Friday, May 24, 2013

Meta-EE and the Constitution Part 14: Eighteenth Amendment

I admit to some trepidation at covering the 18th amendment.
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Instead of rehashing the moral arguments for and against the temperance movement or revisiting Yandle's Bootleggers and Baptists story, I'll make more of a Higgsian point here: before the advent of the Progressive Era, the legislature acknowledged that it lacked the authority to ban consumer products.

Congress needed a constitutional amendment to override consumer sovereignty.

Jeez. Talk about a ratchet effect. Look at how easily the median voter capitalized that idea. The only people who bat eyelids at the mere existence of the CPSC these days are crank libertarians, and even then it's pretty far from the first thing on their radar. That is an amazing intellectual and moral coup for political elites.

This amendment helped make it so that far fewer of the exchanges on the euvoluntary spectrum (indeed, perhaps only those that are firmly within the 100% euvoluntary circle) are given a hall pass by the Second Estate.

Now, we're still faced with a joint determination problem in the analysis. It could be that there was some underlying social forces that both legitimized government intrusion and wrote the blockquote above. Consider the possibility that the indifferent mass in the middle may have supported just this one little intrusion, without ever expecting the more generic notion to mentally metastasize. Consider how silly it would seem for a Senator to propose an amendment to ban marijuana. Consider that prior to 1920 or so, that's exactly what it would have taken.

And this is the one area where I part from some of my intellectual fellow-travelers. I do not see constitutions as being particularly binding once the payoffs start accumulating. Social capitalization matters.

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