Michael Munger on Constitutions
Dec 20 2021

image-150x150.jpeg More than we need rules, argues Michael Munger, we need rules about the rules. So does the United States need a new Constitution? Listen as the Duke University economist and political scientist talks to host Russ Roberts about public choice, consenting to coercion, and whether constitutions matter.

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Did an 800-year old piece of parchment really change the world? Nicholas Vincent of the University of East Anglia talks with EconTalk host Russ Roberts about the Magna Carta, the founding document of English law and liberty. The Magna Carta...
Michael Munger on Choosing in Groups
Michael Munger of Duke University talks with EconTalk host Russ Roberts about his latest book (co-authored with Kevin Munger), Choosing in Groups. Munger lays out the challenges of group decision-making and the challenges of agreeing on constitutions or voting rules...
Explore audio transcript, further reading that will help you delve deeper into this week’s episode, and vigorous conversations in the form of our comments section below.


Dec 20 2021 at 1:29pm

I am surprised that Hayek’s “Why I am Not a Conservative” was not explicitly mentioned. This idea was discussed, but I think Hayek’s synthesis of the problem of tradition and embedded knowledge versus liberal progress is well diagnosed, especially through an American political lens.

I found the discussion of the US Constitution to be a bit misleading from my perspective. I may be restating Munger’s point about how lucky it was to get the US Constitution, but I would say that the US Constitution is not dead just as the Magna Carta is not dead, but is another piece of the emergent phenomenon that is the institutions of law and governance.
“The Science of Conjecture” was a book that I read based on Taleb mentioning it somewhere, and is, in part, an exposition on the history of law including English Common Law and how the institution of law and governance is always evolving and adjusting and traces back to biblical law and evolved through history. It was almost made to sound as if the US Constitution stood apart from this emergence. It was in opposition to tradition, yes. But I think it was so limited in its scope at the time of its introduction we can say it stood on the shoulders of English Common Law, including the Magna Carta. Obviously legislation is more prescriptive than the midrashic ebb and flow of legal interpretation, but legislation is also emergent and this includes legislations about legislation, or rules about making rules.

Michael Munger
Dec 20 2021 at 3:29pm

A fair point. This was actually where we (or I?) was going with the discussion of knowing WHICH traditions (Relatively Absolute Absolutes) from the past to accept, and which to try to change.

But then the flow of conversation went a different direction. Still, you are quite right that THAT is the answer to “which traditions?” question. Conservatism protects traditions simply because they ARE TRADITIONS. Hayek would argue that SOME traditions turn out to embody wisdom. Those need to be kept, but one still needs an underlying framework to know which is which. Thanks for listening, and you are right, Ethan! Good job.

Dec 20 2021 at 4:29pm

A system of making decisions that even losers accept is not necessary for politics. Saudi Arabia, Russia and China all have systems for making collective decisions, but losers often do not accept those decisions as fair. In these systems a powerful minority can impose its decisions on others through coercion. We do not generally say that Saudi Arabia lacks politics.

Perhaps, Michael means that a system which losers accept is necessary for efficient collective decision-making without a sovereign (a single individual who arbitrates elite disputes). I say elite disputes because even dictators can simply use judges for nonelite disputes, and they do. For elite disputes arbitration is difficult. There’s three main systems existing today
1. Constitutions broadly defined
2. A single leader arbitrates, Hobbes style. It’s a common and simple system. Many dictatorships use it, but it also resolves disputes between federal agencies in the US, by president.
3. Factions select policy “compromise” based on who they expect to win a fight. A faction with an 80% chance of winning gets 80% of policy control.

Democracies pretty exclusively use solution 1. In fact the most solution-2-reliant democracies are presidencies and autocratize much more often than parliaments.

Dictatorships use a mix of all three. System three is obviously costly, especially when infighting can invite a challenge from outside the ruling group. Some regimes rely heavily on constitution-like mechanisms that please losers within the regime, like PRI in Mexico, the Vietnamese CP, most surviving monarchies. Others rely extremely on leader arbitration like Stalinist Russia, the Congo and berdimuhamdows Turkmenistan.

in other words, the distinction between constitutional politics and sovereign politics continues within autocratic regimes.

Richard Fulmer
Dec 20 2021 at 6:35pm

Did de Jasay’s critique of constitutions include the argument that the Articles of Confederation were flawed and that the Constitution was an improvement, or was that a point that Dr.Munger made in explaining de Jasay? If the former, then it seems to me that de Jasay was undermining his own claim that constitutions are irrelevant.

The Articles were, in fact, inadequate. Under them, some states refused to help fund the new nation, which, as a result, couldn’t pay its debts. Some states refused to abide by the Treaty of Paris that ended the Revolutionary War. And some insisted on conducting trade wars with each other.

The Constitution corrected those and other of the Articles’ shortcomings. As a result, the nation ended its march toward disintegration.

Paul Franco
Dec 20 2021 at 11:58pm

As usual, a very interesting podcast.  I am not sure that I agree with the guest’s view that, from a practical perspective, the only portions of the US Constitution that are still enforced  are the First and Second Amendments.  I am reading Christopher Caldwell’s book, the Age of Entitlement.  Caldwell’s thesis is that the US has two constitutions.  The first one is the “original” constitution that everyone learns about.  The second one consists of all of the civil rights legislation and related regulations.  It would be very interesting to hear Christopher Caldwell on the podcast.  Thank you.

Michael Munger
Jan 17 2022 at 5:11pm

That was the HOST’s view, not mine. And even Russ was quoting someone else.

But I immediately protested, saying there was more, and gave the example of the rules about the Electoral College.

John P.
Dec 21 2021 at 9:53am

I’m about halfway through listening, and I am loving this conversation.

On the subject of constitutions:  A few years ago, I read a quotation–I think I read it here or on Cafe Hayek–along the lines of “Constitutions are either unnecessary or ineffective.”  Does that ring a bell?  If so, can anyone point me to the original source of the quotation I have in mind?  I would really appreciate the help!

John Paschetto
Dec 21 2021 at 6:44pm

Oops–I’ve now listened to the rest of the podcast, and I’ve learned that it’s from De Jasay. Should’ve waited until I’d heard the whole thing.

Dec 21 2021 at 6:34pm



new listener to your podcast

i just had to chime in that the story about the German lady assaulting someone with an umbrella because of jay-walking raises an interesting paradox

That is … I assume Germany has rules against assault and so there is an inherent contradiction that that woman was violating the proscription against assault to enforce the proscription against jay-walking

Thanks for a thought provoking podcast



Dave B
Dec 23 2021 at 12:18pm

this discussion reminded me of a joke I heard growing up in Russia. It was something about a girl crying by the side of a road and a man asking her why she is crying. The girl answers that she is trying to walk home from school by herself. Her mother told her to not cross the road until she looks both ways and lets all the cars pass. But there hasn’t been a single car yet… We were telling this joke as little kids and laughing at how stupid the girl was.

I have 4 kids from 2 to 9 years old. I find the idea that kids are unable to understand nuance ludicrous, but our modern society seems to have taking this infantilizing position towards children.

Michael C. Munger
Jan 1 2022 at 11:11am

Thanks for listening!

And, right. It was not a “rational” act. She was actually angry, furious, in fact.

As we discussed, this was not a principle of law for her, but a violation of a norm so fundamental that she had to act on behalf of the children.

I don’t want to exaggerate, it was not as if she did any damage. It was more like getting my attention, RIGHT NOW.

Robert Semmens
Dec 23 2021 at 2:58pm

what are the books that constitute the Public Choice Pentateuch–the five founding books of Public Choice–besides The Calculus of Consent? 

Michael Curtis Munger
Jan 17 2022 at 5:14pm

The reference comes from this article, by Bernie Grofman:


But Bernie’s answer is:
Arrow, Kenneth. 1951, second edition 1962. Social Choice and Individual Values.New York: Wiley.3

Black, Duncan. 1958. The Theory of Committees and Elections. London and NewYork. Cambridge University Press.

Buchanan, James and Gordon Tullock. 1962. The Calculus of Consent: The LogicalFoundations of Constitutional Democracy. University of Michigan Press.

