0:33 Intro. [Recording date: February 13, 2013.] Russ: I expect we'll talk about a variety of subjects today, but I want to start with a recent piece you wrote for USA Today, "A Revolution in the Works?" There's a question mark at the end of that title. You're suggesting the possibility of fundamental political change in the United States. What kind of change are you imagining, and what evidence do you see for that change? Guest: Well, you know, in the words of Han Solo: I don't know. I can imagine an awful lot. What triggered the column is a poll from the Pew [Pew Research Center] people which showed that more than half of Americans view the government as a threat to their freedom. And what's especially interesting about the Pew poll is it's not just--you'd think obviously Republicans and gun owners are going to be unhappy with the Democratic Administration's proposing gun control--but actually 38% of Democrats, which is rather a lot, and 45% of non-gun-owners shared this view of the government as a threat. So, it's a pretty large number. And then you've got a Rasmussen poll from last fall that said that only 22% of likely voters think that America's government has the consent of the governed. Well, that's pretty drastic. And then, I didn't really mention this in the column, but the other thing that's troubling is that we've seen a number of polls that the only really respected institution in our society is the military. And, call me crazy, but in a democracy where people see the government as a threat to their freedoms and don't think it has the consent of the governed, but do respect the military a lot, that seems to me to be sort of an unstable and unfortunate combination. Russ: I agree. Although you suggest--you provide evidence that there's some broad-based anxiety about threatening the government. I wonder how deep that is. Guest: Well, it's hard to say. One response that I've seen some people make to the Pew poll is, really, you don't trust the government and you don't respect these politicians, but you keep electing these people; what's the hell is wrong with you? And that's a fair critique, right? If a majority of Americans think the government is a threat to their freedom, how come they re-elected the vast majority of incumbents? Russ: Which they regularly do. Guest: But, you know, the response to that I think is to say: They are not actually presented a choice of voting for somebody who would fundamentally change the system in that way. There's nobody who says--outside of a small number of Tea Party candidates, who sometimes win--but there's sort of no mainstream Democrat or Republican who says: I'm going to shrink the government down to 1910 levels and then you won't have to be scared of it any more. So, the point is basically a case of choosing your poison. It's not as if voting Democrat or Republican makes that big a difference. Russ: Do you really think, though, that that trend, that there isn't--don't you think that's a long-standing trend in American history, that they don't trust the government? I think if you ask folks if they trust their own representative in Congress, they say: Congress is a bunch of bums, but not my guy. And they also say the same thing about [?] corporations: My boss is decent; most of them, awful. Isn't that a common long-standing view of most Americans? Guest: To some degree, sure. Our country is literally founded on distrust of government. But Pew does say that the numbers are the worst they've been since they've been asking the question. So, the trend is not our friend. Trust in the Federal Government is at a historic low. And they say it's the first time a majority of the public has said the Federal Government threatens their personal rights and freedoms. So I do think there is more than what I would regard as a healthy distrust of government. I think that it goes a bit beyond that. And I think one of the changes--in the column I quoted a science fiction writer named Jerry Pournelle, pretty old, he's been around a while; and he wrote in 2008, he said: We have always known that eternal vigilance is the price of freedom. It's worse now, because capture of government is so much more important than it once was. There was a time when there was enough freedom that it hardly mattered which brand of crooks ran government. That has not been true for a long time—not during most of your lifetimes, and for much of mine—and it will probably never be true again. And I think that is the reason why distrust in the government is so profound. Now people realize that if the wrong people are in power, they can really screw with you. The government's got a lot of power; it's got a lot of reach; it does a lot of things. And it's no longer a case of the old Chinese proverb: Heaven is high and the emperor is far away. The government is in your face. And, the more powerful the government becomes, the more valuable and prized it is, so the more dirty and underhanded things people are willing to do in order to seize the prize. And the more afraid they become when somebody else has control. So, all of that I think contributes to a rational increase in fear of government that is independent of just a general sense that it's a bunch of politicians who would sell out their own grandmother. Russ: Well, government is certainly more powerful than it was 50 years ago. But do you think, in particular, it's things like the drone activity, or the Troubled Asset Relief (TARP) bailouts--just to pick two that I find particularly unpleasant that are causing people to be worried about threats to their personal freedom? Guest: Well, I think there's a lot of that. Sure. You had the growth of a surveillance state, which at one level was inevitable, and at another level you can say really existed in the 1990s, as it did. But people are much more aware of it, and it's become much more intrusive. And the other side of it is, when you look at stuff like the TARP bailout, I do think there was a sense at one point that there were things the country just wouldn't stand for, that politicians would be afraid to do. And I think now that we've seen hundreds of billions of dollars essentially handed to political cronies, people realize, you know, there's really not that much that they'd stop at.

