would protect the weak? It’s just crazy.
Madison, the Bill of Rights, and Ambition [42:40]
Bob Zadek: Now, Michael, when James Buchanan first started writing about Public Choice, it wasn’t that many years ago. It was at the time considered to be groundbreaking, despite the fact that there were antecedents to his writing going back perhaps a hundred years. So what was revolutionary at the time about his work? Because he was given lots of accolades at the time, and it now seems to us looking back it was kind of stating the obvious. But it wasn’t for some reason stating the obvious. So what was so significant at the time he did his writing?
Mike Munger: James Buchanan started writing in the late ’50s and then wrote a number of things during the 1960s with a number of co-authors. And one of the things that Buchanan was interested in was what he called “limiting Leviathan.” So he was interested in the role of constitutions in creating limits on what the government could do. He wasn’t an anarchist; he believed that it was important for government to have these powers, but he wanted to limit Leviathan.
Now, what you said is true about that maybe that just seems like common sense, but it wasn’t common sense at the time, and in fact, I don’t think it’s common sense now. It’s actually still pretty controversial. Because the idea that the constitution should limit what the government should do—that a filibuster should limit what the Senate can do, that requirements of the Second Amendment should protect gun rights even if a majority of people want to take them away, that the First Amendment should protect your ability to speak even if you’re a conservative and it’s controversial and a majority want to take it away—that’s actually still pretty controversial. So many people, yes, the principle… James Buchanan won the Nobel Prize. He won the Nobel Prize in Economics in 1986. And a lot of critics both said he’s wrong and he’s obviously right. I’ve seen in the same article would say that he was wrong, we need more powerful government, and of course, well, he’s right, we need a constitution. Well, what people mean by constitutions is not limit on the power of government. They want the constitution to limit the bad guys from doing what they want. But I’m a good guy, and so government should be able to do this.
So I think James Buchanan’s contribution was to remind us in some ways what was written in the U.S. Constitution, the framers of the U.S. Constitution. In fact, explicitly James Buchanan’s great book, The Calculus of Consent, which was published in 1962, Buchanan said, “All we were doing is writing down some of the scientific principles behind what James Madison was trying to accomplish in the Constitution.” And Buchanan was surprised that it was controversial because it’s actually already embodied. That’s the reason the U.S. Constitution was written.
Bob Zadek: It’s a perfect segue into exactly what I hoped we would get to talk about, which is the U.S. Constitution. And your reference to Madison is, of course, spot on. Madison famously said—and I’m only going to paraphrase, not to quote—Madison famously said, “If all men were angels”—and by men he meant people—“if all men were angels, we wouldn’t need laws.” He could have said, “If all public officials were angels, we wouldn’t need constitutions.” In other words, the purpose of the constitution was recognizing the fact that once you create a government and give government the exclusive power to use force and coercion, once you create that very special status—only government can lawfully use force, coercion, and power—once you create that force, you darn well better have a lot of controls on the use of that force. And it’s not inaccurate—sorry for the double negative—it’s not inaccurate to say that the Constitution was written having created government and its lawful use of force. Well, the founders said, “Having created this potential monster, we better spend the rest of our time building in controls.” And I think that the founders probably were channeling James Buchanan, Public Choice, and the writings that preceded Buchanan in trying to recognize Public Choice and then control it. And probably they didn’t appreciate the need for control and might not have done, looking back, as good a job as they could have had they seen the misbehavior of government these days. So is it… can you… as you read the Constitution, Michael, aren’t there many examples, indeed isn’t much of the Constitution written in recognition of the fact that all men are not angels and in recognition of the fact that Public Choice behavior will dominate and we better control it?
Mike Munger: Well, we know a lot more than we did in 1787, 1789. I think what’s interesting is that I think Public Choice is the application of economics to political science to generate scientific principles that are like engineering. What are the physical principles of engineering that make a constitution work? How does it fit together so that the state is powerful enough to accomplish what it needs to do, but power is not so concentrated that it can be misappropriated and used by bad people?