Downs, Anthony. 1957. An Economic Theory of Democracy. New York. Harper.

Olson, Mancur. 1965. The Logic of Collective Action. New York. Schocken.

peter Silverman
Dec 24 2021 at 1:03am

After listening to every episode, and learning so much each time, I finally found one that I could contribute to.

Israel has a Basic Law that serves to protect individual rights.  https://en.wikipedia.org/wiki/Basic_Law:_Human_Dignity_and_Liberty

Midrashim are a way of understanding parts of the Torah, but not a legal tool.  There are formal rules of exegesis of scripture. See https://en.wikipedia.org/wiki/Talmudical_hermeneutics.  Jewish common law develops over time through compilations of laws by rabbinic authorities and the commentary on them. See https://en.wikipedia.org/wiki/Shulchan_Aruchand_rulings [Wikipedia labels this as a nonexistent page–Econlib Ed.]. It also develops narrow step by step through rulings by decisors (poskim) whose letters were circulated, and are now published.  See https://en.wikipedia.org/wiki/Posek.

[Hi, Peter. Thanks for your comment. I’ve revised your shortened urls to full urls. Please use full urls on EconTalk so readers can see where they are going before they click the links.–Econlib Ed.]

Jan 3 2022 at 3:50pm

I love the ‘sacred text’ vs. ‘rules about rules’ positioning of the Constitution. My New Year resolution is to use this in conversation more.

Bill O'Byrne
Jan 3 2022 at 6:24pm

Hearing Russ Roberts laugh in pure joy and delight at something is one of the great pleasures of Econtalk.

Comments are closed.


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TimePodcast Episode Highlights

Intro. [Recording date: December 1, 2021.]

Russ Roberts: Today is December 1st, 2021, and my guest is the inimitable Michael Munger of Duke University. This is Mike's 40th--yes, count 'em--40th appearance on EconTalk, easily all time record for most appearances on the program by a guest. He was last here in August of 2021 talking about free markets. Mike, welcome back to EconTalk.

Michael Munger: It is great to be on EconTalk. Thank you.


Russ Roberts: Our topic for today is constitutions: changing constitutions, doing without them, writing one, whether they're important. And, we're going to start with a little bit of, for background, the role that constitutions play in the Theory of Public Choice. And, we might start by reminding listeners and viewers what Public Choice is, since it's a term that sounds like one thing and isn't quite the same to you and me. So, why don't you begin?

Michael Munger: Well, remember the origins of Public Choice were the Committee on Non-Market Decision Making. In fact, that was the original name of the journal. And, to be fair, they were right. That's even clunkier and more meaningless than Public Choice. So, it's true that choosing Public Choice was an improvement, but that's only because Committee or Papers in Non-Market Decision Making is even worse.

The usual account of the origins of Public Choice is the--as Alistair Cooke put it on BBC 4 [British Broadcast Corporation 4] upon the occasion of Buchanan winning the Nobel Prize--the homely but true observation that politicians, after all, were very much like you and me. That is, that they're self-interested and that we should not assume that they're angelic or they're smarter. They might be, but we shouldn't assume that as the justification for the state. And, that is in fact an important part of Public Choice.

But, the real origins of Public Choice, and particularly the first of what we now think of as the Public Choice Pentateuch--took the five founding books of Public Choice--was The Calculus of Consent. And, The Calculus of Consent takes up some of the work--

Russ Roberts: Written by?

Michael Munger: It was written by James Buchanan and Gordon Tullock, and it was published in 1962. So, this is right at the origins of what we now think of as Public Choice.

One of Buchanan's heroes was the Swedish economist--political economist--Knut Wicksell. And, what Wicksell had said--and it was interesting--was that the only justification for coercion was consent.

And, we're used to seeing that in bilateral contracts.

So, when you think about it, if I want you to put a roof on my house, the only way that that can happen is if we have unanimous consent. Now, it's just between me and you--

Russ Roberts: Meaning? Yeah. Meaning?

Michael Munger: It's two people. I say, 'I'll pay you $5,000 to put a roof on my house.' You think about it. You say, 'Yes.' And so, you agree to put the roof on the house. I agree to pay the $5,000.

We have some mechanism of enforcing that. And, in fact, we will agree to be coerced.

Unless we have some means of ensuring compliance with the agreement, we're actually not free.

So, a key to liberty is the ability voluntarily to subject yourself to coercion if you violate the terms of the agreement. That's the way we make binding agreements.

Russ Roberts: Meaning--you said binding agreements when you went out there for a sec.

By coercion, you mean: If I don't do a good job on the roof, you can take me to court and I might be fined and money could be taken from me in my bank account. And, if you don't pay, I can sue you and you could either go to jail or your wages could be garnished or your house could be seized. Is that correct?

Michael Munger: Yes. And, that those could be solved by reputation. They could be solved by repeat business. But, it's much cheaper if we have impersonal exchange: You and I can trade, but it takes unanimous consent.

So, Buchanan's insight was, and Wicksell's insight was, in that circumstance, most of us have no problem. And, in fact, the pro-market people are quite happy with the idea of there being some sort of punishment--or let's call it coercion. It's not exactly the same as--you're not--but, you might go to jail if you defraud me, if you pay--it might be something worse than I just sue for damages.

So, most of us, if you violate the agreement--you make a promise, you violate that--we agree that you're going to be subject to coercion; and you deserve it. Even the most libertarian anarchist people think coercion is justified under those circumstances. So, the question--

Russ Roberts: And, one last thing. You said even anarchists. So, it might include one of us coming to the other's house with a weapon.

Michael Munger: Probably we're not going to do that. In division of labor, somebody's going to specialize. So, there's a, a private, third-party enforcement agency--

Russ Roberts: Okay--

Michael Munger: And, in the contract, we both agree that this third-party private enforcement agency--because they specialize in that, it's easier for them--division of labor means that they're going to be better at it. They'll have practice. They'll have tools and equipment. So, the usual Adam Smith story about division of labor.

But, so, it's not the state, but we're going to--

Russ Roberts: Could be--

Michael Munger: It could be. But even if you think there should be no state, we expect that there would be parties that specialize in the provision of enforcement and violence, provided it is justified by consent.

Russ Roberts: A prior agreement.

Michael Munger: Yeah.

Russ Roberts: And, I have to say before we go on that you said this group would specialize and we'd turn it over to this third party. I find it hard to believe there'd be a third party that could swing a baseball bat, say, at someone's knees, better than you could, but okay. Fine. I've seen you on a baseball field. I [crosstalk 00:06:15].

Michael Munger: I admit. I would not be a professor. I would be the guy with the baseball bat. That's probably true. I'm not proud of that, but it's true. That's my highest-valued use for society. Okay: No, that's not true.

So, Knut Wicksell said we justify coercion under the circumstances that we have informed consent. And, you have outside options. You have alternatives. You have maybe some right to buy your way out of the contract. So, there's a whole system that allows us to say, under those circumstances, coercion is justified.

Wicksell said we ought to use the same logic, the same restriction, for public goods and collective actions. There's a lot of activities that require more than just two people--that, to provide them, there's three or four, 10 or 50.

And so, Buchanan, being a redneck from the South like me, used the rather homely example of mosquito control. If your neighbors have a bunch of old spare tires, as of course one does, laying around their property--I do, too. I have two sitting out back, and they're full of water and mosquitoes. I'm sure my neighbors look at that and say, 'He's not very public spirited.'

So, all of us have to participate in this, because mosquitoes move around. And so, we all promise that we will get rid of all the things that produce mosquitoes on our property. And, if we don't do that, we might be subject to at least the censure: our neighbors will say, 'You know, that guy's acting badly.'

Well, we might even, for something where we need to do flood control, we need to build a dam. A lot of us have to agree to contribute to the flood control.

But, there's the free-rider problem. So, we might all sign a contract that makes it contingent: 'I will only pay if everybody else pays. And, we will contract with some third-party enforcement agency that anyone who doesn't contribute this fee towards the construction of the flood control berm will be punished.' That's beginning to look a lot like taxes, but it's voluntary taxes in the sense we all consented to be taxed; and it's on condition that everybody else pay their taxes also.