7:27 Russ: My listeners know, I'm particularly worried about this trend. But I do see some swinging back against that trend. Right? I think giving money to cronies is slightly out of fashion. It's gotten a little harder maybe than it was before. But that's an empirical question, I suppose. Guest: Yeah, I'd like to believe that. Russ: We'll see. It's hard to know. I'd rather not see. But we may, unfortunately. Now, you propose some solutions to this trust problem and this fear of threat. And your first--I have to say it because it's in the piece--I'll try to say it with a straight face: We just need to elect people who are trustworthy. And a lot of people feel that way, I think. Guest: Right. That would work out great. The problem with that is that there aren't any politicians that everyone trusts. And, as I say in the piece, if we did have somebody that everyone trusts, the odds would be good that that trust would just be misplaced. And that would mean that we've found somebody who is really good at fooling us. Russ: My professor the late George Stigler used to call it the Ralph Nader theory of regulation: you just need the right people involved. So, all the agencies that have been captured and serve the special interests rather than the general public are just run by bad people; we just need to get the good people in. Of course, good people become bad people when they are facing the same incentives as everybody before them. Guest: My position is more like Milton Friedman's, unsurprisingly, who said what we really want is a system that has incentives such that even the bad people will behave well. Russ: Yeah. That's a beautiful quote. I love that. So, that's the challenge. So, your second solution is to reduce the power of government. Guest: Yes. Russ: And is that going to work? Guest: Oh, I think that absolutely would work. I just think that it's hard to do because--well, you've probably seen the movie Blazing Saddles. Russ: Yes, I have. Guest: And there is a scene in it--which I regard as one of the most powerful metaphors for our political situation every produced--and it's the one where Mel Brooks, playing Governor Le Petomane, has all his cronies around a big conference table and he says: Gentlemen, we've got to protect our phony-baloney jobs. And the problem with making the government smaller is it threatens a lot of people's phony-baloney jobs. I think it's a mistake that a lot of economists make--not just economists but a lot of other critics of government--to think that the only question is just sort of money. I think the other issue that people guard almost as vigorously, and maybe more vigorously, is the non-monetary economy of self-importance. Russ: Oh, yeah. Guest: Which I think for politicians is really what drives them more than anything else. I think the sense of being a big man. There's actually a great story called Clockers, which is about drug dealers. And it explains that the most important reward of being a low-level drug dealer isn't really the money--because actually you don't make that much money for all the risks you take. But it's that when you walk into a room full of druggies, everybody's face lights up because they are happy to see you and you are an important person and respected in their lives. And that's why you'll do it, even though you may not make any more money than at McDonald's. I think for politicians, they are basically just like drug dealers only more so. Some of them don't even--I was shocked when Bob Menendez had to cough up the money for those private jet trips. It was a big chunk of his net worth. He's not that rich. He's getting his rewards in non-monetary form. There's a lot of ego boost to it. And I think that a big, powerful government makes politicians, and not only politicians, and not only bureaucrats, but also journalists and the people that cover them, feel more important. Journalists seem to always sort of slant in favor of bigger government. And you sort of wonder why. Because they are often critics of particular things the government does. Russ: Correct. Guest: But they are sort of cheerleaders for big government in general. And I think it's because if you cover the government, the more important the government is, the bigger and more important you are. Russ: Yeah, there's some truth to that. I certainly agree that the political establishment as you describe in your piece are going to fight very hard against making government smaller. But they have the natural ally of those who think government ought to be bigger because they think that makes the world a better place. So, it's a classic bootlegger and Baptist coalition--one group that has the moral high ground--those are the people who think that bigger government helps the children, or the elderly, or stimulates the economy. And then you have the people who like living in that world--the economists and politicians and others who get to play with the levers of power and get people to pay attention to them because they are powerful. And that's a pretty powerful--those two combined, we're not doing such a good job against them. Guest: It's funny--one of my friends, who has been a long-term, upper level bureaucrat in Washington said to me his favorite phenomenon to see is these people coming through these usually politically-appointed jobs and, he says: They think everybody loves them. And then they leave the job and they realize that everybody just loved the job. And that once they are not in the job any more they realize they don't have nearly as many friends as they thought they did. The smarter ones do know this. And that's why so many[?] hang onto power. Russ: Someone once told me--I may have told this story before. It always bears retelling. Someone got a job at an influential position at a very large foundation, the ability to hand out large sums of money. Which of course politicians share that opportunity. And when he was thinking of taking the job, his friend told him: Congratulations; you'll never have to pay for dinner again; and you'll never get an honest compliment. And that's what politicians, I think--that's the world they live in. They do pay for dinner now and then. But they are loved because of their ability to command resources. And it's, for some people, very pleasant. Guest: I think it's actually for a lot of people it is addictive. And I actually mean that in the most literal sense. I think that people are addicted to the dopamine rush they get from feeling really important. It's interesting--they were talking about why Frank Lautenberg might run for another term, at least in 1989, having trouble deciding to retire from the Senate. But if you look at these guys, they last in those jobs for a long time, but usually they retire and they go down pretty fast. Once they don't have all that emotional gratification. So, I think people really like it.

