Scholarly article on topic 'Precautionary Principles in Constitutional Law'

Precautionary Principles in Constitutional Law Academic research paper on "Law"

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Academic research paper on topic "Precautionary Principles in Constitutional Law"


Adrian Vermeule1


This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a "mature position" that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.

Disciplines such as decision theory and game theory, welfare economics, political science, and psychology have all contributed to a well-structured set of insights that go under the heading of "risk analysis". In what follows, I will begin to arbitrage the insights of risk analysis into constitutional law and theory. Whereas ordinary risk regulation usually addresses "first-order risks" arising from the natural environment, the market, or technology, I will understand constitutions as devices for regulating "second-order risks" that arise from the allocation of power across institutions; I will call these "political" risks.2 On this

1 John H. Watson Professor of Law, Harvard Law School. Email: For helpful comments, thanks to Jacob Levy, Jonathan Nash, John Patty, Mark Ramseyer, Andrew Rehfeld, Matthew Stephenson, Mark Tushnet, participants at a political theory workshop at Washington University St. Louis, and workshop participants at Emory Law School. Thanks also to Jonathan Wiener for helpful tutoring and references, and to Jonathan Murray for helpful research assistance.

2 See Vermeule (2010).

© The Author 2012. Published by Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School.

This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (, which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

doi:10.1093/jla/las003 Advance Access published on May 22, 2012

approach, constitutions can be justified and criticized as (among other things) more or less successful devices for managing political risks such as self-dealing by officials, legislative or executive tyranny, oppression by majorities, and various forms of biased adjudication.

By way of down payment on this project, I will begin with an analysis of precautionary principles in constitutional law and theory.3 In the regulation of environmental, health and safety risks, "precautionary principles" state, in their most stringent form, that new technologies and policies should be rejected unless and until they can be shown to be safe.4 Such principles come in many shapes and sizes, and with varying degrees of strength, but the common theme is to place the burden of uncertainty on proponents of potentially unsafe technologies and policies. Critics of precautionary principles urge that the status quo itself carries risks, either on the very same margins that concern the advocates of such principles or else on different margins; more generally, the costs of such principles may outweigh the benefits.

Although this debate is a relatively new one in the theory of regulation, it is a venerable one in constitutional law, or so I will claim in Section 1. At the wholesale level, many theorists defend a master principle according to which constitutions should be designed to take precautions against political risks. At the retail level, many constitutional rules and structures have been justified as §

precautions against the risk of abuse of power by incumbent officials or other constitutional actors, the risk of tyrannous majorities, or other political pathologies.

Section 2 examines criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. As we will see, these criticisms of precautionary constitutionalism parallel the criticisms of precautionary principles in the theory of regulation. Critics of precautionary

3 These are principles in the constitution that are designed, or at least justified, with a view to the regulation of political risks. They are to be distinguished from precautionary principles enshrined in the constitution that address standard health, safety, and environmental risks. For an example, see Constitution of France, Charter for the Environment, available at .asp#Charter; for an analysis, see Swedlow et al. (2009).

4 See, e.g., deFur (1999, 345-46) ("As described in the Wingspread Statement on the Precautionary Principle, the applicant or proponent of an activity or process or chemical needs to demonstrate to the satisfaction of the public and the regulatory community that the environment and public health will be safe.").

regulation are following a path that the critics of precautionary constitutionalism have already traveled.

Finally, Section 3 argues that the modern theory of risk regulation has arrived at a conclusion that may be called the "mature position" (Hirschman 1991, 153-154). On this view, the goal of regulators should simply be to take optimal precautions, according to a calculus that weighs all relevant risks of action and inaction. As it turns out, however, constitutional theorists such as Publius and Story already endorsed the mature position, in their own language. What's new is, in this case at least, very old.

The mature position has been criticized on second-order or indirectly con-sequentialist grounds, the argument being that even if the mature position is the ideal decision procedure, precautionary principles are necessary to compensate for predictable biases or distortions in regulatory decision making. I trace a parallel argument through the constitutional debates and also outline a rejoinder, applicable to both ordinary risk regulation and the regulation of political risks. Because relevant biases and distortions appear on all sides of the issues, the second-order argument for precautions, based on the capacities of decisionmakers, neglects tradeoffs and can prove self-defeating in precisely the same fashion as first-order arguments for precaution. In conclusion, I identify a strictly negative but nonetheless valuable function of the mature position, which improves the processes of constitutional design and interpretation by laundering out one-sided arguments and thereby placing all relevant risks before decisionmakers.

To be clear, I aim to identify and assess precautionary arguments for constitutional rules, not to evaluate the ultimate merits of those rules. Where particular precautionary arguments fail, the rules they were offered to justify may or may not be independently justifiable under the mature position. If we get the analysis right, the set of constitutional rules that will result is not my concern here.


In the domain of risk regulation, precautionary principles come in many different forms. One count shows no less than nineteen versions of "the precautionary principle"5—or nineteen different precautionary principles, related only by a family resemblance. As we will see, constitutional precautionary

5 Wiener (2002, 1513) (citing Sandin 1999).

principles are equally heterogeneous. The principal dimensions of variation include the following:

Scope: to what political risks does the principle apply? The leading ones I will discuss are "abuse of power" or self-dealing by officials, "tyranny" in the sense of legislative6 or executive dictatorship,7 majoritarian oppression,8 minoritar-ian oppression, the death of federalism or the abolition of the states,9 and various forms of biased policymaking by agencies and biased judging. Because of their second-order character, political risks very much include strategic risks that arise from the interdependence of the choices of political actors.

Weight: how strong is the principle within its scope? What sort of showing or what sort of reasons suffice to defeat it?

Timing: when does the constitutional rule intervene to ward off an uncertain threat? How far in the future must or may the threat arise?

Justification: why should there be ex ante precautions at all, as opposed to ex post remedies?

Overall, in both regulatory and constitutional domains, it is best to envision a continuum of precautionary principles, varying both in their stringency and in the timing of their application (Wiener 2002, 1514). "On these sliding-scale dimensions, regulation is more 'precautionary' when it intervenes earlier and/ or more stringently to prevent uncertain future adverse consequences" (Id.).

The inherent messiness of the subject creates a dilemma about what to include. Constitutional arguments offered by framers and other constitutional actors may appear precautionary, in some broad sense, but those actors are not decision theorists or game theorists and they rarely specify the precautionary principle that underlies the argument, or whether the constitutional rules at issue might instead be justifiable on non-precautionary grounds. I have opted to lump before splitting. Rather than narrowing the focus at the outset, I will begin by canvassing a broad range of seemingly precautionary or quasi-precautionary arguments.

For ease of exposition, I will arrange the examples along two axes. First, precautionary arguments may be addressed to constitutional designers or else to interpreters of an established constitution. Second, such arguments may be pitched at wholesale, as master principles, or at retail, as justifications for particular constitutional rules and structures. Collating these two distinctions

6 See The Federalist No. 47 (Hamilton, Madison & Jay 1961, 300-308).

7 See Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

8 See United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938).

9 See Brutus XV (Storing, ed. 1981, vol. 2, 437-442).

yields four cases (I.A., I.B. I.C., and I.D.). With these in hand, I will distinguish constitutional precautionary principles from some near relations (I.E.).

1.1 Wholesale Principles of Constitutional Design

In his Life of George Washington, John Marshall described a precautionary mindset widespread among Antifederalists of the founding era: " That power might be abused, was, to persons of this opinion, a conclusive argument against its being bestowed; and they seemed firmly persuaded that the cradle of the constitution would be the grave of republican liberty" (1926, 240-241, emphasis added). Robert Yates, writing as the Antifederalist pamphleteer Brutus, went so far as to offer "an axiom in politic[s]", to the effect that "the people should never authorize their rulers to do any thing, which if done, would operate to their injury" (Brutus VIII, Storing, ed. 1981, 406)—a principle that seemingly took no account of the probability of the harm occurring, as opposed to the consequences of its occurrence. Brutus in effect offered a precautionary master principle of constitutional design aiming to preclude even the possibility that constitutional power would be abused.10

The most obvious predecessor, and perhaps ancestor, of this approach was David Hume's maxim that "in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest" (1742, 84, emphasis omitted). Hume's "knavery principle" is best understood not as a factual claim that all men are so motivated, but rather a claim that constitutional design will work best if all men are presumed to be so motivated. Later theorists have advanced a cluster of justifications for a presumption of that sort; for our purposes, most relevant is the idea that the knavery principle represents a kind of "precautionary exer-cise"11 that is useful for constitutional designers, despite its counterfactual character.

Suppose that each office-holder who is a bad type does damage that outweighs the benefits supplied by an office-holder who is a good type. In a risk model, the designers may decide to act in a risk-averse fashion, discounting their estimate of the probability that good types will hold power by the disproportionate harm that bad types inflict.12 Alternatively, suppose that the designers face genuine uncertainty about the proportion of knaves in the pool

10 For a similar approach to political theory, as opposed to constitutional theory strictly speaking, see, e.g., Popper (1945); Shklar (1998).

