Tuesday, February 26, 2013

Meta-EE and the Constitution Part 6: Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
There's a puzzle confronting anyone set with the task of crafting ex ante rules: how much discretion ought we grant? Credible rules bind capricious elites, allowing constituents to better plan. Rules civilize. In the language of the New Institutional Economics, rules provide expropriable quasi-rents: people can be more productive thanks to constraints on the tendencies of the political class to meddle. Discretion in the hands of the wise, the temperate can lend itself to a tolerable administration of justice. Discretion in the hands of fools is the fountain of tyranny. Which of these ought rules restrain?

"Excessive" is a weasel word. Is it "excessive" to condemn a man to twenty years in prison for possession thanks to minimum sentencing legislation? Is it "excessive" to throw a man into jail for close to half a year for the "crime" of notifying potential jurors of their right of jury nullification? Is it cruel or unusual for police to shoot family pets while conducting drug raids?

It's fair to interpret Amendment VIII as a check against a runaway judiciary, but the moral and legal sentiments behind it are meant to lash the whole of the state to the mast. The power to punish, to confiscate, to run amok is seductive. Employed recklessly, discretion scorches the forest of euvoluntary exchange. Only you can prevent forest fires.

I suppose the question centers on the sort of person we'd expect to take the reins of political power. Does political service attract the wisest, most judicious among us? Should a constitutional convention enshackle a bevvy of philosopher kings? Or do we live in a second-best world, where knaves seek authority over men? In a world where the moral authority is not necessarily vested in the offices of the state, will encalming the sword hand of Lady Justice increase the scope of euvoluntary exchange?

Speaking of USFS mascots, I haven't seen feather nor beak of Woodsy the Owl for ages. I wonder if that campaign is still alive.

1 comment:

  1. I protested that being grounded was excessive for breaking the rules the way I did. My mother responded that I was being punished for all the times I wasn't caught taking cookies from the jar.

    Since "excessive" refers to some standard, you have to wonder what the standard is. Let's allow for the moment that 20 years for pot is the precise social optimum. Anything more or less results in welfare loss. Certainly this guy caught with pot faces a harsh sentence like I did for taking a cookie, but he's paying the price for all those other guys who have pot and didn't get caught.

    We could argue that 20 years' punishment is excessive for his breach. Our ability to identify socially optimal policy notwithstanding, is it relevant that this degree of punishment maximizes social welfare?

    Excessive may be a weasel word, but worse is using it without identifying what standard you are using to determine excess.


Do you have suggestions on where we could find more examples of this phenomenon?