14:20 Russ: No doubt. So, given those two realities, that it's hard to imagine electing trustworthy people, and it's challenging to get government smaller, what's going to stop this trend toward bigger, more powerful government? How are we going to reverse it if the people in power are going to fight it, and there's a lot of people who support the growth of government? Guest: Well, the big ally of this is Stein's Law. Herbert Stein said--and I really think this is the quote for the current decade: Something that can't go on forever won't. The current trend can't go on forever. The Federal Government is fundamentally broke, although in denial, and able to make[?] it out for a while. The path of increasing the path and power of government is fundamentally unsustainable. And it's always funny to me that the people who go on the most about sustainability in other areas seem the least concerned about sustainability when it comes to things like government and spending. But that means that something that can't go on forever, won't, won't go on forever. The question is sort of what comes next. And there are a lot of different possibilities, ranging anywhere from civil war and a military coup--which I think is not especially likely but it's probably more likely than it's been in my lifetime, given those poll numbers we started out talking about. I think those are warning signs we should[?] be scared of that. To sort of a hard economic collapse and a Federal Government that goes broke--certainly has not been unthinkable in lots of other countries when the government goes broke, which is actually to shrink and cut back and do less. To a softer landing, and possibly to a situation in which the people, who are right now unhappy, distrustful, think the government doesn't have the consent of the governed, but not least because of the efforts of the political class--not having those feelings crystalizes any particular plan of action, suddenly crystalize. And at that point I think you might see something like a Constitutional Convention. And I know Randy Barnett favors that. A lot of people favor that. I am not as strongly in favor of that as they are. But I am not as scared of it as some people are, either. I think ultimately anything you do has to pass 3/4 of the state legislatures. And although, you know, some dumb Constitutional Amendments have managed to clear that hurdle, it's pretty hard. Russ: How would a Constitutional Convention--for those of us who don't remember the first one; I don't mean to suggest that you do, but you know a little bit more about it. What would be the logistics of a Constitutional Convention? We've had one. What would a second one--what are the rules of the game? Guest: That's actually an interesting question. The way it would work is that Congress calls it, which it can do on its own but which it most likely would only do when forced to by getting calls from 3/4 of the state legislatures. Once you do that, delegates are elected from each state, and they go to the Constitutional Convention, where they produce whatever amendments they want. Which could be minor changes or which could be an entire new Constitution. Followed by sending those out for ratification to the states. And they bypass Congress, on the Convention route. The Convention route was put into the Constitution because the framers figured that Congress would be unlikely to approve Constitutional Amendments that reduced its power. And it never has. Russ: They were onto something, weren't they? Guest: Yeah, they were. So, they wanted a bypass route, and the Convention method is that. Now what's kept the Convention from happening in the past is whenever it looks like a Convention is going to be called, Congress generally gives ground and proposes an amendment that satisfies the main complaint. And that's pretty good. As I say, the value of the Sword of Damocles is that it hangs. Not that it falls. And the threat of a Convention is often enough to spur something less. But if you really believe that the whole system is broken, then maybe what you want to do is start over. Russ: So, how would that actually--you've got 100, whatever it is--is it 50 states only get delegates? Guest: Yeah, the states get delegates. Russ: District of Columbia doesn't? Guest: I don't know about that. Russ: Okay. But there's 100 or so people hanging around. Guest: The state delegations would be elected, and once it is completed it goes back and gets ratified in the states, which actually could be by state legislatures or could be by specially-elected conventions in the states. Russ: But there are no rules for how that Convention is going to be run. So there could be a group of people who say we have to start from scratch. Could be a group of people who say there's just one amendment that's crucial. And there could be another group that say we need 50 or 60 amendments, we're in such bad shape. Guest: Right. And that's exactly how the First Constitutional Convention went. There was not a lot of thought--at least not publicly expressed--to the idea of starting from scratch. They were going to just clean up the Article of Confederation somewhat. As it turned out they did a lot more. Russ: So, let's say we going to unradical route of a Convention that proposes a certain number of amendments. Those would go back to the states; some of them might pass, some of them might not. The Constitution would be amended and that would be the end of it. Right? Guest: Right.