11 Brennan & Buchanan (1985, 52).

12 See id. at 54-59.

of potential office-holders, a question on which they simply have no epistemi-cally justified estimate of probabilities. The designers may then do best to maximize the minimum payoff from constitutional arrangements by supposing that all office-holders will be bad types, and by adopting rules designed above all to preclude the harms of the worst-case scenario—a type of maximin constitutionalism.13

1.2 Retail Principles of Constitutional Design

At the retail level, many rules and structures of the Constitution of 1787 were designed and chosen on explicitly precautionary grounds. At the Philadelphia convention and in the subsequent debates over ratification, both Federalists o

and Antifederalists often cast their arguments in precautionary terms. "In the l

Virginia debates, Henry Lee correctly observed that 'the opposition continually e

objected to possibilities with no consideration of probabilities'. (.. .) At the r

same time, in the Pennsylvania debates James Wilson defended the document 3

by claiming that 'we were obliged to guard even against possibilities, as well as /

probabilities.'"14 .

1.2.1. The unitary executive |

At the convention, a main thread in the debate over a unitary executive centered .

on the question whether a unitary or multiple executive was a better precaution /

against the risk of despotism. On the one hand, Randolph "strenuously g

opposed a unity in the Executive magistracy. He regarded it as the foetus of t

monarchy" (Farrand 1911, 66). On the other hand, Wilson argued that "Unity §

in the Executive instead of being the fetus of Monarchy would be the best r

safeguard against tyranny" (id.). Although the two had contrasting views of 1

the merits of the institutional question, the aim of choosing the right precau- 0

tions against monarchical despotism was common to both. 5

13 The maximin strategy in decision theory holds, roughly, that where the probabilities of possible harms are unknown, it is best to choose the course of action that maximizes the minimum payoff—the action with the best worst-case scenario. See Luce & Raiffa (1957), 278-279. This is equivalent to treating the worst as sure to happen. See id. at 280. Under uncertainty, of course, other decision rules are also possible. One is maximax, which maximizes the payoff from the best case rather than the worst case. Weighted combinations of the extremes are also rational. See id. at 280-286. I will ignore these alternatives on the ground that their resonance with, or relevance to, the history and theory of constitutional argument is far less obvious than is the distrustful maximin perspective on governmental power.

14 Elster (forthcoming), at 82 (internal citations omitted). This tendency to treat worst-case political possibilities as though they are certain to occur is, in effect, the maximin approach to constitutionalism.

1.2.2. Separation of powers; checks and balances

In a similar vein, Federalists and Antifederalists were united on the view that the separation of powers, and various structures of checks-and-balances, were best justified as precautions against abuse of power. In New York, Melancton Smith put the argument in starkly precautionary form by claiming that "because there would eventually be corruption in Congress, 'It is wise to multiply checks to a greater degree than the present state of things requires'" (Kenyon 2002, 102). Even if there is no present problem, in other words, the prudent constitutional designer will take precautions against a risk that is likely to materialize at some unknown future point. For Madison, in Federalist 51, the principal justification for both separation of powers and checks-and-balances was to serve as "auxiliary precautions" against the concentration of all powers in the hands of the legislative department—auxiliary to elections (direct or indirect), which were an inadequate safeguard (The Federalist No. 51, Hamilton, Madison & Jay 1961, 322).

1.2.3. Standing armies and military appropriations

One of the most contentious elements of the proposed constitution, and one of the most difficult points for its supporters to defend, was the explicit grant of power to Congress to "raise and support armies", subject only to the limitation that no military appropriation last longer than two years.15 Picking up a longstanding theme of libertarian argument in English constitutionalism, Antifederalists and others worried about the risk that a standing army would become a tool of despotism, whether monarchical or oligarchic. The general argument was that "the liberties of the people are in danger from a large standing army", either because "the rulers may employ [the army] for the purposes of supporting themselves in any usurpation of power, which they may see proper to exercise", or because of the "great hazard, that any army will subvert the forms of the government, under whose authority, they are raised, and establish one, according to the pleasure of their leader" (Brutus X, Storing, ed. 1981, 413). In light of these hazards, Antifederalists criticized the proposed constitution on the ground that it took insufficient precautions. Their preferred alternative was a provision that barred standing armies in time of peace, perhaps with exceptions for minimal garrisons at arsenals and borders, and for raising armies when an imminent threat of foreign invasion appeared.16

15 U.S. Const. Art. I, § 8, cl. 12.

16 See the clause proposed in Brutus X (Storing, ed. 1981, vol. 2, 416).

1.2.4. The Bill of Rights

More generally, and more successfully, Antifederalists articulated a theory of constitutional rights as precautions, and criticized the proposed document for its failure to include a bill of rights of the sort that many state constitutions set out. Thus Brutus found it "astonishing, that this grand security to the rights of the people is not to be found in this Constitution" (Brutus II, Storing, ed. 1981, 374). Bills of rights were necessary, he argued, for the "security of life", the "security of liberty", and "for securing the property of the citizens" (id. 374375). The main political risk against which bills of rights were directed, on the Antifederalist theory, was agency slack—the abuse of power by "rulers" insufficiently constrained by elections or by the constitutional enumeration of governmental powers.17 Because "rulers have the same propensities as other men.. . the same reasons which at first induced mankind to associate and institute government"—fear of the predatory impulses of their fellows—"will operate to influence them to observe this precaution" (id. 374).

1.3 Wholesale Principles of Constitutional Interpretation

Once a constitution is in place, actors will propose competing master principles of constitutional interpretation. Among the possible principles, some will take a precautionary form, urging that the constitution be "strictly" or "narrowly" construed to prevent political risks. In the history of American constitutionalism, precautionary master principles have taken two main forms: one based on federalism, the other on individual rights. These two forms are by no means mutually exclusive. Where national regulatory action is at issue, a coalition between federalists and libertarians will often form, claiming that precautions against overreaching by the national government protect individual liberty. A current example is the coalition of federalists and libertarians challenging the constitutional power of Congress to enact an individual mandate to buy health insurance.

1.3.1. Federalist precautionary principles

The federalist precautionary principle advocates strict construction of national powers. The early 19th-century commentator St. George Tucker urged that the Constitution "is to be construed strictly, in all cases where the antecedent rights ofa state may be drawn in question" (Tucker 1803, 151). The basis of "Tucker's Rule" (Lash 2006) was a mix of consent theory and precaution:

[A]s every nation is bound to preserve itself, or, in other words, [its]

independence; so no interpretation whereby [its] destruction, or that

17 See Address by John Francis Mercer (Storing, ed. 1981,vol. 5, 105) ("Againstthe abuse and improper exercise of these sacred powers, the [p]eople have a right to be secured by a sacred Declaration....").

of the state, which is the same thing, may be hazarded, can be admitted in any case, where it has not, in the most express terms, given [its] consent to such an interpretation. (Tucker 1803, 423)

Here, the political "hazard" is that national power will "destroy" the independence of what Tucker took to be the sovereign and independent nation-states of the American confederation; such states must be strongly presumed to take proper precautions for their own survival, and must therefore be presumed not to chance their own destruction unless their consent to assume such a risk is unmistakable. For Tucker and other early federalist commentators, the federalist master principle of strict or narrow construction of national powers was embodied in the Tenth Amendment, which provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".18

1.3.2. Libertarian precautionary principles £

Tucker and the early federalists had another string to their bow, however: the l

Ninth rather than Tenth Amendment. The former provides that "[t]he enu- f

meration in the Constitution of certain rights shall not be construed to deny or j

disparage other retained by the people",19 and has been portrayed as a master |

principle of constitutional interpretation—an interpretive presumption in .

favor of "individual liberty" (Barnett 2004, 242). On this view, individuals /

are conceived to have natural liberty rights, and constitutional courts must g

review governmental action under a presumption of liberty, itself taken to be £

embodied in the written constitution. |

In both early and recent formulations, this presumption of liberty is often |

cast in explicitly precautionary terms. For Tucker, the point of the Ninth 9

Amendment was "to guard the people against constructive usurpations and 0

encroachments on their rights", and the combination of the two amendments 5 entailed that "the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question" (Tucker 1803, 154). More recently, a prominent constitutional libertarian writing in the Tuckerian tradition grounds judicial review of the constitutionality of governmental measures on the need to protect natural liberty from "legislative or executive abuses" (Barnett 2004, 267).

18 U.S. Const. amdt. X.

19 U.S. Const. amdt. IX.

1.3.3. Judicial review

As the last argument shows, judicial review of statutes for constitutionality has itself been justified as a precautionary principle, in the sense that it provides a beneficial safeguard against an uncertain propensity to rights-violations by legislative and executive actors. On this justification, even if courts are not systematically better than legislatures or other actors at identifying the correct scope of constitutional rights (according to some theory or other), it is beneficial to add another veto-point to the lawmaking system; doing so has the marginal precautionary effect of reducing one type of error, the underprotec-tion of rights.20 Admittedly, judicial review might itself create another type of error by overprotecting rights, but proponents of this view offer a judgment that the former type of error is more harmful than the latter, so that "it [is] better to err on the side of too much rather than too little protection of right-s"21—an essentially precautionary claim.