Russ Roberts: So, I have to note, and I think that's the first use of the word 'berm' in over 800 episodes of EconTalk. A berm is a--it has various ways I think you can use the word, but it includes a mound of earth that might deter water.

Michael Munger: So, it's a levee, really, in the context.

Russ Roberts: Kind of. Yep.

Michael Munger: So, a long mound of earth--

Russ Roberts: Wait a minute. But, the question is [crosstalk 00:08:50]--

Michael Munger: A long mound of earth--

Russ Roberts: A long mound of earth.


Russ Roberts: But, here's the question. Say, I'm just a jerk. I don't want to be part of this agreement. And, I say, 'You guys build the levee. You guys build the berm. I'm not in.' So, the rest of you start to wonder, and of course--it crosses everyone's mind that they might be that person. Of course, if I want to see you at the cocktail party or the local YMCA [Young Men's Christian Association] or whatever communal things we do together, it's not going to be good for your social life to be that person.

But, I don't understand the consent/coercion thing. The consent/coercion thing is that, as long as we all agree--we might all agree to be coerced. We might all agree ex ante--in advance--that we would pledge to contribute the money, and should we renege on that pledge--should we say we changed our minds--we would have signed a document that allowed someone, a third party, private in the first story but maybe government later, to take that money from us involuntarily. Is that a good summary?

Michael Munger: Well, it's a good summary. And, you have raised Buchanan's objections to Wicksell.

So, Wicksell was saying the only things that we should do are those for which we can get unanimous consent. But, someone--and we'll call that person The Jerk--might say, 'The others are infra-marginal.' And, what 'infra-marginal' means: that, it's worth enough to them to pay into this dam fund that I actually don't have to. So, I don't consent, and you cannot coerce me if I fail to pay. And, I know--there's five of us--the other four of you care enough about this that you'll all do it.'

So, we can't actually use literal unanimous consent--but we can do that for the contract to put on the roof. If you're a roofer and you say, 'No, I don't want to do that,' it would be ridiculous for me to say, 'No, no. You have to.' But, it's pretty plausible to say, 'If all five of us need to contribute, four of us have agreed, we'll force the other person against their will.'

The problem is that's a different thing. That's not justified coercion under this system.

And so, what Buchanan said was: It seems like the logic of Wicksell's approach is airtight, and that if it's not necessary, it is sufficient. That is, suppose that I have agreed to be coerced if I violate my promise, and then I violate my promise. That probably really does justify coercion: that I do justify being punished.

So, what Buchanan said was we probably cannot use the Wicksellian system at the level of outcomes or actual policy, but we could use it at the level of rules.

And so, what The Calculus of Consent does is to say--and this actually echoes a famous question that was asked by Rousseau that we have talked on the show about--Rousseau's question was, 'How can it be said that a man is both free and yet bound by wills not his own?' How can it be that a man is both free and yet bound by wills not his own?

And so, your fifth guy, The Jerk, is being bound by wills not his own, because four of us say, 'No, no. You have to pay taxes, even though you don't want to.'

And so, Rousseau's answer, I think, went off the rails. Please.

Russ Roberts: Yeah. Just one clarifying question. It might not be a jerk. It could be a person who [crosstalk 00:12:11] doesn't have a basement.

Michael Munger: Yeah. Right. I said he might have perfectly good reasons. That's why I like your example.

Russ Roberts: Let's say he doesn't have a basement.

Michael Munger: We call him a jerk.

Russ Roberts: Yeah. But, what if he doesn't have a basement?

Michael Munger: Yep.

Russ Roberts: So--

Michael Munger: What if he has a high ground?

Russ Roberts: Yeah. Relatively high ground.

Michael Munger: Yeah.

Russ Roberts: Or just he's poor and he's decided that a little bit of water in the basement once a year, twice a year, 10 times a year is [crosstalk 00:12:32]--

Michael Munger: He doesn't need a reason. He doesn't need a reason. He is an autonomous contractor.

Russ Roberts: Yes.

Michael Munger: So, whatever his reason, he is entitled to make this decision. That's also a big part of liberty. So, that's right. The other four are going to call him a jerk, but he may not be a jerk. That's a good point.


Russ Roberts: So, I'm a little bit lost. Before we go back to Rousseau--which I love that quote and I want you to answer his question--in the case I just mentioned where one person, either a jerk, or, the flood protection is much smaller for that person relative to the 20% share that that person's going to have to contribute out of the five people, what's Buchanan and Wicksell saying about that person at that point?

Michael Munger: I was about to say, and now I will.

Russ Roberts: Okay.

Michael Munger: So, Buchanan said you actually can't use the Wicksellian approach. And, the answer to Rousseau's question is that the question is not whether you consent to the outcome. The question is whether you consented to the rule by which the outcome was arrived at.

So, suppose that we have a meeting and we say, 'We have to do a number of things around the neighborhood. Some of them, you're going to want to do. Some, you're not going to want to do. But, maybe we can do log rolls. Maybe we can make some kind of arrangement. Let's have a thing called a constitution, which is a set of rules about rules.' That is, it is the way that we will make decisions. It's not the decisions itself. A constitution is not the decisions itself, although many constitutions are full of conclusions about the way things should be. But, a good constitution, by this reasoning, is rules about rules. We're creating decision processes, because deciding how to decide is the key.

Russ Roberts: So, in this case, if I were to move into this neighborhood, I might be consenting. It could be part of the term of owning a property in this neighborhood. I would be consenting to submit myself to a rule about when a levy--bad use of word there, L-E-V-Y--attacks. Sorry about that.

Michael Munger: That's the ambiguity that enriches. It's a levee levy.

Russ Roberts: Exactly. It's a levee levy. A levee levy will be acceptable to you once you move into this property under the following conditions. And, the conditions could be--

Michael Munger: But you keep skipping ahead--

Russ Roberts: unanimity. Well, they could be--oh, I'm sorry. I'm trying to just help people--help me see it.

Michael Munger: Right. But, if you'll just let me set the original conditions--

Russ Roberts: Oh, go ahead.

Michael Munger: then we will [crosstalk 00:15:10]--

Russ Roberts: Go ahead.

Michael Munger: Because you're right. You're making the perfect point three steps ahead.

Russ Roberts: Okay. Keep going, Mike.

Michael Munger: So, we have a meeting, the five of us, and we say: We are in the state of [?] nature. We are in a condition where we want to make a decision about how to decide things.

And, there's a lot of problems about doing things unanimously. Let's say that we will require three of the five of us, 60%, and that that's true even if there's a hundred of us. As it happens, the three out of five is a simple majority. But, even if our community grows, then it's 60%. A majority is not enough. We're going to use 60%.

And, we get unanimous consent for that. That is, this neighborhood is constituted to make decisions that are binding on 100% of the people if 60% of the people vote in favor of it. And, even if the neighborhood grows to a thousand, 60% is still going to be the rule that we use. And, we put that down on a piece of paper, which we call The Constitution.

And, now, we're at your step. We give that piece of paper to all prospective buyers and say, 'Oh, by the way, this is--you are consenting to this if you buy a house in this neighborhood.' So--

Russ Roberts: And, that's consenting to be coerced.

Michael Munger: Yes.

Russ Roberts: It's basically saying that if there happens to be a project that yields a 60% approval with a referendum, you're going to have to pay. And, if you don't pay, we'll coerce you to pay.

Michael Munger: And, notice that that's the way it often works. I haven't actually tried this argument, because I know that it won't happen, but it's tempting. I often drive too fast. And, sometimes, the police have objections to that and they want to talk to me. In fact, they insist. They say, 'We're actually going to talk now.' And, I could say, 'You know, I understand there was a vote about the speed limit, but I didn't consent. I wanted 80%. And so, I'm actually--'

Russ Roberts: Eighty miles per hour.

Michael Munger: Yeah. Right. Yeah. Right. Right. 'I want 80 miles per hour. And, I understand that it's a school zone and the speed limit is 25, but I didn't consent to that.' And so, not a thing. Not up to the cop. That's not going to work. So, I consented to the process by which the rules are decided, and therefore the rules are binding on me even if I disagree with the particular outcome.