20:03 Russ: So, given this mood in the country that you've talked about, what amendments might emerge from something like that that would change the malaise that we have about our political system. It's not obvious to me what those might be. Have you thought about that at all? Guest: That's sort of hard to say, and the reason is, in fact, as I say, there's a lot of malaise, there's a lot of general dissatisfaction, but it hasn't crystalized into a program. And indeed, I think one of the great ongoing efforts by the political class is to make sure that doesn't happen. And to keep people sufficiently divided and distracted that no matter how generally unhappy they are, it doesn't turn into any concrete plan that threatens the political class. Now, I've made some proposals of my own. Harvard Law School had a conference on Constitutional Conventions last fall, and it was very interesting. Larry Lessig put it together with the Tea Party group, the Tea Party Patriots, and Move On. It was a very interesting cross section. It's surprising how well people got along. But a couple of proposals I've had are, Number One, you might call it the no representation without taxation proposal; it would essentially be a uniformity requirement that everybody has to pay taxes. Such that you don't have a substantial class of people who get benefits but don't kick in. And if I were starting from scratch I would require that everybody pay a significant enough percentage of their income that it hurt. No matter what the income level is. And that that go up and down every year as Federal spending goes up and down. And I think that would provide an amazing amount of discipline. All you have to do is look at how much resistance there is to even minor increases in things like local property or sales taxes, that voters feel very directly, compared with the way deficit spending let the Federal Government sort of spend and not have to face the political backlash. Russ: Along those lines, one of my favorite policy changes would be to get rid of the fake wall between payroll taxes and income taxes. Because I think a lot of people don't perceive their payroll taxes--half of them are paid by their employer, at least on paper, probably coming out of their own paycheck, but most of us don't see that directly so we don't notice it. And then so many people then don't pay any income tax right now. I just saw the statistic recently that a family of four, husband, wife, and 2 children, who earn $51,000--and this may now be a different number--exempts you from income tax. Now it's true you still pay payroll tax if you are employed. But that doesn't seem like it's good for democracy to me. Guest: No, I agree. And I think that's one of the important things that really ought to be controlled. Again, my goal is to create things that regulate based on political pressure, sort of following the Milton Friedman approach rather than the Nader approach, and I think that's a good one. Something I'm a little more agnostic about, because I suspect people could get around it, are things like a balanced budget amendment. We had a whole bunch of balanced budget amendment proposals, but if you actually read most of them, they tend not to have a lot of teeth. They've usually got a lot of loopholes, exceptions: if there's a military conflict, which there usually is-- Russ: always is-- Guest: [?] a majority that isn't really big to waive them. Or whatever. So, they're not very good. I'm not against it, but I don't think it helps. I'm also pretty much agnostic on term limits. I used to be opposed to them. And as I see how effective gerrymandering is, which I think is one of the reasons people hate Congress but love their Congressmen, or at least tolerate their Congressmen, because of gerrymandering, I think that's something that is difficult to deal with and probably wouldn't be helped that much by term limits. If you've got a gerrymandered district, especially with modern gerrymandering technology, the new guy who gets elected in it is likely to look an awful lot like the old guy because the district is so one-dimensional. Russ: I think part of the problem you pointed to earlier, which is that you ask why we keep electing people that we don't seem to respect. One answer is we respect ours but not the others. But even for those of us who don't like ours, which would be me, it's sort of the nature of the system. Once you have a system that says this group has the ability to pass laws that affect lots of people and you can't opt out of them--can't opt out of Social Security, got to pay property taxes even though you don't send your kid to the public school, etc., etc.--by definition almost, not definition, the incentives are such that the median voter model, the Hotelling model, the models that look at political choice--if you only have two candidates they are going to push toward the middle. And anyone else is going to be pretty unhappy when it's over. Guest: You don't really have two candidates. Because in the gerrymandered district-- Russ: Well, that's true. Guest: For example, in my district we have a guy--and I like him okay because he's a Republican but he's about as Libertarian as Republicans who are likely to get elected--he's okay. I don't hate him. But my wife managed a Libertarian campaign against him, back in 1996, and the Libertarian candidate I think ended up getting more votes than the Democrat who ran against him, who was just a local activist with no money. And that's sort of typical to how it is. There's always--my Congressman, Jimmy Duncan, who has the same seat his father had and I think his grandfather had, basically runs effectively unopposed every time. And so when people say, You shouldn't keep re-electing these people--what's the alternative, really? And there are a lot of districts like that. Probably half the Congressional districts in the country are that way. One way or another. I mean, maybe they've got Sheila Jackson Lee in them instead of Jimmy Duncan, but still they're not really open. I think I would be very happy to entertain a Constitutional Amendment that would limit gerrymandering, but short of making Members of Congress at-large, I don't really know how you do that. It's a curious thing that now we see more turnover in the Senate, which the Framers thought was going to be sort of the long-serving, aristocratic house than we do in the House of Representatives. Because of gerrymandering people can stay there for a long, long time, and unless the state changes its complexion enough that you get redistricting, there just isn't much of a threat. Russ: I raise it because, when you think of a Constitutional Convention, one of the things you think about is changes in the actual structure of governance, right? We could move to a parliamentary system. I don't think Americans have much taste for that, but you could imagine at least things like the Electoral College being eliminated. Other things--maybe Congress wouldn't have the same term length; maybe there would be term limits or not. But maybe you could change the length of the terms. You could change the Senate and the House. Do you think anything like that could possibly happen? Guest: Yeah. I do. And in fact I have a proposal along those lines of my own. It wasn't original with me. But it is to create a third house of Congress, which I call a House of Repeal, in which people run for election in which their only power is to repeal laws. And if that one house repeals a law, that law is repealed. And when you go before the voters every two or four years or whatever term you choose for it, the only thing you've got to run on is which laws you struck down. Because right now, one reason why we've got growth of big government is there is literally nobody in the government with an institutional incentive to shrink government. Courts can strike down laws as unconstitutional, and they do sometimes, but it doesn't do anything for them institutionally to do so. The other two branches are all about making government bigger. And everybody runs for election and tells voters what they are going to do for them; it would be nice if we could have somebody run for election and tell voters what they are going to undo for them.