1.4 Retail Principles of Constitutional Interpretation

Although precautionary principles of constitutional interpretation are sometimes stated in general terms, they are sometimes stated so as to have a limited domain, applying to particular classes of problems or controversies, to particular clauses of the written constitution, or to particular governmental powers.

1.4.1. State taxing power

McCulloch v. Maryland,22 Chief Justice Marshall's great opinion on structural constitutionalism, is famous for its expansive construction of the national government's enumerated powers, in direct opposition to the federalist precautionary principle advocated by Tucker. Indeed Marshall himself announced a precautionary principle that narrowly construed state power to tax federal instrumentalities. Flipping on its head Tucker's concern that an expansive construction of national power would "hazard" the "destruction" of the independent sovereign states, Marshall argued that an expansive construction of state taxing power risked the same denouement for federal instrumentalities, because "the power to tax involves the power to destroy".23 Unless the federal

20 See Cross (2000); Fallon (2008).

21 Fallon (2008, 1708).

22 17 U.S. 316 (1819).

23 Id. at 431.

government possessed the power to immunize its chartered instrumentalities from state taxation, the consequences might be dire:

If we apply the principle for which the State of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States.24

Like Brutus, only with the opposite political valence, Marshall slips with lightning speed from the premise that a political risk is "capable" of occurring to the conclusion that it must be guarded against.25 In the words Marshall had used to mock the Antifederalists, "that power might be abused, was, to persons of this opinion, a conclusive argument against its being bestowed" (Marshall 1926, 240-241).

1.4.2. Federal spending power

As historians of constitutional federalism have shown, Tuckerian principles enjoyed a revival during and after the 1830s (Lash 2006, 1382-1389). The tradition of precautionary federalism continued strongly for another century, although of course with varied fortunes. The final crisis of the old order in the 1930s witnessed a vigorous assertion of precautionary narrow construction of national powers. Perhaps the clearest example is United States v. Butler,26 the 1936 decision in which the Court invalidated the New Deal's scheme, in the Agricultural Adjustment Act, for granting subsidies to farmers who would agree to curtail production. The issue was whether Congress might use spending to accomplish an aim that, under the contemporary law, Congress lacked the constitutional power to accomplish through direct legislation. The Court announced a precautionary principle against such uses of the federal spending power, one explicitly justified as a safeguard against political abuse:

If, in lieu of compulsory regulation of subjects within the states' reserved jurisdiction, which is prohibited, the Congress could invoke the taxing and spending power as a means to accomplish the same end, clause 1 of § 8 of Article I would become the instrument for total subversion of the governmental powers reserved to the individual

24 Id. at 416.

25 Id. at 432.

26 297 U.S. 1 (1936).

states____If the act before us is a proper exercise of the federal taxing

power, evidently the regulation of all industry throughout the United States may be accomplished by similar exercises of the same power. ...[T]he general welfare of the United States ...might be served by obliterating the constituent members of the Union. But to this fatal conclusion the doctrine contended for would inevitably lead.27

1.4.3. Free speech

On the "rights" side of the conventional structure-rights divide, precautionary arguments are if anything even more common. Vincent Blasi's influential account of free speech urges judges to devise free speech doctrine by taking a "pathological perspective", in which constitutional rules are geared to preventing the worst-case scenario—abuses targeted at the speech of political minorities, dissenters, or opponents of the regime (Blasi 1985, 449-450). Blasi's argument calls for a type of constitutional risk aversion, or, if one prefers to think in terms of uncertainty, a type of constitutional maximin.

Here there is a stock contrast between two cases that both address subversive political speech; one illustrates an expected-risk approach, the other a precautionary approach. In a case involving subversive advocacy by Communist organizations, Dennis v. United States held that courts should evaluate the risk that advocacy of overthrow of the government will lead to very severe harms, even if in the remote future, quoting a test formulated by Learned Hand: "In each case (courts) must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'"28 In contrast to this straightforward expected-risk calculus, Brandenburg v. Ohio held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".29 The latter holding attempts to build a doctrinal barrier against politically motivated restrictions on speech and other worst-case political pathologies, and thus exemplifies Blasi's precautionary approach. Similar justifications have been offered for other free speech principles and doctrines, such as the strong presumption against "prior restraints" that regulate speech before

27 Id. at 75-78.

28 341 U.S. 494, 510 (1951) (quoting United States v. Dennis, 183 F.2d. 201, 212 (1950)).

29 395 U.S. 444, 447 (1969).

it actually occurs—a precautionary principle against government regulation that may "chill" protected expression.30

1.4.4. Due process and an impartial tribunal

The constitutional law of due process requires a neutral adjudicator where protected interests are at stake. Among the various threats to neutrality— corruption, bias or ideology, protean words all—which should be policed by due process? The structure of the problem is that it is difficult to prove, in particular cases, whether the various decision making distortions operated and affected the outcome; the consequence is that which way the default rules or burdens of proof are set will often prove dispositive. Thus the Supreme Court, and the lower courts, have developed a series of rules that are explicitly geared to prevent risks of decisional distortions that are difficult to observe directly. One series of cases develops a precautionary principle against adjudication by officials with a personal pecuniary stake in the case at hand.31 Such an interest need not be direct, and its biasing effect need not be proved in particular cases; it suffices, as the Court once put it, that there is a "possible personal interest".32

1.4.5. Reasonable doubt rule

In criminal trials, one relevant risk is conviction of the innocent. Because there is rarely an independent benchmark of guilt or innocence apart from the trial itself, that risk is inherently difficult to gauge. The reasonable doubt rule can then be understood as a precautionary principle that seeks to erect safeguards against the possibility of convicting the innocent.33 In Blackstone's formulation, the rule's premise is that it is better for ten guilty men to go free than for one innocent to be convicted (Blackstone 1769, 352). More generally, the reasonable doubt precautionary principle says that in criminal trials the ratio of false negatives (acquittals of the guilty) to false positives (convictions of the innocent) should be N to 1, where N has been specified by various courts and commentators as ranging not only up to 10 but as high as 100 or even more.34 This approach might or might not be consistent with an expected-utility calculus, but is not usually justified in such terms; the classical

30 See Nash (2008, 516-517).

31 See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927).

32 Gibson v. Berryhill, 411 U.S. 564, 579 (1973).

33 See Joy (2006, 404-405); Nash (2012, 30).

34 See Volokh (1997).

arguments for the reasonable doubt rule do not typically consider the countervailing risk that the guilty who are set free will go on to commit crimes against innocent third parties35—a point I take up below. Rather, the basic intuition behind the reasonable doubt rule is vaguely precautionary: the burden of risk or uncertainty should be resolved in favor of protecting the innocent.

1.4.6. Prophylactic rules

Finally, precautionary arguments also underpin many so-called "prophylactic" rules of constitutional doctrine. The leading example of the latter is Miranda v. Arizona,36 which in effect requires police to inform suspects of their constitutional rights as a precondition for using the suspects' voluntary statements as evidence. In the standard justification,37 the Miranda warnings are not required by the constitution itself—the constitutional requirement is just that waivers of rights be "knowing and voluntary", all things considered—but are a judicially created adjunct doctrine that overprotects constitutional interests, in part because of the difficulties of case-by-case determination of whether a suspect's waiver of rights was indeed voluntary. In other words, one might protect suspects through ex post remedies, involving case-specific determinations of whether police have abused their position of power; but the judges think that approach inadequately protective, and have created auxiliary ex ante precautions in the form of Miranda warnings.

1.5 Constitutional Precautionary Principles and Near Relations

Given the multidimensional variation of constitutional precautionary principles, it is important to compare and contrast them with several near relations—conceptual structures or modalities of constitutional argument that in some way or another attempt to regulate the risks of politics by building some form of bias or skew into constitutional rules. No sharp distinctions are possible, but I will try to indicate some rough lines of demarcation that draw a blurry boundary around the category of constitutional precautions.

1.5.1. Constitutional clear statement principles

In several areas of constitutional law and doctrine, actors have argued for clear statement principles for interpreting the Constitution. In the setting of separation of powers, Madison stated in the First Congress that the legislative and

35 See Laudan (2011).

36 384 U.S. 436 (1966).

37 See, e.g., Caminker (2001, 4-5); but see Dickerson v. United States, 530 U.S. 428, 444-465 (Scalia, J., dissenting).

executive powers "must [be] suppose[d] ... intended to be kept separate in all cases in which they are not blended" (Eliot 1836, vol. 4, 380). Chief Justice Taft endorsed a similar principle in Myers v. United States.38 And, as we have seen, Tucker's rule of strict construction of national powers amounts to a clear statement rule that presumes against national power unless expressly granted.