So James Buchanan wanted to argue that we cannot rely—and again, he’s just channeling Madison like you said—James Buchanan said, “We can’t rely on good people. What we need is good rules.” And if you have good rules, then even bad people will basically act as if they were good because the structure of the constitution creates a set of incentives and imperatives. And James Madison also wrote this in Federalist No. 51, where separation of powers—the advantage of separation of powers is that ambition can be made to counteract ambition. So I know that the Senate, people in the Senate, they really want more power. I know the President really wants more power. So if the President tries to grab too much power, members of the Senate will block that because they themselves want power. Now, that means that you’ve got two self-interested groups, the President and the Senate, but they check each other. And that system of checks and balances, that system of divided government, is very frustrating if you think you know the answer, if you think, “This is what we need to do, but I’ve got to persuade the House, I’ve got to persuade the Senate.” The point, and you said it exactly right, the point was that divided government means that you actually have to have a substantial consensus. A small group cannot grab power even if they have the best of motives in the sense they think that what they’re doing is good for the country. I’m not saying they’re trying to grab power for themselves; what they’re trying to do is grab power for the good of the country, but it’s just that there’s no consensus among the people that that’s what we should do. So it’s very… constitutions are very frustrating. “I know the right thing to do, but I’m prevented by the Senate, by the filibuster, by the Supreme Court. Let’s pack the Supreme Court. Let’s get rid of the filibuster.” The fact is, you need a large consensus in order to use guns to make people do things they don’t want to do. You should value that part of the system, not to try to get rid of it. That’s the insight of Public Choice. But you’re right, it was embodied in the Constitution as it was written by the founders. Their intuition has later been proved by the science of Public Choice.
Bob Zadek: And to me, the best example of how the founders understood Public Choice theory without the words, without the label, but did an inadequate job is the Bill of Rights, the first ten amendments. But to call them amendments is almost a misnomer in my opinion because the amendments were almost contemporaneous—it was a year later with the drafting of the Constitution. It really was a rider to the Constitution rather than amendments. But what is my point? My point is that the founders, Madison in particular, believed the Bill of Rights was unnecessary. You didn’t have to say the government cannot abridge in any way freedom of speech, freedom of conscience, religion, freedom of assembly, and the like. Madison would say, “You don’t need the Bill of Rights because after all, nothing in the Constitution gives the government the power in the first instance to do so.” But the proof that Madison was in that regard naive is any litigation in support of free speech never cites the Constitution itself as saying the Constitution doesn’t empower government; it always cites the Bill of Rights, which means without the Bill of Rights, the Constitution, which was felt to be a good finished product, didn’t do it. It’s always… we’re always citing the Bill of Rights and not citing the Constitution itself. So Madison was in this one regard, I think, hopelessly naive.
Conclusion [50:48]
Bob Zadek: Now, we have a couple of minutes left, Mike. What are… tell us the parting wisdom of how the knowledge of Public Choice helps us understand, will help us evaluate the behavior of government in the most significant event going on now, which is the COVID epidemic and organizing society to its collective best interests. We have about a minute left.
Mike Munger: The frustrating thing to me is that it seems like both sides have decided that what they need to do is to grab power because they’ll have power forever, or to be able to do as much as they can now while they have power. So it used to be that my colleagues on the left at Duke would tell me, “You know, I can’t really imagine the stuff you say about having a bad president. We need a more powerful government and the president will always be good.” Well, after 2016, that’s no longer hypothetical because they thought Trump was actually dangerous. I assumed that once Trump was no longer in office, they would say, “You know what? We do need a less powerful president.” But they didn’t. They think that they still want a very powerful president in the person of Biden. They want President Biden to be able to control the economy, to be able to control healthcare. I think they’ve gone exactly the wrong conclusion. Instead of saying we need a less powerful president, they need to say we need to never lose again. So they’re trying to pass a voting rights act that will ensure…
Bob Zadek: Michael, we’re going to run out of time. I just want to say goodbye and thank you. Thank you to Mike Munger, Professor of Economics and Public Policy at Duke University, for sharing with us his explanation of Public Choice, an area in which he is quite an expert, and for helping us to understand what’s going on in Washington and in the statehouses as we work our way through the current crisis. Thank you so much, Mike, for your time.
Mike Munger: Thank you. That was great.
Bob Zadek: And thank you to my friends out there for sharing your Sunday morning with us. So long.