Meta-EE and the Constitution Part 17: Twenty-First Amendment

Have you ever bent a piece of metal and then bent it back to its original position? Did you notice that the second operation was easier than the first? That's because the act of bending the material weakened it. 

The Constitution is a document, a collection of ideas. The only structural integrity it boasts exists in the minds of its constituents. Fatigue enters not by broken valence bonds, but by inattentiveness to purpose. 

As we've noted so far in this series, the elements of the Constitution suggest constraints on the US sovereign authority. If you agree with the positive claim that the state is the entity in society that [quasi]-legitimately employs violence and share my normative opinion that dominion is best in very small if not entirely absent doses, you might also agree that the Constitution is to be cautionary, not aspirational. The struggle between virtue and vice is waged in the breast, not in Parliamentary chambers and certainly not in a text meant to circumscribe the bounds of state authority.

So does the following broaden the scope of voluntary trades that folks can make?

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

In a direct sense, yes. It undoes damage wrought under the aegis of the 18th. Or at least aims to undo some of that damage. But there's some damage that can't be undone. You can unbend that hinge pin, but it'll never be as strong as it was before the insult to its integrity. Likewise, the political economy lesson taken away from Prohibition was muddled, unclear. It doesn't seem generalizable, since we've still got "narcotics" prohibition (the word "narcotic" itself is a bit of linguistic subterfuge). Nor, it seems, have we learned that the Supreme Law of the Land is meant to yoke government, not citizens. Instead, I think what we've got is a particularly virulent strain of regime uncertainty left over.

All the progressive-era amendments were a severe departure from the notion of a limited central government. When those limits are tossed out, regardless of the reasons, the rule of men crowds out the rule of law. Faulty though the rule of law might be on occasion, it is staid, predictable, impartial. Rule by men, in contrast, is fickle, whimsical, partisan. In Kahneman's terms (my interpretation, anyway), it is the cool, rational driver that tends the rule of law and the intemperate, irrational elephant that decides the rule of men. If there are euvoluntary exchanges that have to be planned over years or decades, the decline of a consistent, predictable rule of law serves to erode the probability that the venture will be successful. Regime uncertainty withers entrepreneurial talent, which impoverishes and immiserates generations. There are much better ways to correct errors in the corpus of law than to unmoor its stays.

So, 21st meta-EE or no? Visibly yes, but it's tough to have read Bastiat, Buchanan, and Higgs and yet still take a long view that thinks so.