I take it that such clear statement principles of constitutional interpretation39 may or may not count as precautionary principles, depending upon how they are justified. Such principles might be justified as a precaution against political risks, but then again they might be justified on other grounds. Thus Tucker's Rule—ultimately founded on the "hazard" that national power will be used to "destroy" the putative independent sovereignty of the States—is explicitly precautionary. The Madison-Taft principle, by contrast, is not clearly precaution- W ary. Although Madison did suggest that a conflation of powers would "abolish O at once that great principle of unity and responsibility in the executive depart- dd

ment, which was intended for the security of liberty and the public good",40 the O

main thrust of the argument was simply that a clear statement rule of separation h

of powers was the best interpretive inference from the structure of the new ://

Constitution. a.

1.5.2. Slippery slope arguments c

Constitutional clear statement principles may or may not be precautionary; in ls. turn, constitutional precautionary principles

slippery-slope arguments. The argument in United States v. Butler—allowing g federal spending for the purpose of circumventing limits on federal regulatory | power would license a sequence of events ending in the abolition of state inde- g pendence—takes a slippery-slope form. By contrast, the Antifederalist

con- a

cern over standing armies did not necessarily have a slippery-slope element. 1 Rather, standing armies were seen as a standing risk that could or would even- 2 tually produce a tyrannical coup d'etat, but that risk could be understood 5 as a constant hazard rather than as the end-state of a predictable slide down a slippery slope.

The difference is that the Butler argument has the dynamic or intertemporal element that is a hallmark of slippery-slope arguments (Schauer 1985, 381382). In this dynamic, a precedent at Time 1, perhaps unobjectionable in itself,

38 272 U.S. 52 (1926).

39 Not to be confused with constitutionally inspired clear-statement principles for interpreting statutes. On the latter topic, see Manning (2010) and Eskridge & Frickey (1992).

40 Myers, 272 U.S. at 160.

41 297 U.S. 1 (1936).

triggers one or more causal mechanisms (Volokh 2003) that make it more likely that a more expansive precedent will be set at Time 2, and so on, until the bottom of the slippery slope is reached. Each step in the sequence increases the probability that the next step will occur, and it is this feature that makes the slope slippery. By contrast, the underlying risk model might have no inherently dynamic features at all. The actor might fear that the distribution of risks has a "fat tail", such that extreme undesirable outcomes are possible at any given time, and might then argue for taking precautions in light of the high variance of this distribution. Yet draws from a distribution of that sort might be entirely independent of one another, so that whether the risk does or does not materialize at Time 1 has no effect on whether it materializes at Time 2, and there is no slippery slope in the picture. I conclude that although precautionary arguments might be and sometimes are predicated on slippery-slope risks, they need not be; slippery slopes are not a necessary feature of precautionary arguments, but merely one of several possible justifications for taking precautions.


If constitutional law, history and theory provide a wide array of precautionary justifications for legal rules, they also provide a repertoire of counterarguments. In various eras, theorists, judges, and other actors have attempted to undermine the arguments for precaution. At the stage of constitutional design, such actors offer arguments to block the formulation of precautionary constraints. At the stage of constitutional interpretation, the point of the arguments is to prevent narrow construction of powers already granted.

Although anti-precautionary arguments appear in many eras and in many diverse contexts, I suggest they fall into recurring structural patterns. Adapting a set of categories from Albert Hirschman's analysis of political rhetoric (Hirschman 1991, 7), supplemented by the modern theory of risk regulation, I will sort the arguments into four groups:

(1) Futility arguments, in which the opponent argues that a given precautionary principle will fail to attain its ends.

(2) Jeopardy arguments, in which the opponent argues that a given precaution will produce net costs in light of countervailing risks on other margins.

(3) Perversity arguments, in which the opponent argues that a given precaution will prove self-defeating because of countervailing risks on the same margin—in other words, because it actually exacerbates the very risk that the precaution attempts to prevent.

(4) Arguments for ex post remedies, in which the opponent acknowledges the risk but argues that the correct mechanism to address it is not a general ex ante precaution. Instead, the correct mechanism is an ex post remedy applied case-by-case, after the relevant risk has actually materialized.

2.1 Futility: "Parchment" Precautions and Commitment Problems

One rejoinder to a proposal for constitutional precautions is that the proposal may fail the criterion of incentive-compatibility.42 The very conditions that make the precaution necessary also ensure that the actors against whom precautions are taken will have incentives to undermine or ignore it, and no other 0 actors will have incentives to enforce the precaution against its violators.43 | Where this is so, the benefits of the precaution are zero and the proposal is a futile. As the structure of futility arguments is straightforward, I will mention f only a few of the most significant examples. m

2.1.1. Checks and balances; standing armies a

The locus classicus of futility argument in constitutional theory is Madison's f reference to "parchment barriers" in Federalist 48. The general line of his ar- jj gument, which extends over Federalist 47, 48, and 51, is that formal specification of electoral accountability and separated powers in the constitution will be inadequate to contain legislative tyranny unless checks-and-balances mechanisms are added as "auxiliary precautions" and unless those mechanisms are made incentive-compatible by tying "the interest of the man" to "the constitutional rights of the place [i.e. the institution]," so as to make "ambition counteract ambition" (The Federalist No. 51, Hamilton, Madison & Jay 1961, 322).

Yet the claim that parchment precautions are futile first appears in the Federalist Papers in connection with the debate over standing armies, not checks-and-balances, and was made by Hamilton, not Madison. Internal insurrections within Pennsylvania and Massachusetts, Hamilton observed, had compelled both states to raise and maintain standing forces, the general lesson being "how unequal parchment provisions are to a struggle with public necessity" (The Federalist No. 25, Hamilton, Madison & Jay 1961, 167). Hamilton's futility critique of precautionary prohibitions on standing armies in peacetime thus took the form of an argument in the alternative. One possibility would be

42 For summaries of and citations to the relevant literatures in political economy, see Levinson (2011, 670-680) and Tushnet (2000, 95-128). A pithy treatment is Acemoglu (2003, 639-648).

43 See Vermeule (2006b).

that the exception for war or insurrection would be interpreted, in operation, so as to nullify the prohibition, because "the national government to provide against apprehended danger might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy.... [A] discretion so latitudinary as this would afford ample room for eluding the force of the provision" (id. 165). If, alternatively, the prohibition were seriously thought to prevent even the raising of armies in time of peace, it would simply be ignored or violated when apparent risks of invasion or insurrection so required. Whether evaded by interpretation or violated outright, the prohibition would prove futile.

2.1.2. Free speech

In modern terms, the "parchment barriers" argument offered by Hamilton and then Madison points to the difficulties of commitment. As there is no agent external to society who can enforce the terms of constitutional commitments,44 some indirect incentive-compatible mechanism must be called into play to make such commitments stick, and the existence of such a mechanism cannot be assumed.45 The commitment problem only partially overlaps the issue of constitutional precautions: not all precautions suffer from commitment g

problems, while conversely those problems may also beset constitutional rules and structures not justified in precautionary terms.

An example of the area of overlap is the precautionary "pathological perspective" on free speech doctrine, under which "the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent..." (Blasi 1985, 449). The pathological perspective underwrites doctrines that attempt to create an intertemporal commitment: judges will commit themselves, or their successors, to clear speech-protective rules that will provide a bulwark against majoritarian oppression or other political pathologies. As we have seen, the stock example is the rule of Brandenburg v. Ohio,46 under which government may not ban speech to preserve public order unless there has been express advocacy of imminent violation of the law.

However, the pathological perspective by itself provides no mechanism to make doctrinal restrictions of this sort stick when pressing exigencies arise. The predictable result has been that when an impressionistic judicial calculus of

44 See Elster (2000, 88-174); Acemoglu (2003).

45 See Levinson (2011, 663).

46 395 U.S. 444 (1969).

expected harms shows the existence of a threat to public order that the Brandenburg test would disable government from addressing, it is the test that has given way.47 The main objection to the "pathological perspective" argument for a precautionary approach to free speech law is simply that precautions will systematically tend to prove futile when they would prevent government from taking action against apparently dangerous threats.

2.2 Jeopardy: Other-Risk Tradeoffs

In many settings, the most forceful argument against precautions is simply that the optimal level of the target risk is not zero, and that some degree of expected harm from the target risk is necessary to obtain other goods. This jeopardy response invokes other-risk tradeoffs. Faced with a precautionary argument aimed at preventing a target risk, the opponent points to a distinct countervailing risk whose expected costs will be increased by the precaution.48 If the opponent instead argues that the precaution will exacerbate the target risk itself, the appeal is to a same-risk tradeoff and the response is one of perversity.

To illustrate the distinction, Hamilton (as Publius) deployed both types of argument against a precautionary rule that would prohibit the raising of standing armies in times of peace. Under such a prohibition,

[a]ll that kind of policy by which nations anticipate distant danger and meet the gathering storm must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenseless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation (The Federalist No. 25, Hamilton, Madison & Jay 1961, 165-166) (emphasis added).