Russ Roberts: It's not true that you agreed to the rules. Mike Munger didn't agree to the rules. You were born into a society with a certain set of rules.

Michael Munger: You're skipping ahead again. You're skipping ahead again.

Russ Roberts: I'm going to get a very bad grade on this episode, I can tell.

Michael Munger: We're in the neighborhood of our five people, and another thing our constitution said is that we will use 60% to decide the speed limits. And so, I consented because I bought property after being handed that piece of paper, and the speed limit says to 25 here in the school zone.

Now the question is, 'Does that theory--and, remember, we're talking about the origins of Public Choice. So, Jim Buchanan in The Calculus of Consent with Gordon Tullock said, 'We should think about constitutions as a set of rules about rules that create binding consent.' And, it's really important to be able to have consent as a justification for coercion.

Now, the question that you just asked, and it's a great one--it's the big one--is: 'Is there such a thing as tacit consent?' Because, notice that I've been really careful either to have actual consent of the original constitutors who voted unanimously or the people who entered knowing--being fully informed of the nature of the rules.

But, what if you're born into this?

So, David Hume famously made fun of the idea, because tacit consent is the Rousseauvian solution. If you're a citizen of the country, if you don't leave, you are bound by the rules. And, if you don't like it, leave. That's consent.

That's ridiculous. So, David Hume said: That's like saying you're taking on board a ship asleep. And, a hundred leagues out at sea, you wake up and you say, 'I don't want to be on this ship.' And, the captain said, 'Knock yourself out. Go ahead. Just jump over the side and be devoured by monsters of the sea. Up to you. But, if you stay on this ship, you are voluntarily agreeing to my rules, whatever they are.'

That's not real consent. That doesn't really create coercion. So, the reason I have tried to insist we go on this narrow and probably boring path is that the question is--

Russ Roberts: No. Never--

Michael Munger: 'What, if anything, is the justification for one person to coerce another?' And, for Buchanan, the only thing that can ever justify coercion is the prior consent of the person being coerced--the actual prior consent of the person being coerced.


Russ Roberts: So, I'm skipping ahead a lot. I apologize. And, I know I'm going to get a bad grade. I'm going to ask for probably either an appeal of the grade or maybe a makeup exam or some extra work I might do to boost it up at the end--

Michael Munger: Yeah. There are no provisions for either in the Constitution.

Russ Roberts: I was going to say we need a different set of rules for this podcast, obviously.

But, I've confessed on here before: I don't know Buchanan and Tullock. I don't know their work. It's one of the many holes in my reading and not set of knowledge. So, right now, you've just summarized Buchanan and Tullock's Calculus of Consent by saying, I think, that they don't believe in tacit consent. It has to be actual consent. Is that true?

Michael Munger: That is sufficient but not necessary, for justifying coercion.

Russ Roberts: Okay.

Michael Munger: And so, I realize that's a slippery answer.

Russ Roberts: Okay.

Michael Munger: But, that the question is--

Russ Roberts: Keep going.

Michael Munger: What is necessary?

Russ Roberts: Okay.

Michael Munger: And, Buchanan actually has a proposition about the status quo. And, later in his life, Buchanan became much more skeptical about whether coercion by states could be justified at all. Now, it might be justified by something else. But, he didn't think that the existence of a constitution necessarily justified coercion. In fact, he had some questions about whether constitutions really were as valuable as he had said for states.

But, remember James Buchanan actually won the Nobel Prize in large part for his work on clubs. So, if we have a private club, club goods are those that--in my neighborhood, there's four tennis courts and two pools. And, you can belong to that club. It is an excludable--that is, you have to pay in order to go in--but non-rival, meaning that the pool doesn't get crowded until there's a lot of people in it.

So, clubs are sort of social organizations. Nobody could afford--well, most people could not afford four tennis courts, a nice park, and two pools. So, collectively, we can privately create this public good of having the Racket and Pool Club. There's a constitution, and you only can go there if you consent to the rules of the club. You can be kicked out of the club. You can quit the club. You can go somewhere else.

So, that's actually what Buchanan is talking about, is that sort of constitution among private citizens for organizations that are not state. They're voluntary private associations. Which is why Alexis de Tocqueville is one of the central figures of this strand of Public Choice. So, the Ostrom Seminar Room at the University of Indiana at Indiana University was called the Tocqueville Room.

So, Tocqueville and voluntary private associations are the way to think. Those things are constituted. They have small-'c' constitutions in the sense they write an agreement and it's binding and it creates a justification for coercive response if people violate the rules.

But, then what about real constitutions with a big-'C' like the U.S. Constitution? And, what about states? What can we say about those?

Russ Roberts: Okay. Good. I think I got it. I'm with you. I'm totally with you, I think. But, did you want to say anything else about 'necessary' in the--did Buchanan feel he should pay his taxes? He didn't sign the U.S. Constitution. He was born into this country, never agreed to whatever the marginal tax rate he was stuck with. And, after he won the Nobel Prize, I'm sure he had to pay a big tax burden. He didn't agree to that. Did he feel justified? Obviously, if he didn't pay it, they'd take him to jail. So, they would coerce him. But, did he think that kind of coercion to collect taxes was legitimate?

Michael Munger: Answer to the question is one of the reasons why you probably have not read much James Buchanan, because he had an extremely frustrating response, and that was: He would invoke the Relatively Absolute Absolutes [RAAs].

Russ Roberts: Yeah, one of those.

Michael Munger: The Relatively Absolute Absolutes are a set of conditions that we accept as the status quo because the status quo has a special status. Status quo, for people, is the one outcome that doesn't need a majority or, in fact, it doesn't need anyone to vote for it in order to be binding. So, we always start from where we are.

And, this is actually a Burkean, an Edmund Burke. And, you've had Dennis Rasmussen, one of my friend Duke students, on the show a couple of times, I think, which--

Russ Roberts: and Yuval Levin, talking about Burke.

Michael Munger: Yeah. Right. So, Edmund Burke would say that there are binding rules that come down to us from the past, having stood this test of time as ways of organizing our society.

And, in fact, England doesn't really have a written constitution at all, but it does have a set of rules that have come down to us from the past. And we could pass legislation to change these.

But, by and large, the Relatively Absolute Absolutes are the things that we accept as part of our daily lives, that's--they're a pretty good way of organizing our lives. And, if we want to change them, we can work to change them. But, we really have to stick to the status quo.

So, what Buchanan does is kind of a trick. Instead of saying that we have to justify the level, he says we have to justify the change in the rules.

So it takes our consent to justify a change in the rules because the status quo has a special status.

Now, that's really bad. And, Hayek has this problem too, where Hayek wants these traditions that come down to us from the past--these habits, these laws, as opposed to legislation--to be binding, just because we know that they're right.

Well, some of them are wrong. Racism, patriarchy, some of those are really bad. How would you tell? Well, they're Relatively Absolute Absolutes [RAAs]. So, we are of two minds about the RAAs.

One, we mostly accept them, but scholars--there's nothing that's sacrosanct. So, everything is constantly up for questioning and debate. And we can change some of those norms. We can, by statute or actual constitutional provision, get rid of them. So, that is--certainly the weakest part of Buchanan's theory is the Relatively Absolute Absolutes.

Russ Roberts: I find that kind of interesting, actually. I don't denigrate it at all.

Michael Munger: Well, it's much more in accord with your own view--which is why I think it's weak.

Russ Roberts: I call that a cheap shot. But, I'm going to let it go.

Michael Munger: Yeah, that was a cheap shot, a dirty cheap shot.

Russ Roberts: I'm going to let it go. Actually, I'm surprised you say that. I do think there's a fund--I'm not much of a scholar of ideology in a deep philosophical sense. But, clearly, that argument of RAA--Relative Absolute Absolutes--there are no absolutes--

Michael Munger: Yeah, they are not absolute--

Russ Roberts: but there are some that are relatively absolute.

Michael Munger: Yep.


Russ Roberts: And, that argument is clearly a conservative argument. Small-, big-, I'm not sure what kind of size it is--but a conservative argument, versus, let's call it, not a liberal but a radical argument.

Michael Munger: Yeah.