28:35 Russ: That brings me back to my previous point: While there is, I think, a lot of distrust of government, your view I think and mine are very much in the minority. I think most people are happy the government is bigger. They may not like this piece or that piece--they don't like the drones or they don't like the bailouts or they don't like the Transportation Safety Authority (TSA) making me take off my shoes. But if you ask them: Do you want to keep Social Security? Do you want to keep Medicare? Do you want to keep a strong military presence generally? There's a big, giant consensus for those large projects of government. So isn't our real challenge to get more people to join our views? Guest: Well, I think it cuts both ways. I think actually one of the reasons people that is that's all we talk about. Again, everything you hear from a politician is what new law they are going to pass, what new program they are going to start to make things better. If you heard other politicians talk about getting rid of things to make things better, and if people were running campaign commercials about that, I think attitudes might very well shift to follow that as well. Russ: It's a cheerful thought. I like that. I wish it were true. Could be. Guest: I'd like to find out. Russ: Yeah, I would, too. Right now it doesn't happen very often, so it suggests it is not a good position to sell to the voters. I'm interested in a project to try to find ways to make that more appealing. Guest: I think part of it is you want to have your ducks in a row for when the opportunity presents itself. And the Obama Presidency is I think proof of that. Ten, fifteen years ago we seemed to have a neo-liberal consensus that the era of big government was over, and all of that. And the people who didn't think that just basically hung around and waited until we had a combination of an economic crisis and an open presidential seat, and the Republican Party, that had overstayed its time and lost its mojo; and they swept in and they just started doing stuff. And one of the things that is both cheering and troubling to me is that a lot of the stuff they are doing is stuff they never would have been elected to do if they'd sold it in 2008. But now that they're in, people kind of go along. The cheering part of that is I think that works the other way, too. Russ: I can imagine a candidate--I'm not sure what that person's name is, but one could imagine a candidate who could galvanize support for smaller government. Although the ones who claim to be that candidate in our lifetime actually presided over larger government--so-called conservatives like Ronald Reagan-- Guest: Well, nobody's ever presided over smaller government in my lifetime. Russ: No, they haven't.

31:16 Russ: I want to shift gears. Related, though. We had a recent guest on the program, Louis Michael Seidman, and he suggested the Constitution is out of date. It makes us beholden to a group of dead people who lived over 200 years ago, and we should just ignore it--unless something in it makes sense. Like, if you happen to be a defender of the Second Amendment, which is nice, who wouldn't get rid of that? Or the First Amendment, he likes that one, too. But basically we should keep good laws and get rid of bad ones, keep good practices, get rid of bad ones. You just avoid the Constitutional Convention altogether. You just stop using the Constitution. Guest: I call this the Raj Koothrappali approach to Constitutional law. I don't know if you watch "Big Bang Theory." Russ: I don't. Guest: Raj--is Indian, of course--and he's lecturing his sister from India on Hindu rules about modesty and sexual propriety. And she just looks at him and says: You are talking to me about this as you are eating a cheeseburger. And he just looks at her and says: Some of it makes sense; some of it is crazy; what do you do? And that's basically the Seidman approach to the Constitution, right? The parts he likes makes sense and the others are crazy; what do you do? Here's the problem with public officials--because that's really his audience--deciding to ignore the Constitution. If you are the President, if you are a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say instead of horse-whipping you out of town for your impertinence is because you exercise power via the Constitution. If the Constitution doesn't count, you don't have any legitimate power. You are a thief, a brigand, an officiant busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don't possess. So, if you are going to--if we are going to start ignoring the Constitution, I'm fine with that; the first part I'm going to start ignoring is I have to do whatever they say. Russ: But his argument is that we already ignore the Constitution. It's not really much of a binding document. Guest: Oh, well then I'm free to do whatever I want. And actually, that is a damning admission. Because what that really says is: If you believe Seidman's argument, if you believe that we already ignore the Constitution anyway is that in fact the government rules by sheer naked