Here Hamilton argues both that a prohibition against standing armies in peacetime, justified as a precaution to protect liberty, would create a countervailing risk on a different margin—the seizure of property by foreign invaders—and also that it would perversely create a risk to liberty itself, because a foreign invasion will destroy liberty as surely as will domestic despotism.

47 See Posner & Vermeule (2007, 232-234). See, e.g., U.S. v. Progressive, Inc., 467 F. Supp. 990 (1979) (granting injunction against magazine article that provided instructions for building a hydrogen bomb).

48 For the terms "target risk" and "countervailing risk", see, e.g., Wiener (2002).

2.2.1. National governmental powers

If there is a main line of argument to the Federalist Papers, jeopardy is it. Although Publius employs memorable futility arguments and perversity arguments as well—we have seen some of the former and will soon see some of the latter—the overall structure of the Federalist Papers frames a large-scale jeopardy argument: the status quo under the Articles of Confederation poses intolerable countervailing risks on multiple dimensions apart from liberty, such as public order, strong national defense, and the security of property. Liberty-protecting precautions against the power of the Union will hamper the strong national government needed to protect against those risks; therefore the ratifiers should be willing to trade off some risks to liberty against other goods.

In Federalist 41, Publius offered his most general rebuttal to the general Antifederalist argument for precautions against abuse of power:

It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a

beneficial use can be made____[C]ool and candid people will at once

reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused (Hamilton, Madison & Jay 1961, 255-256).49

Quite remarkably, given the contemporary political context, the passage blandly observes that some abuse of power is the inevitable byproduct of cost-justified grants of governmental discretion; the optimal level of political abuse is therefore greater than zero (Aghion et al. 2004).

49 For a version of the argument that emphasizes the paranoid or otherwise non-rational cognition of those who worry in general terms about governmental "abuse", see Story (1833) (emphasis added):

A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is no wise entitled. (Vol. 1, 408).

2.2.2. Reasonable doubt rule

For an example conventionally treated under the rubric of "rights", consider the justification of the reasonable doubt rule as a precautionary principle against the risk of false positives—erroneous conviction of the innocent. Such justifications usually overlook the countervailing risk of false negatives, when those actually guilty are erroneously set free. If the members of the latter class can be expected to create dangerous risks to society, then a precautionary perspective might even be invoked in favor of the opposite rule—better to convict ten innocents rather than let one guilty man go free. Thus it has been argued, tongue in cheek, that because "[v]iolence is a problem of public risk and public health [, i]n this context, the precautionary principle would favor earlier and more stringent intervention to prevent the 'future dangerousness' of persons who may, with considerable uncertainty, be forecast to commit violence in the future" (Weiner 2002, 517).50

This exemplifies a jeopardy argument because the risk against which the reasonable doubt rule takes precautions—unjustified deprivation of liberty through the criminal law—is not the same as the countervailing risk to which the critic of the reasonable doubt rule points—here, "public risk and public health" (id.). If the criticism is that the violence to be anticipated from letting the guilty go free will itself deprive third-party innocents of their liberty, suitably defined,51 then the liberty of innocents appears on both sides of the balance, and a same-risk tradeoff or perversity argument would arise.52

2.2.3. The administrative state and the combination of functions

In the protracted rear-guard action fought by various legalists and libertarians against the advance of the administrative state, one of the main arguments has been that combining rulemaking, prosecution and adjudication in the hands of the same administrative agencies effects a violation of core norms of separation of powers, and thus creates an unacceptable risk of biased agency action. The agency that makes rules and prosecutes violators, the claim runs, cannot possibly adopt an impartial perspective in adjudicating violations of its rules. Accordingly, the Court has periodically been urged to declare the combination of functions in the administrative state a per se violation of due process.

50 For a similar point in the setting of free speech, see Schauer (2009, 304). Schauer notes that strong free speech protection may itself prevent government from taking precautions against an uncertain possibility or risk of catastrophic harms, such as terrorist attacks.

51 See Vermeule (2008, 922-928).

52 Cf. Sunstein & Vermeule (2005).

The Court, however, has consistently rejected this sort of claim.53 In Withrow v. Larkin, the Court acknowledged that the vast and varied federal administrative state would grind to a halt if the combination of functions—a routine feature of federal administrative agencies—were declared per se unconstitutional on precautionary grounds.54 This is an implicit jeopardy argument: the administrative state supplies so many valued goods that the risk of administrative bias is a constitutionally tolerable byproduct. I will return to this issue below.

2.3 Perversity: Same-Risk Tradeoffs

Perversity arguments are particularly useful and attractive to opponents of precautions when there is a dominant constitutional value in the culture of the day—a value that has become sacralized, making it unacceptable to argue that the value should be traded off against other goods. Under conditions of that sort, perversity arguments effect a kind of intellectual ju-jitsu, turning the value against itself and seizing the high ground.

2.3.1. Standing armies

We have seen that in the debate over standing armies, Publius offered a straightforward jeopardy argument based on the goods of public order and national security from foreign invasion. Yet Publius also attempted to turn the Antifederalist argument on its head by suggesting that a prohibition on a national standing army would itself endanger liberty. The jewel of Hamilton's brilliant series of papers on the issue55 was the crushing Federalist No. 8, titled "The Effects of Internal War in Producing Standing Armies and Other Institutions Unfriendly to Liberty" (Hamilton, Madison & Jay 1961, 66-71), which offered a sustained case that the Antifederalist stance against standing armies would exacerbate the very risk that it sought to prevent.

If Antifederalists blocked ratification of the proposed constitution as a precaution against a national standing army, Hamilton warned, the consequence

53 In Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), the Court more or less endorsed the requirements of the Administrative Procedure Act as constitutionally sufficient. The APA requires separation of functions at the lower level of initial agency adjudication, but explicitly permits combination of functions at the top level of agency decisionmaking, and combined arrangements are the norm in most federal agencies.

54 421 US. 35, 52 (1975) ("The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle").

55 Most directly, Federalist Nos. 23-28 (Hamilton, Madison & Jay 1961, 152-182), as well as the somewhat more general diagnoses of the faults of the Articles of Confederation in Federalist Nos. 2-10 (id. 37-84).

would be to create a European world of warring polities on the North American continent. Such a world would itself inevitably produce an array of standing armies. Moreover, the militarization of the states would result in systematic expansion of executive authority, "in doing which their [i.e. the state] constitutions would acquire a progressive direction towards monarchy.... Thus we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the old world.... [O]ur liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other" (Hamilton, Madison & Jay 1961, 68, 71). The Antifederalist error was to focus on the risks of the proposed constitution, while neglecting the countervailing risks of the steadily deteriorating status quo and the accelerating collapse of the Articles of Confederation regime.

2.3.2. Executive power and dictatorship

Along similar lines, Hamilton argued throughout the founding era that precautionary restrictions on the power of the executive would have the perverse result of causing the executive to slip off the bonds of constitutionalism altogether. The general problem, which Hamilton's Federalist No. 20 diagnosed by reference to the history of The Netherlands, was that

[a] weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities (Hamilton, Madison & Jay 136-137).

Although this passage in isolation might be taken to refer to government generally, Hamilton elsewhere made it pellucid that the dynamic of excessive weakness turning into excessive strength applied especially to the executive. As he warned the Philadelphia convention, "establish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators" (Farrand 1911, 329).

Modern Hamiltonians point to similar possibilities. As against the precautionary view that a reinvigorated or reinforced separation of powers is necessary, in the USA today, to prevent a possible presidential or military coup,56 it

56 See Ackerman (2010).

has been suggested that the separation of legislative and executive powers is itself a risk factor for dictatorship (Vermeule 2010, 6-8). For one thing, the separation of powers may reduce civilian control of the military by allowing the military to foment or exploit conflicts between civilian institutions (Huntington 1957)—a type of divide-and-conquer strategy. Furthermore, separation of powers tends to create heavy status quo bias—constitutional gridlock—and thus tends to create pent-up demand for a strong arm to sweep away the obstacles to reform, especially in times of economic emergency. The comparative evidence for this possibility is uncertain,57 which implies that on a precautionary perspective, weakening the separation of powers might itself be the best safeguard against dictatorship. At a minimum, there are uncertainties on all sides of the issue; under certain conditions, the separation of powers may represent a self-defeating precaution against dictatorship.

2.3.3. The Senate 3

Antifederalists favored direct and frequent legislative elections and restrictions :

on the re-eligibility of representatives, as precautions against elected oligarchy, a

corruption and abuse of power. For obvious reasons, the indirect election, long f

terms and indefinite re-eligibility of the Senate triggered Antifederalist fears. do

Madison, writing as Publius in Federalist 63, responded with a perversity argument:

In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States (Hamilton, Madison & Jay 1961, 387-388) (emphasis added).

