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Notes -
With legislative supermajorities. If you can get 51% agreement on something, good for you, but there's no reason to expect that to bind others once a slight shift of political winds leaves you at 49%. But if you can get 60% (or 67%?)? That might be something worth hanging on to for longer, if it's not so soundly refuted that support drops to 40% (or 33%).
Why? If you have supermajority agreement on something, you don’t need a special mechanism to protect it - no government has attempted to legalise murder or indentured servitude for small children.
If you don’t, if it falls beneath 50%, why should the fact that 60% of people thought policy X was a good idea 10 years ago prevent it from being dropped when those people change their minds?
Technically, because a little hysteresis is beneficial in any case where a continuous (and worse: continuous plus noisy) input is used to determine a discrete output where switching between outputs is costly. We wouldn't even consider using a keyboard without a "debounce" filter; it might be reasonable to consider using a government with one.
Politically, for the same reason as we have a supermajority requirement for Constitutional amendments - to permit governments to, slightly, bind the hands of their successors. In the case of binding commitments it would also be sufficient to simply have a population who were mostly able to avoid hitting "defect" first in an iterated Prisoner's Dilemma, but here we are.
At least we're getting better. We had a government that legalized slavery for small children for nearly a century, yet now the thought of something similar happening again is worthy of use as a reductio ad absurdum. Maybe that's the paradox you're pointing out, though? The distance from "we should amend the Constitution to prevent voters from legalizing slavery" to "we can't imagine voters legalizing slavery" wasn't too great. Perhaps it's pointless to speculate about amending the Constitution to force voters to not make any game-theoretic screwups, if we couldn't actually get such an amendment through until we practically have an electorate who wouldn't screw up regardless.
Agree with you re: hysteresis.
Dubious on the supermajority requirement for political reasons. Bear in mind that I'm not writing from an American perspective here, but I'm dubious about the concept of a constitution and amendments. Partly because I'm not sure it's healthy for political life to move from "I believe that free speech of this form is good because..." to legalistic arguments about "The first amendment says...". Partly because the supermajority requirements seem both too strict and too loose: anything about 50% seems so strict that it's very rare to reach and yet precisely because it's so rare you basically only have to get supermajority agreement once and then everyone has to live with whatever wacky idea you had for generations.
I admit that my "60%? 66%?" bit was partly a crack at the subtly different levels needed to ratify this or end a filibuster over that, but was partly just an admission of ignorance as to what the "right" level to require would be. My ideas here aren't quite graduating to the status of "brainstorming" vs just "spitballing".
New spitball: we could probably push the arbitrariness back a step, as well as avoiding being too stuck on an outcome from a singularly bad era, by by just requiring anything that overrides an old law to have half the margin that the old law passed by. They got 66%? You need 58% to undo it. Only 60%? You just need 55%. The smaller margins should be much less rare than the larger ones, but still rare enough to make planning for the future less capricious.
I would only want something like that in concert with a "House of Repeals", though, an institution that could only initiate bills to repeal old laws, not to add new ones, because otherwise it would also end up reinforcing the existing "hysteresis of laziness" problem where laws linger long past obsolescence only because lawmakers have little incentive to prune them.
Yeah. XKCD famously mocked the "it's not illegal for me to say this, so hooray for me" line of reasoning once or twice, but the converse of "freedom of speech is all about what the government can do and so my attempts to squelch it privately are just fine" is pretty awful too.
But this feels like a mirror of the US founding fathers' arguments. In that case, the Federalist fear of "a Bill of Rights will be used as an excuse to deny the limitations on power in the body of the Constitution" and the anti-Federalist fear of "those implicit limitations will be easy to overreach so even redundant explicit limitations on the most important types of overreach" turned out to both be true, and so in hindsight the anti-Federalist position was least bad. Even if without a Bill of Rights we might have taken longer to get to the point where legal precedent says "the Constitution says the feds can do anything they want, Madison just misspelled that as 'commerce' for some reason", we'd still have gotten to that point, and then that would have been the end of their limitations entirely.
Similarly, it sucks that some people think the First Amendment is the be-all and end-all of free speech, but I have trouble imagining that the same people would have otherwise become principled defenders of unrestricted public debate. I think they hammer on "The first amendment says" primarily because it's literally the most authoritarian position they can take without freaking people out by outright saying they want to weaken the Bill of Rights. Take away that Schelling point and most of them would just take even more authoritarian positions with less opposition.
What I mean isn’t really that “what the first amendment allows” becomes the definition of free speech.
It’s that turning politics into law distorts politics and degrades law. On the one hand nominal proponents of free speech (as an example) forget why they care about it and how to argue for it because they get used to just saying “First Amendment rights, bitch”. On the other hand, it means that actual meaningful discussion of what these rights ought to be get distorted into legal wrangling about how to interpret legal documents; these being matters of high impact, this means increasing politicisation of legal appointments and blatant distortion of the law on both sides (abortion rights, gun control etc. on the left and now birthright citizenship etc. on the right). As an outsider, it doesn’t look healthy.
Britain has historically operated on a ‘whatever parliament says, goes’ basis, softened but not constrainted by historical convention. We moved to a more rights-based system in the last few decades due to importing European human rights law, and it’s having exactly the kind of distortion art effect I describe above.
That's a very good point. We try to make 66% or whatever the de jure floor for "overturn this rule", but if the median voter is tempted enough or unprincipled enough then 51% remains de facto sufficient for "wilfully misinterpret this rule and get away with it".
Right, exactly. Which in turn breeds disrespect for load-bearing parts of society.
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