Russ Roberts: The liberal--excuse me--the radical says, 'These rules, a lot of them are bad. They lead to bad things. We got to start from scratch.'

Michael Munger: We should start over. We can do better--

Russ Roberts: We can do better. And, they are correct. We could do better. But it doesn't mean we will do better. And, that's what makes a person a conservative.

Michael Munger: Yeah.

Russ Roberts: The conservative says, 'It's not just whether every rule is just. What's important, among other things, is civilization. And, what civilization requires is a set of expectations so that your will and my will don't clash every single minute.'

And, what norms do--norms are a way--something we've talked about a lot in this program, you and me. We'll link to those episodes--what norms do is allow us to lead our lives. Meaning, it sets the implicit rules of the game without having to have a constitutional convention every day to ask the question, 'Well, things have changed since yesterday. Perhaps it's time for some new rules.' That the status quo, even when it's unjust, which it inevitably will be--

Michael Munger: Absolutely--

Russ Roberts: the status quo has a virtue, which is that it's well known. And people do their best in the face of that status quo.

Sometimes, it means going around. It means avoiding. It means evading.

But, in a good society, a decent, pretty good society--which is the best you can hope for usually in a large world where it's not five people, but it's 5 million or for 50 million or 500 million--in a large world, you can't really fix everything every day. You don't have enough information and you don't have enough rules and you're prone to top-down corruption of power--if you have too much flexibility to move things around constantly, it's going to get hijacked--that maybe this is not a bad starting place many times.

And, that's just a really interesting idea. I guess it's a way to think about yourself, whether you are fundamentally a conservative or a radical. And, as I get older, I am more conservative. Right? When I was younger, I was, I think, more libertarian than conservative. I would say, 'Yeah, we got to start from scratch.' I mean, not literally, but there's so many things that we need to fix.

Michael Munger: Yeah.

Russ Roberts: And, lastly, I'm going to invoke one more thing, then it's your turn. The whole idea of the Chesterton Fence, which started to make an appearance here on this program in the last few years, is this really interesting idea that: you see something, it doesn't make any sense, really, so you say, 'Well, it's a fence. It's in the middle of a field. Let's tear it down. Why would you want a fence in the middle of a field?'

Michael Munger: It's in the way, literally.

Russ Roberts: It's in the way.

Michael Munger: By definition, it's in the way.

Russ Roberts: Clear it out, and let's allow more freedom and passage. And, the Chesterton response is, 'Well, since you don't know why they built it in the first place, you might want to be careful about tearing it down.' And, it could be, as you point out, and I've agreed to it many times, it could be it was built for really a horrible reason.

Michael Munger: Yeah.

Russ Roberts: And, you do probably, in that case, might want to tear it down. But, if you don't know that, you might make a terrible mistake.

And, similarly, I think that a lot of the opposition to capitalism in today's world is from people who don't like capitalism. And, I'm going to invoke one of my favorite Mike Munger things: the ugliest pig. Obviously, capitalism has to be the ugliest pig at an ugly pig contest. Could there be anything uglier? The answer is yes, but you don't know enough to rule it out.

So, you say, 'Oh, there's a thing called socialism? I'll have that.' 'Communism? I'll have that.' 'A =populist dictator who can finally set things straight? I'll take that, too.' Any of those would be better than the status quo. The status quo was awful.

And, that view--which is a fundamentally radical view, it is inevitably held more tightly by the young, I think, than the old, for a variety of reasons, some of which are attractive, some not--that view ignores the possibility that you could have an even uglier pig than capitalism. There could be worse outcomes. And, that's unimaginable, I think, to the radical. The radical says, 'I don't want those. We're not going to have those. We're going to have a different kind.' Okay. I'm done.

Michael Munger: Well. So--

Russ Roberts: For now.

Michael Munger: Buchanan was influenced a lot by Hayek. And so, if you look at The Calculus of Consent in 1962, it's pretty optimistic about the project of reason and the development of a science of constitutions. By 1980, Buchanan had been influenced more by Friedrich Hayek. And, Hayek, in the Counter-Revolution of Science, said--so, it's not just that young radicals have this romantic idealism. Hayek would say that many people who see themselves as social scientists come up with these elaborate--they are men of system. They are like Smith's men of system. They come up with these elaborate systems that they want to be implemented in every detail in social structures. And, those are wrong, too. It's not just the idealistic, romantic young people.

Russ Roberts: Tear everything down, start from scratch. He said, 'We don't need to start from scratch. I have a better system [crosstalk 00:32:17].'

Michael Munger: I understand this. And, we do not understand institutions very well. And, that's a very frustrating argument to make for people who say, 'The system is bad,'--and it is--and you don't know why that fence is there. And: 'If you take it down, things are going to be worse. If you ask me why, I don't know why. I'm just pretty confident that they will be because we're really bad at this.' And, if you look over history over and over again, we've been really bad at this.

Russ Roberts: Yeah. It's not so much that I don't know so I don't care, and we're going to leave it alone. It's that my default: the burden of proof has to be on you, who wants to tear it down.

Michael Munger: Yeah. It's: I care very much.

Russ Roberts: Yeah.

Michael Munger: I care very much. But, if you don't know, think something really bad might very well happen, because the consequence of tinkering with all of this--it's a complex system. It's a complex adaptive system. And, over time, there has been an evolutionary process that has selected the survival of this constitutional system. So, we might ask, 'Is the U.S. Constitution a good constitution?' U.S. Constitution is something that is revered by Americans as if it were a sacred text. And, people hand it out as if it were the revealed truth of God. And, many people think of the U.S. Constitution as being really the primary basis of what they see as American success over the last 250 years.

I think it's fair to ask whether the American Constitution is--and Buchanan thought, in The Calculus of Consent, Buchanan and Tullock, they thought rewriting what James Madison had said in his journal. So, they read Madison's journal, they looked at the Federalist Papers, and they said, 'Let give a more reason-based justification and explanation of the way that the U.S. Constitution was written.'

By 1980, Buchanan at least--and I'm not sure Tullock ever really believed that--but Buchanan had abandoned that view for a much more nuanced view that the American Constitution was interesting; it was probably important as a focal point; but it was not causal. So, it is nice to have words that we can organize around.

So, it was really important that the Declaration of Independence said, 'All men are created equal.' That's a really important thing to say, even if it's not true.

And, you made this point a number of times during the episode about the Magna Carta: that of course the Magna Carta wasn't true. It was gone in a few weeks. It was redone a bunch of times. But, it really mattered that there was something on a piece of paper that everybody had agreed to that said: 'Here are our rules. This, we believe,' because you can use it as a bludgeon to say, 'Well, wait. That's not what you said.'


Russ Roberts: And, I think--just to broaden that discussion a little bit, although it's pretty broad right now--I've become increasingly interested as I get older in this idea of a common or shared vocabulary, because language is fundamentally imperfect. It's very hard to communicate between two human beings with brains and two different bodies. And, it gets harder as the number of people increases. So, having a shared vocabulary, even if we're not a hundred percent in agreement over what the words mean, even though we concede there are things called suitcase words, where people are stuffing things in that are not necessarily what you'd stuff in, and you're stuffing things in that I'm stuffing in different things in my suitcase using that word--say, 'equal, all men,' right? You might think that means just males. You might think it means just white males. Other people might think it meant--'Oh, well, it doesn't mean--it says men.'

So, there's going to be disagreement. But, certainly, that phrase, 'All men are created equal,' was a bludgeon that was used to fight slavery, even though it couldn't win the day. It should have won the day logically on the first day of the country--

Michael Munger: Yeah--

Russ Roberts: And, again, I would reference the fabulous episode that you did on racism and slavery that we did long time ago--I think a lot of people name it one of their favorite, top five, maybe, all-time favorite episodes--of how people rationalized slavery. And, they could. They were really good at it, because they had a self-interest in doing so, and they managed to convince themselves it was actually even good for the slaves.

Michael Munger: Yeah, absolutely.

Russ Roberts: And that's despicable. It's despicable.

But, the point is that, that phrase, 'All men are created equal,' which had, on the surface, no impact, because obviously it was not enforced--slavery existed from the first instant of the country--the existence of that phrase was a constant drumbeat that eventually wore down, like drops on a rock, to some extent the defense of slavery.