Madison's point rests on the sort of precommitment argument that underpins much of liberal constitutionalism: a Senate "may be sometimes necessary

57 See Vermeule (2010, 7). In a similar vein, Ginsburg et al. (2011, 1849-1850) find a roughly one-in-eight chance that executive term limits perversely tend to increase the risk of executive coups, by removing the incentive of strong executives to continue to play within the system (a final-period problem).

as a defense to the people against their own temporary errors and delusions.... What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?" (id. 384). The sting in the final sentence is the word "tyranny", which emphasizes the perverse threat to political liberty posed by unrestricted popular liberty to direct events.

2.3.4. Free speech58

In a liberal legalist culture, the sacrosanct status of free speech principles— understood as precautions against politically motivated abuse of governmental power—implies that such principles are especially likely to become the target of 0 perversity arguments, which attempt to turn such principles against themselves. g Two illustrations come from the free speech law of political protest and sub- d versive advocacy. The first is Justice Jackson's dissent in Terminiello v. City of f Chicago,59 in which the Court invalidated a conviction of a defrocked Catholic | priest, a right-wing demagogue, for breach of the peace. The demagogue had P given a speech that caused riotous battles between his supporters and a hostile a mob of left-wing activists. Jackson's argument appealed in part to the benefits of f public order, but argued more pointedly in the vein of perversity: liberty—in j particular the liberty of free political speech—itself requires public order as a precondition of its existence, so that the Court's short-sighted protection of speech put at risk the very freedom it was intended to protect. As Jackson put it,

[i]n the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle [Fascists and Communists] are not interested permanently in either.60

Jackson here implicitly points to the classic liberal dilemma whether liberalism requires toleration of the intolerant. In the long run, the argument goes, liberalism may undermine itself by tolerating political speech and participation by groups who would repeal liberal protections if they came to power. This is a large-scale perversity argument: liberal freedoms, at least if pressed too far, put themselves at risk.

58 A helpful treatment of the cases and issues discussed in this sub-section is Volokh (1996).

59 337 U.S. 1 (1949).

60 337 U.S. at 36-37.

The liberal dilemma also underpins the opinion in Dennis v. United States, which upheld a conviction of Communist defendants for conspiring to organize the Communist Party to advocate the overthrow of the U.S. government by violence.61 As we have seen, the majority opinion by Chief Justice Vinson upheld the conviction by adopting Judge Learned Hand's cost-benefit test for free speech protection, under which courts "ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger".62 As against Justice Black's dissent, which offered a precautionary argument for free speech protection—"the freedoms [that the First Amendment] guarantees provide the best insurance against destruction of all freedom"63—the majority replied that if the government fell to Communism, all of Black's freedoms, including free speech, would fall with it:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.64

This sort of perversity argument boils down to the claim that liberty itself depends upon strong and stable government—the obverse of Benjamin Franklin's civil-libertarian claim that "[t]hose who would give up essential [l]iberty to purchase a little temporary [s]afety, deserve neither [l]iberty nor [s]afety" (1755, 242).

2.3.5. Judicial review

The perversity critique of a precautionary approach to free speech cases can be generalized into a critique of the larger precautionary justification for judicial review, discussed in I.C. Conditional on certain theories of rights that recognize affirmative claims to governmental aid or support, judicial review can be argued to block legislative or executive measures that are necessary to implement rights or to protect rights against private violation. On this view, the perverse result is that judicial review might increase the overall incidence of rights-violations. "Inserting an additional veto point into the process of obtaining effective

61 341 U.S. 494 (1951).

62 Id. at 510 (internal quotation omitted) (citing United States v. Dennis, 183 F.2d. 201, 212 (2d Cir. 1950)).

63 Id. at 580 (Black, J., dissenting).

64 Id. at 509.

legislation threatens erroneous underprotection of fundamental rights; it does not provide a 'hedge' against legislative underprotection of fundamental rights."65

2.3.6. Maximin constitutional design66

As we have seen, Federalist 41 gives the most general form of the jeopardy argument: precautions that restrict governmental discretion to provide other goods may reduce social welfare overall. The most general form of the perversity argument holds that designing or interpreting a constitution to prevent the worst case—maximin constitutional design, loosely speaking—will itself tend to bring about the worst case. Systematic constitutional caution may prove self-defeating.

An example is a critique of Hume's knavery principle, discussed in I.A. Anti-Humean critics object that the expectation of knavery is self-fulfilling: presuming officials to be knaves will tend to make officials into knaves.67 One possibility is that official motivations are partly endogenous to the constitutional rules. On this view, "a constitution for knaves crowds out civic virtues" (Frey 1997), a possibility that in turn can rest on one of several mechanisms.68 Constitutional sanctions for self-interested behavior might undermine social norms that would constrain the same behavior; the net effect may then be an | increase in self-interested action by officials. Alternatively, sanctions for . self-interested behavior might (unintentionally) convey a signal that many / other officials are engaged in the behavior that the sanctions aim to eliminate.

If so, the net result may be an increase in noncompliance by office-holders, | either because they are conformists who adjust their behavior to track what the o| majority does (Sliwka 2007), or because they are "reciprocal altruists" who r would comply with public-regarding norms if others were complying also, 1 but who are afraid of being chumps and are thus unwilling to comply unilat- 2 erally (Van der Weele, 2012). 5

Even if officials' motivations are not endogenous to the constitutional rules, the Humean presumption of knavery may have selection effects that perversely tend to filter self-interested actors into office while filtering out public-spirited actors. If public-spirited actors experience a cost from being subjected to elaborate monitoring devices based on a presumption of knavery—the cost of

65 Tushnet (2010, 61; emphasis in original).

66 For an earlier stab at these issues, see Vermeule (2003).

67 An excellent treatment of these issues is Kornhauser (2002).

68 For a model of conditions under which laws (here meaning sanctions or incentives) and norms act as either substitutes or complements, see Beenabou and Tirole (2011).

frustration, or of operating under a cloud of suspicion—then the presence of such devices will tend, at the margin, to filter out such actors while filtering in actors for whom the presumption of knavery is in fact accurate. Although this is merely one possible effect of such devices, the overall result may be that designing a constitution for knaves perversely tends to select knaves into the public sphere.

2.4 Ex Ante Precautions vs. Ex Post Remedies: "Not While This Court Sits"

By their nature, precautions are taken ex ante the materialization of the relevant risk. Accordingly, another argument against precautions is that ex ante safeguards are unnecessary in light of the availability of ex post remedies, such as suits for damages against officers who execute an unconstitutional policy. To be sure, the anticipation of an ex post sanction will itself produce ex ante deterrent effects, if the law can make a credible commitment to providing remedies after the fact. Yet it is wrong to assume that there is no difference between ex ante precautionary regulation and a system of ex post sanctions. For present purposes, a key difference is whether the constitutional rule is formulated to ward off an uncertain harm, or instead is formulated to require that the complaining party demonstrate that a harm has already materialized. The latter approach places the burdens of production and proof on the complainant and requires case-by-case assessment of evidence before the tribunal.

2.4.1. Taxation of federal instrumentalities and contractors

As we have seen, Chief Justice Marshall's opinion in McCulloch formulated a rule against state taxation of federal instrumentalities, based on the precautionary principle that "the power to tax involves the power to destroy".69 The rule of McCulloch—a "prophylactic per se rule" (Tribe 2000, 1223) that still holds today—is that states may not regulate or tax federal instrumentalities without express congressional authorization.

Later cases extended the precautionary zone to bar state taxation of private parties who do business with the federal government.70 The governing doctrine was that any state regulation or tax that indirectly regulated the federal government's activity was invalid; the point of this doctrine was to create a precautionary buffer to protect the freedom of otherwise valid federal operations. Justice Holmes, by contrast, articulated a competing position: ex post, case-by-case assessment of the destructive effect of state taxation on federal contractors would be enough to protect vital federal interests, without

69 17 U.S. 316, 431 (1819).

70 See, e.g., Osborn v. Bank of the United States, 22 U.S. 738, 867 (1824).

overprotecting those interests to such a degree as to squash the legitimate taxing power of the states.

In the most famous of Holmes' opinions on this issue, a dissent in Panhandle Oil Co. v. Mississippi ex rel. Knox,71 Holmes voted to uphold a state sales tax on oil sold to the USA for the use of the Coast Guard. "The power to tax", Holmes argued, "is not the power to destroy while this Court sits".72 The Court's ability to review interference with federal operations at retail thus undermined the need for a wholesale precautionary principle. The Court later limited the precautionary buffer zone around federal operations, and the opinion from which Holmes had dissented was overruled.73 Under current law, federal contractors can generally be subjected to nondiscriminatory state taxes and regulations.74

2.4.2. Free speech

Holmes' "not while this Court sits" principle later migrated to other parts of constitutional law, including the law of free speech. In Beauharnais v. Illinois,75 the Court sustained a criminal statute that prohibited the publication of libelous assertions about groups. Rejecting the contention that free speech precautionary principles should be invoked to invalidate the law, Justice Frankfurter wrote for the Court along Holmesian lines: |

We are warned that the choice open to the Illinois legislature here may o

be abused, that the law may be discriminatorily enforced; prohibiting b

libel of a creed or of a racial group, we are told, is but a step from g

prohibiting libel of a political party.... Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the |

power to adopt measures against criminal libels sanctioned by |

centuries of Anglo-American law. 'While this Court sits' it retains 9

and exercises authority to nullify action which encroaches on freedom 0

of utterance under the guise of punishing libel.76 5

In other words, the political risk that group libel law would be used as a pretext for the abuse of power could be dealt with through ex post, case-by-case assessment, rather than through ex ante precautions. Here as elsewhere in free speech

71 277 U.S. 218 (1928).