force and nothing else. If that's what you believe, all this talk of revolution suddenly doesn't seem so crazy and seems almost mandatory. Russ: Well, he would say--I won't speak for him, but some would say that there's a social contract; we've all agreed to kind of play by these rules of-- Guest: Oh, really? Russ: electing officials and-- Guest: Wait. The rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That's my social contract. Russ: And so, would you propose to--what's your answer to his point that we don't pay attention to it and we just indulge our prejudices anyway. At the Supreme Court level. His argument is that the Supreme Court really doesn't use the Constitution. If they think it's a good law they just find something, they find a penumbra if they have to, a subtlety if it wasn't obvious; and if they don't like it they find a reason to strike it down. Guest: Well, that's just one [?] legal realism. There's a certain amount of truth to it. I wrote a piece back 20 years ago in the Columbia Law Review called "Chaos and the Court," in which I used chaos theory to argue that something made up of 9 individuals with different views could never use coherent and consistent rules over any period of time. Which I think is true. That's not the same as saying we should deliberately ignore the Constitution and just do what we want. Call me crazy, but I'm pretty sure that whenever somebody writes a piece in the New York Times saying we should ignore the Constitution and do what we want, it's, again, they want more government and more power. And I'm not inclined to play along. Again, the only reason why I have to listen to anything any of these people say is twofold. One is if they've got a gun and the other is that the Constitution says I should listen. Only one of those isn't vitiated if I don't just get a bigger gun. Russ: Yeah, it's true.

35:25 Russ: Let me ask you, for those of us who think that the Constitution has been ignored--in one direction, which is the direction of it's supposed to restrain government. It's not been very effective at it. I've argued, when I had Professor Seidman on the program, that we need to go in the other direction. It's true, I agree; we do ignore it most of the time; we should honor it. What are the prospects for that? One view says--not one view, my view; your view probably--is that we want a smaller government. Why don't we just honor the Constitution? And I think the answer is, since most people don't want it, they've ignored it. Guest: Yeah. I think one argument is that we are already living in Seidman's world. But actually I'm a little more hopeful than that. One reason is, if you look at some areas, you see real progress. We're currently in a national debate about gun control, for example, but the fact that we're in this national debate and the fact that not much is happening is evidence that we've gone a long way since 1994 when they passed the Assault Weapons Ban. Now that's, they say, pretty much off the table. And part of that is that people have actually decided that the Second Amendment does actually restrain the government, at least somewhat. And the Supreme Court, which I think nobody thought 20 years ago would rule that, has gone along. The Second Amendment decisions from the Supreme Court I think follow the culture more than lead it. Which is not that unusual for the Court. But I think, for people who say--and this is something I actually hate--is this sort of gloomy strand of libertarians and conservatives, which is: we're always going down, things are always getting worse, it's a one-way ratchet away from liberty. It's much more fluid than that. And I think things can improve rather than just go downhill. There are certainly powerful institutional forces in favor of the government grabbing more power and doing more. But there are also powerful forces the other way. And I think that you have to fight the fight. You can't just give it up. Russ: I like being optimistic, too. I think one sign that's encouraging is the number of people who are alarmed about the size of government. And I compare it to my youth, say, the 1960s and 1970s, when I felt much more lonely and I was surrounded by much stranger people who agreed with me; and now I feel a much larger and more normal group of people shares my views. And yet, government just keeps getting bigger. So, maybe it's not enough. Guest: Culture comes before politics. And politics come before law. So, I think that the culture has to change first. I think to some degree it has. I think libertarianism doesn't look nearly as weird as it used to. I think you see shifts on a number of attitudes. And if you actually look at the popular discussion--I mean, there's a fairly dumb article in Salon that says we can have gun prohibition because, look, we have gay marriage. But if you look at the things that have changed in American society, generally in terms of social movements, the ones that succeed are in favor of more individual liberty, not less. Russ: Well, that's true. Guest: The gay marriage movement basically has worked not