Michael Munger: Yeah. It was a useful tool. It wasn't the only thing. But, when you say it was the elimination of slavery, it's actually worse than that.

So, Frederick Douglass would often talk about the fact, 'Look, this is your Declaration of Independence,' but he was talking about this in 1875, 1878. So, even after the Civil War--

Russ Roberts: Of course. Of course.

Michael Munger: Blacks were not--it was 1965, arguably, before even the beginnings of desegregation started to have any impact. Which is astonishing.

So, you can say those words mean nothing. That's not true. We didn't win, but it was a pressure point. It was a means by which you could say, 'You are being a hypocrite. You say that you believe this, and you clearly don't.'

So, constitutions could certainly matter for that reason: that it is a shared vocabulary. It's something we've all said we believe in. And, then if you act in ways that are not consistent with that, it's at least a problem that you have to work around.


Russ Roberts: But, the truth is, is that there is more value on--at least you can make a case there's more value for the U.S. Constitution than just it was a shared vocabulary. I've argued in here that the only thing that's left of the Constitution are the First Amendment and the Second Amendment. And, most people don't agree that both matter. They just pick the one they like. And, some people like one and some people like the other one, but very few like both.

And, other than that, very little constrains legislation in the United States. That's my sort of cheap shot, fake-political-scientist view of the Constitution. Do you agree with that? My argument would be, by the way, for those who are thinking, 'What are you talking about? There's a whole bunch of other stuff there,' and the answer to that is, 'Yeah, they always find a way to talk themselves out of it if they need to. And, if they don't [crosstalk 00:38:39]'--

Michael Munger: I think they don't always, because Mike Pence wanted to talk his way out of it and he didn't. He said, 'You know, I can't do that. I cannot declare Donald Trump the President.' And, he may very well have wanted--there was a lot of pressure on him to do that.

So, I think having these rules, particularly for conservatives that say they care about the Constitution, it can matter a lot on process. It's rules about rules.

Russ Roberts: And, it might only matter once every four years, but that is a really important time, that once. And so, true--you're saying: Well, true day-to-day legislation, a lot of it gets through that in 1940 or 1880 would have been called unconstitutional. Now, they've figured out a way to justify it. And so, it's anything goes. And, we're really in some unconstitutional world with most legislation. You're saying, 'That may be true, but there are times when it is effectively binding and it does constrain,' and that's a great point.

Michael Munger: Because it is rules about rules, it set up some kind of structure. You can't just do it any old way that you want.

So, one of the reasons that we're doing this in this podcast was that I had said to you in an email that I've gotten a surprising number of requests recently, 'What do you think about this, Munger? Shouldn't the United States have a new Constitutional Convention? Shouldn't we write a new Constitutional Convention?' And, I pointed out and you--.

Russ Roberts: Because we're so smart now. We're smarter than those people a hundred years ago--

Michael Munger: It's what you just said. It's all gone. No, it's all gone.

Russ Roberts: Oh, that's why.

Michael Munger: You just said, 'It's all gone.' We need to start a new one because this time it will be binding. It's always, 'This time will be different.' So, you've actually just made the argument: First and Second, nobody believes in both, but most of the rest of it is gone. We need to actually have a discussion and an agreement on a new Constitution.

And, I think--

Russ Roberts: What do you say?

Michael Munger: That's a terrible idea. There's a lot of terrible ideas. That's one of the terrible-est ideas.

Russ Roberts: Why?

Michael Munger: Well, I think it's also interesting to look at the fact that Chile in South America is actually going through this exercise now to write a Constitution. So, it is a--

Russ Roberts: They have one.

Michael Munger: They have one and it was imposed--

Russ Roberts: It's been reformed--

Michael Munger: It was imposed in 1980 at Bayonet Point by the non-democratic regime. And, it has been reformed, but a lot of the basic structure exists. They're not objecting to it because it doesn't work. They're objecting to it because it does. And, they think that if they start over, they can do better.

So, this idea that we're going to have a Constitution and it's going to matter is an important question in Political Science at a very fundamental level.

So, one of my favorite political theorists who disagreed violently with James Buchanan, but was actually a great friend of his--and I should say the reason that people have heard of him at all is Liberty Fund published his books and James Buchanan invited him to give a bunch of talks--and it was the Hungarian-French political theorist Anthony de Jasay.

And, de Jasay, in his book The State and a number of his later books, raised an objection to constitutions that I actually find perplexing. I basically just straightforwardly believe constitutions are important. Words mean what they say they mean. We'll have courts to interpret them. So, I'm a very traditional kind of American, ninth-grade-civics, 'Here's the Constitution. Isn't it great?'

I don't think that's right. And, de Jasay said: There's actually only two things that can be true. One is that everybody believes in the principles that are embodied in the Constitution--in which case it is unnecessary--or, no one believes in them or not many people believe them--in which case it is ineffective.

And, that means that the Constitution might be a way that we could sort of support the fact that everybody believes in the Constitution. And, he thinks that was largely true in the United States in the 19th century. But, it has not been true in the United States since at least the 1930s and the New Deal; and that the Constitution is largely epiphenomenal--which means that it doesn't actually matter. It's something that exists at a level above things that matter. And, that is the attitudes that people have towards the Constitution. If no one believes in the Constitution, then it means we'll always find some kind of workaround.

Russ Roberts: Do you agree with de Jasay in that example?

Michael Munger: I don't think--

Russ Roberts: That there are only two things?

Michael Munger: I don't think that he's right. I no longer believe that--

Russ Roberts: I don't either--

Michael Munger: believe that he's entirely wrong.

Russ Roberts: Well, he's onto something. And it's a great point.

Michael Munger: Yes.

Russ Roberts: And, it's a bit of a reductio ad absurdum, of course.

Michael Munger: And, he always would do that. If you challenged him, he would laugh and say, 'Well, of course. Yes. That's tendentious. That's an exaggeration. But, I have to make the point that way in order to get you to understand it, because you are not very smart.'

Russ Roberts: He's right there.

Michael Munger: Yeah, he was absolutely right [crosstalk 00:43:42]--

Russ Roberts: He was talking to you, Mike.

Michael Munger: Yeah.

Russ Roberts: But, he could even be right about me [crosstalk 00:43:43].

Michael Munger: He was talking to me personally. That's right.

Russ Roberts: Oh, okay.


Russ Roberts: But, it seems to me that--you know, I'm a super-uneducated student of Charles Peirce, and I've told listeners before that my understanding of Peirce was channeled through my philosophy professor Dick Smyth, who I adored as a professor. He was incredibly intellectually provocative. And, he was a pragmatist, and he was interested in Peirce, the pragmatist. And, Smyth--and Peirce, as far as I understand it through Smyth--argued that, yeah, you think you're using reason, but you really aren't. And, if you're not careful, you'll follow your self-interest, your heart, and you'll convince yourself after the fact that you've been doing something that was actually quite rational.

This is in Pascal, 'The heart has its reasons that reason does not know.'

And, for that reason, rules are often better than discretion. Even though rules don't allow you to be flexible, discretion allows you to continually convince yourself of things that look good that actually aren't.

And so, this idea that somehow, because we have doubts or acknowledge imperfections in the Constitution means that we'll always find a workaround, is not quite true. As you would point out, I think: we don't always find a workaround. The Pence election example is one of them. But, more importantly, the nature of human beings, especially acting in groups--an insight that I think you understand better than almost anyone, with your son you wrote that wonderful book. Title? Choosing in Groups.

Michael Munger: Choosing in Groups--

Russ Roberts: Yeah. Phew. Got it right. That, when you do that--imperfect knowledge, the concentration of power in the hands of decision makers--rules, even in perfect ones, are going to often be dramatically better, not on any one decision, but over the long haul. And, that's the civilization point, I think, that conservativism, I think, is fundamentally arguing. What do you think of that?

Michael Munger: Well, to be fair, my presentation on de Jasay was a caricature. He didn't say rules didn't matter. Rules matter a lot. His claim was that Americans should not look at the special godlike genius of a few men in the summer of 1789 and say, 'That's it. That's the reason that the United States is different from other countries.'