72 Id. at 223 (Holmes, J., dissenting).

73 See James v. Dravo Contracting Co., 302 U.S. 134 (1937).

74 See, e.g., United States v. New Mexico, 455 U.S. 720 (1982).

75 343 U.S. 250 (1952).

76 Id. at 263-264.

law, however, the precautionary approach has largely prevailed; the consensus is that Beauharnais is no longer good law.77

2.4.3. Due process

We have seen, in the law of due process, a precautionary principle against the risk of biased judgment by adjudicators with a personal financial stake in the controversy, even an indirect one.78 By contrast, the risk of bias that arises from combination of investigative, prosecutorial, and adjudicative functions in the same hands is remitted to case-by-case assessment and ex post protection. In Withrow v. Larkin,79 the Court upheld a scheme in which a board of physicians was given the authority to investigate and prosecute claims of professional misconduct, and then to adjudicate those claims; the particular case involved proceedings against an abortionist and had more than a whiff of ideological bias to it. The Court refused to apply a precautionary rule against this combination of functions:

[V]arious situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome.... [However, there is] no support for the bald proposition... that agency members who participate in an investigation are disqualified from adjudicating. The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.... [This holding] does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.80

Despite the Court's reference to "risk" in the final sentence, lower court cases have made clear that once a precautionary principle barring the combination of functions is rejected, the complaining party must make a specific showing—"in

77 See, e.g., Anti-Defamation League ofB'Nai B'Rith v. Federal Communications Commission, 403 F.2d 169, 174 n.5 (D.C. Cir. 1969) ("[Fjar from spawning progeny, Beauharnais has been left more and more barren by subsequent First Amendment decisions, to the point where it is now doubtful that the decision still represents the views of the Court.").

78 See Gibson v. Berryhill, 411 U.S. 564 (1973).

79 421 U.S. 35 (1975).

80 Id. at 47, 52, 58.

the case before it", as the Court instructed—that biased judgment has actually materialized.81


Given the arguments for encoding precautions against political risk in constitutional law, and the counterarguments against such principles, what is to be done? Story addressed the question with reference to the political risks posed by standing armies:

Too much precaution often leads to as many difficulties, as too much confidence.... It may be admitted, that standing armies may prove dangerous to the state. But it is equally true, that the want of them may prove dangerous to the state. What then is to be done? The true course is to check the undue exercise of the power, not to withhold it (1833, Vol. 3, 71, 73).

Here, Story in effect argues for a position that considers all relevant risks of all relevant alternatives, including both action and inaction, and then adopts cost-justified precautions in light of those risks. In all this, Story was following a path marked out by Publius. Federalist 41 did not deny the risks of standing armies, but merely argued for balanced risk assessment:

A standing force, therefore, is a dangerous, at the same time that it may be a necessary provision. On the smallest scale it has its inconveniences. On an extensive scale, its consequences may be fatal. On any scale, it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and whilst it does not rashly preclude itself from any resources which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties (Hamilton, Madison & Jay 1961, 257-258) (emphasis added).

Publius and Story here supplied an example of what Hirschman, writing about the political theory of institutional reform, calls the "mature position":

(1) There are dangers and risks in both action and inaction. The risks of both should be canvassed, assessed, and guarded against to the extent possible.

81 See, e.g., Alpha Epsilon Phi Tau Chapter Housing Ass'n v. City of Berkeley, 114 F.3d. 840 (9th Cir. 1997); Valley v. Rapides Parish Sch. Bd., 118 F.3d. 1047 (5th Cir. 1997).

(2) The baneful consequences of either action or inaction can never be known with [certainty] .... When it comes to forecasts of impending mishaps or disasters, it is well to remember the saying Le pire n'est pas toujours sur—the worst is not always sure (to happen) (1991, 153-154).

The mature position is structurally parallel, in the domain of political risks, to the position advanced by critics of precautionary principles in health, safety, and environmental regulation. On this view, given the possibility of countervailing risks, the goal of the designer of a regulatory system should be optimal precautions rather than maximal precautions (Wiener 2002, 1511). The latter may prove an incoherent goal in some domains, because precautions may Q

themselves create risks, and thereby prove self-defeating (Sunstein 2005). The |

mature calculus, then, posits that "[o]ptimal regulation in the face of a target g

risk (TR) and a countervailing risk (CR) would take both seriously and strive to f

maximize their difference (ATR-ACR). Uncertainty is not the crucial pro- |

blem—trade-offs are" (Wiener 2002, 1520). p

The mature position does not necessarily entail cost-benefit analysis, l

depending upon how the latter idea is specified. "Cost-benefit analysis" is a g

protean term82 that can be used to encompass everything from informal con- j

sequentialism—Charles Darwin's list of the pros and cons of marriage (1986, |

443-445)—to a formal, fully monetized analysis of compensating variations .

based on willingness to pay and to accept (Adler & Posner 2006, 166-173). /

When used as a loose synonym for consequentialism, cost-benefit analysis can g

encompass a range of theories about what consequences are relevant and what t

weights to be assigned to them. Although the version of consequentialism that §

underpins formal monetized cost-benefit analysis only attends to consequences r

for subjective welfare, nothing inherent in consequentialism so requires. 1

Violations of rights, somehow defined, may themselves count as bad

quences (Sen 1982, 4-7). What the mature position does point out, however, is 5

that rights may appear on all sides of relevant issues; both the jeopardy and the

perversity arguments emphasize the possibility of rights-rights tradeoffs, with

jeopardy being relevant if different rights are in conflict and perversity being

relevant if the same right appears on both sides of the issue.

Finally, the mature position does not exclude a democratic decision to depart from optimal precautions. Risk regulation, whether at the first-order or second-order level, is only a part of what societies might properly care about; once democratic decision makers have figured out what the optimal precautions are, there is a separate normative question about what to do, in light of

82 See Sen (2001).

that mature risk assessment. What the mature position does exclude, however, is a decision to depart from optimal precautions for the wrong sort of reasons, or on spurious grounds. Although democratic decision makers might adopt a suboptimal set of precautions, they should do so with their eyes open, rather than in the misguided belief that a prudent approach to risk so requires.

3.1 Second-order precautions?

In the risk-regulation debates, one critique of the mature position takes a second-order or indirect-consequentialist form. Although balancing of all relevant risks is the ideal, the argument runs, regulators display predictable cognitive biases and motivational distortions that will cause them to make suboptimal decisions under a balancing approach (Dana 2003, 2010). Regulators may predictably underweight soft or nonquantifiable variables, such as environmental values (Dana 2010, 8-16); may predictably overweight certain costs, as opposed to uncertain ones (id. 17-18); may be excessively optimistic, and thus underestimate the risk that catastrophic harms will occur in the absence of regulation; or may be influenced or politically constrained by self-interested private groups who oppose regulation. Some version of the precautionary principle can compensate for these distortions, and is therefore a pragmatically useful second-best. On these grounds, rule-designers such as legislators and judges might do well, in a long-run and aggregate sense, to embody precautionary principles in statutes or legal doctrines even if such principles would be harmful when applied to constrain the decisions that an ideal regulator would make. In general, second-order or indirectly consequen-tialist arguments for (some version of) the precautionary principle imply that it is not necessarily best for regulators to attempt to weigh all relevant risks, because they will predictably display certain biases in doing so.

Proponents of the mature position in the risk-regulation debates counter that the rule-utilitarian defense of precautions does not escape the core problem of the precautionary principle. Cognitive biases or motivational distortions on the part of decisionmakers are just another type of risk; those biases and distortions can themselves appear on all sides of relevant issues (Sunstein 2005, 51-53). The rule-utilitarian argument, on this rejoinder, replicates the fatally one-sided character of the precautionary principle, just one step removed—in the form of a second-order argument about the capacities of decisionmakers, rather than a first-order argument about the nature of the risks to be regulated.

In one set of examples, the very same bias appears on all sides; this is a second-order version of the perversity critique. If decisionmakers underweigh soft unquantifiable variables, such as environmental values, this need not justify a precautionary principle in favor of regulation, because environmental values

may also be harmed by excessive or misplaced regulation as well as by inadequate regulation. By the very logic of the rule-utilitarian argument, decisionmakers will also underweigh the perverse effects of bad or misplaced regulation on soft variables. Likewise, if decisionmakers are excessively optimistic, the problem is that they may be excessively optimistic about the consequences of regulating as well as the consequences of failing to regulate.

