Meta EE and the Constitution Part 1: First Amendment

James Buchanan argues clearly and convincingly for the importance of constitutions to bind political elites. If you haven't already done so, I urge you to read Buchanan and Tullock's watershed The Calculus of Consent (available online here from the Library of Economics and Liberty). If you find the entirety of the work to be a little on the daunting side, don't fret. Chapter six is the kernel of the book and it contains the following quote that captures the idea of meta-euvoluntarity I've been peddling the past few months:

The individual will, of course, recognize that any restriction on his private freedom of action will, in certain cases, impose costs on him. Each individual will in the course of time, if allowed unrestricted freedom within the limits of the legal structure, impose certain costs on other parties; and, insofar as his own position taken alone is concerned, he will prefer to remain perfectly free to impose costs on others when he desires. On the other hand, he will recognize also that he will, on many occasions, be affected negatively by the actions of others over whom he can exert no direct control and from whom he cannot legitimately demand compensation. Knowing that he will more often be in the second situation than in the first, the fully rational individual will explore the possibility of contractual arrangements designed to protect him from external cost along with constitutional processes and provisions that may remove actions from the realm of private decision and place them within the realm of public choice.

Absent binding constraints, people will, according to Buchanan and Tullock (and Hobbes and Rousseau) revert to predation. If the person who reverts to predation happens to wield political authority, the extent of the costs imposed could be great, indeed. Constitutions muzzle predatory elites.

But do they really? I've gone back a forth a few times with GMU Professors Boettke, Leeson and Coyne on this topic as well as many of my colleagues on campus and I can't find a good way to refute the claim that elites will adhere to constitutional constraints as long as they remain expedient, but for no longer. If constitutional provisions retain binding power, it seems likely to me that credit ought be due to their meta-euvoluntaric outcomes.

The language of the First Amendment is pretty simple:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As you can plainly see, the language singles out Congress. "Congress shall make no law..." This is a terribly curious provision in a democracy. Democracy benefits most when voters consume high-quality information. Are any of my readers willing to defend an assertion that journalism wrought from the fights between Pulitzer and Hearst could be characterized as "high quality"? Does MTV contribute material that forwards the Republic? You could reasonably claim that much of the content found in the press can be accurately described as political or cultural pollution. It reinforces false beliefs, confirms biases, and permits unscrupulous elites to indulge in the worst kind of political kayfabe. Further, to the extent that popular entertainment or news coverage contributes to the frequency of rare, high-profile events like massacre shootings (and I suspect that the partial derivative is pretty small, but that's an unsettled empirical matter), a free press may regularly and routinely generate ex post regret.

The counterfactual to this is intolerable. State-controlled media is the shieldmaiden of tyranny and totalitarianism. What better way to spread political pollution than to grant political elites direct control over the dissemination of their own lies, distortions and partial truths? The First Amendment is meta-euvoluntary in the sense that it refuses to sacrifice a durable contract with free constituents for the fleeting comfort of selective censorship.

Is speech euvoluntary? Nope. Is it meta-euvoluntary? You bet your ass it is. Pardon my speech.