So, there was a set of--

Russ Roberts: Keep going--

Michael Munger: There was a set of rules that they came up with, and some of them were conjectural. Remember that this was our Second Constitution. And so, the Articles of Confederation were so bad that they created a large--what political scientists call a win-set. So, there's many things that were better than the Articles of Confederation: even a fairly radical thing, like what Hamilton wanted, a concentration of Federal power. We got lucky that the Articles of Confederation were so bad that it actually created an enormous win-set.

And, then we picked one of many possible points that were better than the Articles of Confederation. It was contingent. A bunch of other things could have happened. So, we got a little bit lucky there that the Articles of Confederation were bad enough that we got this Constitution instead.

It specified a set of rules. It's better to have rules than to have chaos. That's true. That's fine. But, to say that the principles are in the Constitution are what created the American genius, he thinks is wrong. What happened was--

Russ Roberts: He, de Jasay--

Michael Munger: He, de Jasay. What happened was that we had Federalism, which means that you have competition among states, and you could escape. So, his central concept is exit. If you can exit--and this is true from almost any contract: my ability to coerce you is going to be limited sharply by your viable ability to exit. And, the existence of the American frontier, he thought, was more important than the American Constitution. And, the combination of the American frontier and the American Constitution, that's what made America great.

Russ Roberts: I should mention that de Jasay was an essayist for the Library of Economics and Liberty for a long time. We have many of his essays relating to these issues. They're very accessible. Some of them are quite entertaining. Almost all of them are thought provoking. And, one of them, which I think is "The State Owns Your Dog"--is that the title? ["Your Dog Owns Your House," by Anthony de Jasay--Econlib Ed.]

Michael Munger: Yeah. That is--

Russ Roberts: That's one of my favorite essays ever.

Michael Munger: This is a Bastiat-quality essay.

Russ Roberts: Yeah. It's spectacular.

But, even though I made fun of him a minute ago, I have to concede that his, 'There are two types of people' example is really my point as a reductio ad absurdum, because it says: Oh, you don't like the way things are in the United States because you think we've failed to uphold the Constitution. Oh, therefore we need a tougher constitution--when in fact, what we really need to do is convince the people who really don't care about the Constitution, that they should care about some of the outcomes or some of the rules that are in place. And, if you think you're going to do it by making the world more constitutional, you're living in a fantasy world. And, I think he's right.

Michael Munger: We'll have a new piece of paper that no one believes in. That will solve everything. Absolutely. That's more or less what, verbatim, if he'd had a drink or two, that's more or less exactly--'We'll have a new piece of paper no one believes in, and that's going to solve your problem. Apparently, you didn't go to school.'

Russ Roberts: Exactly. Or you slept through the important parts.

Michael Munger: Yeah.


Russ Roberts: So, when you get called and asked, 'Should we have a Constitutional Convention?' you say, 'That's a pipe dream. You're living in a fantasy world.'

Michael Munger: And, I try to give three reasons. One is: The way we got the first Constitution was that we had Articles of Confederation, which were terrible--

Russ Roberts: A point you just made--

Michael Munger: Our Constitution has problems, but it's not so terrible. It's not clear that the set of things that are better are going to be enough better to take the risks.

Second, I am skeptical that starting over is going to work again in the sense that we're going to come together around something, because it takes a long time to create a consensus. So, the difficulty is that there had been an Annapolis Convention in which the delegates were supposed to come up with ways of solving commercial problems about tariffs and regulations and interstate commerce. And so, they went to Philadelphia to have a meeting about solving those problems. And, they said, 'You know, let's write a constitution.' So, they closed all the windows--even though it was really hot--because the Articles of Confederation said, 'You need 13 out of 13. You need Wicksellian, unanimous consent.'

And this bunch--some states didn't even send delegates. This bunch of guys said, 'I'll tell you what. We need nine out 13.' It's unconstitutional! The Constitution is literally unconstitutional because it was ratified using a nine-out-of-13 rule when the existing Constitution--the Articles of Confederation--required 13 out of 13.

So, that will happen again. If you say, 'You guys go off by yourselves and make up a bunch of rules,' they're going to do it, but they're not going to use the existing rules as the status quo that bind their decisions. They're just going to come up with a bunch of rules. We got so lucky.

The third thing I think is that people are unlikely to be able to agree. And, if you put everything up for grabs, you create what Public Choice theorists call a rent-seeking contest. If everything is constantly up for grabs--in other words, if you've ever played basketball with a bunch of law professors, or I assume, rabbis: people who argue for a living--you don't play much basketball. You spend a lot of time discussing deep principles of Old Testament theology, because these are really important. So, if you--

Russ Roberts: Wait. Wait. Are you talking about things like: Do you play to 11 or do you play to 21? What's a foul? What do you mean by--

Michael Munger: What is the nature of--

Russ Roberts: What are they going to argue about?

Michael Munger: Yeah. What is the nature of a foul? Does it require intent? I have spent 10 minutes on a basketball court listening to two law professors arguing whether a foul requires intent. It's so fantastic. But, I don't want to do it again.

Russ Roberts: Somehow Monty Python forgot to use that skit, but he could have. Yeah.

Michael Munger: But, I am entirely serious. If you say, 'Okay, everything's up for grabs. Go argue about it,' we will. And, a lot of powerful interests will try to exert, through back channels, influence on the way that these rules are created.

So, twice now on EconTalks--and we'll try not to bring this up again--but David Schmidtz's example of Desert Town, where you have a bunch of people, and at every intersection you have to get out and argue who gets to go through first. Now, it's true that it's unjust if you get to go through before I do when I have a more urgent errand. But, it's better--and this is your earlier rules point--a stoplight means the longest I have to wait is two minutes. Getting out and arguing about all the rules means that the minimum I have to wait is seven minutes.

And so, we're clearly all better off having a stoplight, which is unfair, because sometimes you are going to sit and people with less urgent errands are going to go first. But, it's still better to have a known, fair, arbitrary rule that we all accept. Now, it has to be true we all accept it. If I think this is unfair and I run the stoplight, that's going to cause accidents in a way the stop-and-argue thing won't. So, just having the set of rules that we all know as a focal point to coordinate our conflicting plans and purposes around makes an enormous difference, provided we all accept it.

So, in the book Choosing in Groups, I define politics in a way that I think is unusual, but that I would defend. Politics is a process of deciding on rules, such that even the losers accept them as legitimate.

So, if even the losers accept this as legitimate, we have a way of deciding things. We can organize society that way. But, when the losers do not accept it as legitimate, then politics breaks down into anarchy and revolution. And, constitutions enable politics. The reasons we want constitutions is to enable politics.


Russ Roberts: That's just fabulous. I just want to invoke the memory of my father. And, I think he really did believe that stop signs and stoplights were for other people. They did need it, but not him.

Michael Munger: Sure.

Russ Roberts: He always felt he was in more of a legitimate hurry than other people. I don't think he ever had an accident at a stoplight.

Michael Munger: But, did he run stoplights?

Russ Roberts: No. But, if he got tired of waiting, he would explain to his children, 'This one must be broken.' But, there were no cars coming. He was a red light. There were no cars in sight.

Michael Munger: That's running the stoplight.

Russ Roberts: Absolutely.

Michael Munger: He would stop and then run it.

Russ Roberts: Yeah, of course. He wouldn't run through it, which would be dangerous. But, he'd stop. And, if enough time passed and he felt it was justified for his own personal needs--

Michael Munger: And, there's no cars coming--

Russ Roberts: He would invoke the ex post narrative. Obviously, the stoplight is malfunctioning. It's not changing.

Michael Munger: Yeah.

Russ Roberts: Which is really actually a deep Einsteinian kind of thing, how long that should take.

Michael Munger: Yeah.

Russ Roberts: Could be a millisecond in his mind, depending on the urgency of the errand.

Michael Munger: Well, but it's a relativistic observation. Stop lights take much longer if I'm waiting than if you're waiting.

Russ Roberts: Yeah. It's actually kind of profound.

Michael Munger: Yeah.