In another set of examples, regulators may display one type of bias that favors inaction or underregulation, but simultaneously display a different type of bias that favors action or overregulation (or vice-versa). As against the argument that regulators underweigh soft variables, for example, it has been argued that "ordinary thinking is actually warped against giving quantitative variables their due weight" (Posner 2007, 403). On this view, decision makers tend to over-weigh vivid narratives and underweigh pallid background facts of a statistical character.83 More generally, given the proliferation of findings and putative findings about cognitive and motivational distortions that have emerged from the heuristics-and-biases program in psychology, it will often be the case that plausible arguments for "systematic bias" can be made on all sides of relevant issues.

A second-order version of the mature position, then, will consider all relevant systematic biases, both for and against regulation, which might afflict front-line decision makers. To be clear, a suitably mature second-order analysis might ultimately conclude that some version of the precautionary principle turns out, in fact, to be the best first-order decision procedure for regulators in a certain domain. This defense of precautionary principles has a perfectly valid theoretical structure; hence it cannot be ruled out, or in, on a priori grounds. Everything depends on what predictable biases and decision making distortions regulators actually display. Yet one cannot justify such a conclusion by pointing in a one-sided fashion to the subset of biases that produce inadequate (or excessive) regulation. First-order precautionary decision-procedures can be justified only by second-order decision making that is itself mature, rather than precautionary.

Structurally parallel points apply, with appropriate modifications, to constitutional law. I will confine myself to one example, the argument that anticipated political pathologies call for clear and strictly enforced rules of content neutrality and viewpoint neutrality in free speech law. The judges fear that in future periods of political pathology, cognitive biases or political pressures will cause their successors on the bench, or their future selves, to override free-speech protections; hence they attempt to precommit to a clear and rigid rule to

83 See Tversky & Kahneman (1974, 1127-1128).

compensate for the anticipated pathologies. This argument has the structure of the rule-utilitarian argument for precautions.

The parallel problem, however, is that pathologies can appear on all sides of the relevant issues. In particular, the rulemakers—here judges who craft free speech doctrine—may themselves display a pathological fear of succumbing to pathological fear, a kind of phobophobia.84 If so, they will prove pathologically unwilling to bend or break the rules and will decline to craft standards or exceptions that allow the rules to be overridden, even where such exceptions are socially desirable, all things considered. To make things worse, if the judges' phobophobia produces a series of decisions that are so publicly unacceptable as to produce widespread disrespect for free speech protection, then the pathological perspective may prove self-defeating; the judges' concern for protecting free speech in the long run may undermine free speech in the long run.

3.2 Mature institutions and the allocation of decision making competence

The mature position implies that the institutional system set up to design a new constitution, and the institutional system for interpreting and enforcing the constitution once it is in place, should take into account all relevant risks, on all sides of relevant questions. That implication is pitched at a high level of generality; it is thus consistent with a wide range of allocations of decision making competence across institutions.

To continue the last example, which institution(s) should be charged with considering all relevant risks of protecting or discouraging dangerous political speech, of the sort at issue in the Dennis case? Learned Hand's cost-benefit test assumes that the judges should take all relevant risks into account, both the risks of prohibition and the time-discounted risks of failing to prohibit. Yet there is nothing inevitable about allocating this task to the judges, even if one subscribes to the mature position. Another possibility is that the judges should defer to the congressional judgment, embodied in the challenged statutes, that one set of risks outweighs the other. On this approach, a standard critique of Dennis— that it was too deferential to nonjudicial actors85—might get things backwards. Insofar as Hand's test assumes that judges should make an independent assessment of risks and choose optimal precautions, it allocates to the judiciary a power that might be better left in legislative hands.

Nothing in the mature position, of course, entails that a deferential approach in Dennis would indeed be superior. Whether that alternative is in fact superior or not will depend upon judgments, largely empirical and predictive, about the

84 See Tushnet (2011).

85 See, e.g., Baker (1992, 26).

motivations and epistemic capacities of officials in different institutions. Moreover, there are many possible ways to allocate the competence to assess political risks across institutions. Courts, for example, might be empowered to issue a constitutional decision that the legislature can then override, perhaps through special procedures or with special majorities—the sort of "weak-form judicial review" seen in many constitutional democracies (Tushnet 2006). All this implicates a well-known set of debates about how a system of judicial review should be designed,86 debates that the mature position, by itself, cannot resolve. What the mature position adds is the caution that arguments for any particular allocation of competence to assess political risks should attend to the risks generated by constitutional precautions as well as the risks prevented by them.

3.3 The negative function of the mature position

Given all this, the mature position may seem a rather thin or even banal commitment; who can be opposed in principle to weighing all relevant risks? And if the mature position need have no particular implications for the allocation of competence to assess risks across institutions within the constitutional system, what turns on accepting or rejecting it? o

I believe, however, that the mature position has an important negative function, both in the domain of ordinary regulation and in the domain of constitutional design and interpretation: it places tradeoffs on the "viewscreen" (Sunstein 2005, 118) and thereby excludes unconstrained demands for "maximal safety" or "security" against perceived risks. Proponents of the mature position in risk regulation call this a cognitive justification (id. 129). I prefer to emphasize its negative character as a filter that strains out certain types of bad arguments—an approach that does not dictate any particular outcomes, but merely attempts to launder the inputs to decision making and thereby improve the process of regulating (political) risks.87

In the domain of ordinary regulation, "availability cascades" based on highly salient risks can produce distorted regulation that focuses to excess on target risks while ignoring countervailing risks (Kuran & Sunstein 1999). A similar problem arises in the constitutional domain. Episodes of constitution-making often take place after, and in part because of, the occurrence of a highly salient political risk or a highly salient class of political abuses. Under such

86 For references and a position in these debates, see Vermeule (2006a, 2009).

87 Cf. Elster (forthcoming), which argues that the main task of institutional design should be the negative one of weeding out self-interest, passion, prejudice and bias, rather than the positive one of producing good outcomes.

circumstances, a kind of constitutional availability cascade can occur: the politics of distrust, the hermeneutics of suspicion and the spread of a paranoid political style (Hofstadter 1964) can produce ever-more stringent demands for constitutional provisions and structures that will protect the citizenry from recent and highly lurid forms of political risk or abuse, even if the precautions that are demanded would be rejected by any decision procedure that is even mildly sensitive to countervailing risks and collateral costs.88

Under such circumstances, the mature position may help to serve as a valuable intellectual corrective, by placing all relevant risks before constitutional designers, constitutional interpreters, and the public who ultimately judges both. The central place of the mature position in Publius' argument is an encouraging example. It shows that at least sometimes, the mature position may even carry the day against widespread, obsessive fears ofparticular political risks, such as the abolition of the states, tyranny and despotism, an oligarchy of elected representatives, or standing armies—the sort of fears that afflicted the Antifederalists.

To be sure, where constitutional politics reaches a fever-pitch of suspicion, it may be that no set of arguments, and indeed no set of institutions, can prevent distorted constitutional regulation of political risks. Yet under imaginable political conditions, the rationality of the mature position—in a broad rather than technical sense of "rationality"—can have outsized influence. If, for example, different groups are obsessed by different target risks, then (under certain voting rules for the adoption of a new constitution) a small subset of mature and balanced risk assessors who attend to countervailing risks can have outsized influence on outcomes, by providing decisive votes for provisions that take optimal rather than "maximal" or distorted precautions—a kind of "miracle of aggregation" (Converse 1990, 385) at the stage of constitution-making. This is merely a possibility. The larger point, however, it that it is hard to see how the constitution-making process can go worse overall if there are at least some public voices for the mature position.


If constitutions can be understood, justified and criticized as more or less successful devices for regulating political risks, then the modern theory of risk regulation may have useful insights to offer to constitutional law and theory. I have attempted to draw out one thread from the risk-regulation debates—the

88 For classic exposes of the paranoid political style in the founding era, particularly among the Antifederalists, see Bailyn (1967) and Kenyon (2002).

debate over precautionary principles of regulation—and argued that constitution-making in the USA, and its accompanying theory, display a structurally parallel debate over precautionary principles of constitutionalism. Such principles attempt to guard against or even minimize particular political risks, such as the "abuse of power" or "tyranny" particularly feared in the founding era. From their inception, however, constitutional precautionary principles have faced critiques based on futility, jeopardy and perversity—in modern terms, based on tradeoffs between and among multiple political risks, whether on the same dimension or on other dimensions. In light of these critiques, constitutional theorists and judges such as Story and Jackson developed a mature position that in effect calls for balanced assessment of target risks and countervailing risks. The public articulation of that mature position is no panacea for the paranoid political style that sometimes crops up in episodes of constitution-making, but it can hardly make things worse, and under imaginable conditions might even make the process of constitution-making better.


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