because Americans have any huge excitement about gay marriage per se--because a majority of heterosexuals don't really care much--but they have a general bias in favor of letting people do what they want. Russ: That's true. Guest: I think that's driven the failure of the gun control movement, too. So I think there's a lot to be said for that, and I think that's a hopeful sign. I don't think that that's a reason to relax and be certain that nothing bad can happen in this best of all possible worlds. But at the same time I do think that there's a strong tendency for libertarians to get kind of gloomy and to think that nothing can happen. And if you actually look at the daily lives of average people in the United States over the last several decades, in many ways they've gotten much freer. Russ: I totally agree. The only difference is that small area called your pocketbook. But other than that--which I don't want to understate how important that other aspect of our lives are, the other kind of freedoms. But I think the economic freedom part is the thing most at risk. And it does underpin civilization to a certain extent. So I'm a little worried about it. Guest: You're right. But that's one of the things--I think Milton Friedman once said the reason you won't get to a fully libertarian society was that if you got halfway there everybody would be so rich and happy they'd quit trying. The optimistic view is to say that's kind of what happened. Russ: Yeah, there's something to that. Guest: We lightened up in the 1980s with a lot of deregulation and such, and people got a lot richer and happier. And so they kind of got complacent and quit trying. And it may be that one of the things that we need is to go through this Obama economic stagnation and malaise, for people to realize that this stuff actually makes a difference. That you can't just take it for granted that a big wave of prosperity and freedom is going to always be cresting under you without any effort on your part. And I think the key to having that happen is actually for us to make sure that people realize: why they are stagnating, why something that can't go on forever won't, and what won't go on forever, and why it can't. And I think that's a message to get out. That's actually been my long-term strategy with this series of columns in USA Today, to try to get this kind of stuff out to people who are outside the usual libertarian fold. Russ: I have to--I like your argument about complacency, although I do think some of the deregulation of the 1980s is greatly overstated. In the late 1970s. It's nice to get rid of some of the regulations of transportation and air travel and trucking and those things. They were replaced by different regulations that limited freedom elsewhere. But there have been some moments of actual freedom.

41:45 Guest: Well, the biggest breakthrough was the Internet, which simply grew faster than the regulators could keep up. Unfortunately, that's coming to an end. The Internet is still the most free place in terms of activity in the economy. And it will probably stay that way for a while. But the regulators, the special interests and all the others are definitely trying to carve things up and get a bigger piece of the pie and more control, and you can't rely on that forever. I think the Internet made a lot of people over the last 20 years complacent as well. Russ: Well, talk about what you are worried about coming there, because it seems to me there is a tremendous cultural force to "leaving the Internet alone." I understand that what we observe in our day-to-day lives isn't actually what the regulatory environment is actually about. But for example, the attempts to tax the Internet haven't been very successful. What regulations are you worried about for the Internet? Guest: There is already some pretty draconian regulation of the Internet, stemming from the Digital Millennium Copyright Act and things like that. Intellectual property stuff. Now, it tends to be somewhat under-enforced, which I think is great. But it does give them an opportunity to go after people when somebody is targeted. I think we are going to see more of that. We've had the SOPA, Stop Online Piracy Act, last year which failed, and apparently was a sufficiently painful experience for members of Congress that they are a bit gun-shy now. But that won't last forever. The way these things work is they keep trying until they get what they want, typically. Or until they are beaten down so bad that they don't try for a while. Russ: Well, yeah. It's the Willy Sutton theory of regulation, right? Willy Sutton when asked why you rob banks: That's where the money is. It's hard for politicians to ignore the Internet. It's where the action is, the money, the activity. So, it is a constant temptation. Guest: I think that's right. I think the optimistic look at the SOPA battle was they came at it the same old way and we beat them in the same old way. But the pessimistic look is to say: And they'll be back again. It's a constant back and forth on that front. Russ: Vigilance, vigilance.