Russ Roberts: But, anyway, I think that insight--I wish my dad had known that; I don't think he did--about politics, because that insight--he probably understood it, that it was good for him to stay at the light until it changed. But, if he saw it was safe, he felt it was okay.

As opposed to other people, and I'm told--I think I've used this before; I apologize--I'm told that in Sweden, if it's two in the morning and there's no cars coming in either direction, people don't cross by foot against the light. Not just no cars coming either: there's no headlights within 10 miles, that people--and I'm sure this is true in many cultures.

By the way, here in Israel, to my surprise, there's no jaywalking--very little jaywalking. And, I think most of the jaywalking you might observe are American immigrants--people like myself who've moved here. And, I generally do not. I was going to say I never jaywalk. That would be a lie. I try not to jaywalk because traffic patterns here are not quite the same as the United States. Cars come from unexpected directions, over your shoulder, and therefore I have the default rule: Don't jaywalk. But, I think the other reason: it's a big fine here.

Michael Munger: Yeah.

Russ Roberts: For all kinds of interesting reasons. But, there are cultures where people keep the rules, and I'm sure would explain to you that if people start jaywalking, the next thing you know, we're going to have anarchy and chaos and the world will be very bad. And, they're on to something.

Michael Munger: As you remember in one of my German stories, in Munich, I crossed against the light and a little old lady started hitting me with her umbrella, screaming, 'Kindermorder, kindermorder.' You are a child murderer if the children see you crossing against--I was a lot bigger than she was, but she was beating me with her umbrella because she was so upset that someone would cross against--there were no cars coming.

Russ Roberts: Were there children around?

Michael Munger: Well, I should mention--I did mention earlier--there was a group of children. I pushed my way through in order to cross. They were in the way. The children were waiting, and she was the school teacher apparently that was--

Russ Roberts: I got it.

Michael Munger: But, she was an uber oma--a small, very angry woman. And, I pushed my way through, looked both ways, and crossed. I was late. I mean: I've got to go. Just like your dad: 'This rule doesn't apply to me. Yeah, the children should wait.' And, she went nuts.

Russ Roberts: And, she was on to something.

Michael Munger: I came back, I tried to apologize, saying she was right. I was rubbing my elbow. It was a little sore. I could have taken her, but my response was to be ashamed. I tried to make myself physically smaller. And, my face is turning red even now and I'm sweating thinking about it. We have an emotional response to being called out for violating the rules that make us--

Russ Roberts: the norms--

Michael Munger: rule-following punishers. We are emotionally--she did not reason, 'I am going to go attack 110 kilogram man. That's a bad idea.' What happened was her body was suffused with a cocktail of chemicals that said, 'Attack. He's violating the rules.' And so, she acted on that irrational impulse. And so, it's irrational in--I should say non-rational.

Russ Roberts: Yeah.

Michael Munger: So, Adam Smith, in talking about the sense of propriety, human beings have a constitution, also. And, that is a sense that we are constituted by our creator, and whatever process you want to say that is, to have these kind of responses when we see a violation of the social norms, whatever they are. And, it might be that suppose this elderly woman was an old Southern woman in 1940 who saw a Black person walk into a bar. She might have had the same reaction. So, the content of the action is socially constructed. But, biologically, we are constituted to enforce the rules. And so, yes, in many countries, the very foundation of the rules is the simplest ones. It's like the broken windows in New York. If you are going to jaywalk, we're just inches away from theft.


Russ Roberts: Well, it's a kind of interesting moment in American history right now. I'm not going to go into it, but I do think, as I've said, many times, the veneer of civilization is thin. And, I think it's not nearly as thick as people think it is and I think are playing with fire in certain dimensions.

But, I have to say, I don't remember that story. I remember the shopping-cart story, and I think that also was in Munich. And, it's a beautiful example, both of them, by the way, of when you change countries--as I have--there are different norms and things that you think of as no big deal, the people around you are horrified. Things that you think of as horrifying, they think are no big deal. And, it takes a while to figure out how that works and what they are. And, that's just interesting in and of itself.

But, I have to say that I've been here five months, and I've already heard a person tell me that they were called a murderer here in Israel for jaywalking. And, in this case, it was children. I don't think Hebrew has a Germanic noun mingling like kindermurder or whatever you--the phrase was--

Michael Munger: Kindermorder. Yeah.

Russ Roberts: Yeah. Kindermorder. But, the person, they said, 'Murderer,' and the person went, 'What are you talking about?' And, it was a woman again. I think she probably was little and old. She said, 'You're going to kill the children'--

Michael Munger: Yes, yes--

Russ Roberts: 'Because they're going to learn from you.' It's a fairly fascinating--it's good comic relief there about the elbow, but I think there's a deep insight there about how norms propagate and how important they are and how the young learn norms from the people older than them, inevitably. They'll also learn from their peers, by the way. They have their own world of norms, of course.

But, it is interesting that--you're telling that story, I'm thinking, 'I've heard that. Oh yeah. I heard it here, but I didn't hear it with you.'

Michael Munger: That's amazing.

Russ Roberts: I've heard it in Israel. And--

Michael Munger: Yeah.

Russ Roberts: I'm sure other listeners have been either called murderers or have called people murderers. So, please chime in if you have similar stories in your personal life.


Russ Roberts: I'd just like to close and give the example of a country like Israel and, to some extent, England. They don't have constitutions. Now, in Israel, there's a big debate about whether we should write one. And, we have a Supreme Court here. They make rulings all the time, somehow, without a constitution. I don't know what implicit rules they use, but they don't have any, I don't think, explicit rules that they're pretending to conform to a constitutional order.

What do you think about countries that don't have one? And, to what extent does England not have one?

Michael Munger: Countries that don't have constitutions tend to have an expanded interpretive tradition. And so, you have a set of rules. It's basically Torah and Midrash. So, the Midrashim are a bunch of writings, rabbinical writings over time, to expand, to apply. So, we use analogical reasoning to understand the particular circumstances in which some case, some set effects will be adjudicated in a particular way.

And, the advantage of that--there was, Louis XIV, I think I heard about it on this show--Louis XIV would sit under a tree and make rulings about--if two people could show up and they could argue, then Louis XIV would wisely decide, 'You, or you, are right.' But, that has no precedential value.

What you'd like to have is no cases come before the court because everything is settled. And, the court only hears the things where the adjudication is unsettled. It's not clear which precedent to apply. So, you can do that with a body of precedence.

And so, what England has because of the common law--and I'd be interested to know, I just don't know what Israel has--what is it that are the set of--it doesn't have to be laws. Forgive me. It doesn't have to be legislation. It doesn't have to be constitutional. It could be laws in the Hayekian sense, where we understand that these are our rules.

Russ Roberts: Expectations about what is custom.

Michael Munger: Yeah.

Russ Roberts: What are the norms?

Michael Munger: Yeah.

Russ Roberts: How we behave with each other.

Michael Munger: And so, in England, that's actually very clear, because there's a bunch of Midrash. There's a bunch of judge-made law that tells you, 'These are what our rules are.' And so, you can look up the decisions that judges have made in what you think are similar fact sets.

The question about deciding constitution is difficult, because then you're arguing about rules about rules. And so, England, what's fascinating--and maybe my top-five favorite EconTalk of all time was the one on the Magna Carta. So, the story of the writing of the Magna Carta, the evolution of the Magna Carta, was--what I found so interesting about that was that it ended up being a set of precedence, because Edward Cook in 1680--hundreds of years later--said, 'The Magna Carta will have no sovereign.' Meaning that the rule of law matters more than the rule of persons.

Now, that's actually not true. The King could do pretty much anything that the King wanted. But, the idea that there is a rule of law, there's a set of rules that we all know, and these will be applied regardless of the privileged position of the person in the society, that to me is what is the small-'c' constitution that both England and I assume Israel have.

So, to the extent that--and this is de Jasay's point--if there are a set of values that are widely enough shared, now we're in a situation of politics, where even the losers accept it as being legitimate. So, that's the reason that England does have a constitution. I can prove it, because they have politics.

Russ Roberts: My guest today has been Michael Munger. Mike, thanks for being part of EconTalk.

Michael Munger: It was a great pleasure. Thanks, Russ.