44:11 Russ: Let's turn to your book, An Army of Davids, which came out 7 years ago, where you noted the phenomenon of the decentralization of power away from traditional centralized nodes of power. Media being an obvious example, and your success with Instapundit, which has been extraordinary; it's an incredible blog. What did you say in your book about decentralization at the time? What do you think has happened in the meanwhile that's either reinforced or changed your mind? Guest: The basic thesis of the book was that technology was changing a lot of things. We went through sort of the industrial era with its emphasis on economies of scope and scale, where to do a lot of things worthwhile in an efficient way, you had to be big. When a steam engine had to be big enough to power a factory, pretty much all you were going to do with steam engines was power factories. And a lot of stuff worked that way, and we got to the point where bigger was better. I was watching, not that long ago, an old movie from the 1930s. It was H. G. Wells's Things to Come. And when you see the future--I think it was supposed to be the 22nd century or something like that--what are they but a bunch of huge locomotive-sized machines chewing up mountains. Because to somebody in 1930, that was the future. Big, big things. Russ: That would be a big deal. Guest: It reminds me of--I quote this in the book: When the tide started to change was the joke from the old Soviet Union: Introducing the Soviet microchip, the world's largest! The Soviets were always bragging about having the world's biggest this and the world's biggest that. The biggest airplane. They were an industrial age economy taken to the point of absurdity. Well, now, that's not the way things go. Just for example with this podcast, and things like that, with a laptop computer and an iPhone, you've got capabilities that TV networks didn't have a couple of decades ago. And as a result you see all kinds of journalism and opinion and other stuff being done that never would have made it in the old days. You see that in all kinds of micro-manufacturing and sales. I know people--they all seem to be women--who make money selling handcrafts on Etsy and all seem to make a living that way. And people who sell stuff on e-Bay individually. If you are an e-Bay power seller you can get health insurance. So there are all kinds of ways you can make a living now and do stuff as an individual or small group that used to require a big organization. So that's the basic theme of Army of Davids. I walk through that in a variety of areas--media, music, manufacturing, all that stuff. How do I feel--I think that holds true to a great degree. And one thing I'd say that's sort of a cheerful sign is you don't even need a free country for that to work. For people in China, one of the interesting things that's happened is, the army used to drive all over people's property and not worry about it. And then everybody got cell phones, and they started complaining. And weirdly, even in what's fundamentally a military dictatorship, when a lot of people complain they start to notice. And they changed their ways. Russ: Yeah, that's an amazing thing. How would you sum up the impact of technology--we are talking about this podcast, or other media changes? Certainly the blogosphere has given a lot of entertainment to a lot of people. What do you think its impact has been on media, actually? How important is it? Guest: Well, if you look at the fact that traditional media organizations are going broke--Newsweek doesn't even have a print edition and barely even exists any more--I think there's real impact. In terms of my own media habits and the people I know, I spend a lot of time on things that are not big-media productions. And my brother teaches history and one of the things he's done several times is he's asked his class of undergraduates to name their favorite band. And what he finds is not only do basically all of them have different favorite bands, most of them haven't even heard of each other's favorite band. It's not like in the 1960s or 1970s where half the class would say Beatles and half the class would say Stones. Or something like that. Now the culture is sufficiently diverse that there is sort of nobody that really markets the whole thing. Russ: I love that. I think that's just a beautiful thing. But a lot of people--I'm not one of them--are alarmed by the death of traditional media, thinks we are listening to too many echo chambers; it's not healthy; it's not good for democracy. Do you agree or disagree? Guest: I think that their complaint is that we have more than one echo chamber, and it's not the one they control. I think that traditional media--you talk about how in the 1960s or 1970s if you were libertarian you felt like a weirdo. Well, that was because libertarianism didn't really get any attention in the traditional media. Russ: Well, I didn't say I felt like a weirdo. I felt lonely. People around me were mostly weirdos. Guest: That's right. Russ: It could have included me. I'm not ruling that out. I just want to get the facts straight. Guest: Well, I really think that that argument is fairly weak--the argument that we are all in a bunch of echo chambers talking to each other. That's originally Cass Sunstein's original argument, Republic.com, and even in the second edition of that he kind of backed away from it. But the other side of it is, I think that if people really believe that, if, for example, I ran the NY Times and I believed that that was so bad, then it would I think behoove me to make my newspaper a lot more inclusive than the NY Times is. Or most of the other places that you hear about this. Russ: Well, they have struggled to stay competitive for a variety of reasons, one of which is their unwillingness or inability to respond to the change. A lot of cultural reasons for that, blindness, myopia is part of it. It's been interesting to watch. What do you think is coming to the blogosphere? More of the same or anything different? Any trends you see that are worth noting? Guest: It seems to me that the blogosphere is in a fairly stable state right now. You still have--which I think is interesting--people who appear and sort of become stars pretty rapidly. So I think it's still open to new entrants. I don't think it's locked in. But the sort of style and format of blogging have now been stable for a number of years. Twitter was going to be the next big thing, and my sense is it's never quite been the next big thing. Journalists love Twitter because Twitter is great when you are standing in line waiting to get into a Congressional hearing and you've got your smartphone out: you can click through it and snipe at each other and that sort of thing. On the other hand, I find it sort of unsatisfying; and the bad thing about Twitter is it's emotionally agitating if you pay a lot of attention to it. I find it harder to-- Russ: Why is that, do you think? I've heard that claim. I feel a little bit of it myself in my tweet activity. Why is that? Guest: I think a lot is the format. You get exposed to a lot of different stuff. The 140 character limit I think encourages people to be more provocative. There's something about Twitter that encourages just back and forth [?], and I think that's a lot of it. But I don't know; I just don't like it. Facebook as a social media forum is more social and less media. I think Twitter on the other hand doesn't have much of a social aspect, really. And I think that it just seems to be harsher. Like people driving by and yelling out the window at each other. Russ: Yeah, I feel that sometimes. Obviously we just need to increase the characters to 150. We need a government regulation to increase the minimum and it would be fine. Stability would reign. Maybe it's 160. We could debate--we'll fill it out.