The Place of Post-Constitutional Choice Architecture

In comments below, Berger asks this question in response to my concession of the non-neutrality of choice architecture, (which was in fact what I had in mind when posing the cryptic “dissertation topic” question about liberal neutrality at the bottom of the post):

It seems to me that if you concede that there is no such thing as neutral choice architecture then your objection to “libertarian paternalism” can’t really be that it interferes with free choice (because this is now inevitable) but that there’s some sort of intentionality or thought process that’s gone into disposing our architectures one way or another. But given that our various architectures are going to be biased one way or another, why not put some thought into those choices?

I have absolutely no objection whatsoever to “putting some thought” into how the way various rules are likely to frame and bias choice. Indeed, this is mandatory for anyone wishing to act effectively as an individual pursuing her aims, as a business owner, as a manager of workers or players, etc. My position is that, when it comes to politics, putative facts about our psychology that bear on how a candidate rule or institution will actually function should be an input to public deliberation. And there are a lot of other proper inputs. This is also my position about happiness research. A great deal of happiness research makes the somewhat embarrassing mistake of assuming that a scientific politics aims at happiness. But that’s just silly, since it’s not a scientific proposition that happiness is a rationally mandatory individual or social aim. Yet it’s good to know that this or that policy may tend to make us a bit happier. So, sure, let’s take that into consideration and we’ll see how much weight we decide to give it.

Now, a great deal of behavioral economics takes for granted that it is providing a technology for the design of institutions. This is much less silly. (That is, as long as the behavioralist is not smuggling in an under-motivated normative conception of rationality –often the very conception of economic rationality they have just descriptively debunked! — that is thought to uniquely identify the right rule). Institutions — policies, rules, procedures, etc. — do have to be created and implemented, and it is just negligent to refuse to take what we know about human behavior into account.

But it might be useful here to make a James Buchanan-inspired distinction between constitutional and post-constitutional political choice architecture. James Madison, John Adams, Alexander Hamilton, Gouverneur Morris et al were exquisite choice architects who availed themselves of the scientific psychology of their age (which may still be predictively superior to our own in many cases, even if they had the cognitive and emotional mechanisms wrong) when designing the U.S. Constitution. But what we’re doing when we’re doing public policy is quite far from what we’re doing when we’re designing a constitution, which is probably a bit disappointing to people like Thaler, Sunstein, and me.

Once you have a constitution, as we do, post-constitutional choice architecture must follow the rules laid down in the constitution. If we have a liberal constitution, as we do and ought to have, then the constitutional rules will give a large role to democratic representation and public deliberation. The point of liberal constitutional rules is precisely to bias political choice in the direction of liberty. If the population governed by the constitution continues to care about liberty, then they’ll try to protect the integrity of liberty-biased constitutional rules by protecting the authority of the liberal interpretation of those rules. When it comes to post-constitutional rule-making, the public throws the whole kitchen sink of competing values and candidate policies into public deliberation. And this is where libertarian paternalist proposals come in. In a liberal culture, liberal values will be preeminent. And a liberal constitution will bias the outcome in favor of liberty, assuming we’ve been able to preserve enough of the liberal sense of the constitutional rules.

Now, when we’re told that default rules for things like savings and organ donation make more of a difference than we thought in determining the outcome, that’s interesting and we ought to take it into account. But, as I said in yesterday’s post, default rules can have a meaning and tendency of their own that is somewhat independent of the immediate practical consequence of people acting within the frame of those rules (i.e. more savings, more available organs), and we ought to take that into account, too.

“Presumed consent” organ-harvesting rules may well increase the availability of organs. But it may also reinforce an illiberal norm about a presumed lack of self-ownership. Both considerations go into the hopper of public deliberation. Suppose we add the consideration that liberalized markets in organs would do even more than “presumed consent” to make organs available while at the same time strengthening norms of self-ownership. At that point, it’s pretty clear that the behavioralist view about the immediate practical consequence of the default rule is far from a trump. It’s also pretty clear that legalizing banned markets is often an extremely effective form of progressive choice architecture.

Markets in organs are often banned on straightforward hard paternalist grounds. The form of choice architecture that favors not banning mutually advantageous market exchanges might well be called libertarian anti-paternalism, which would be redundant, of course. So maybe we should just call it “libertarianism.”

In the end, we have to fight over what we want, and fight again over the policy mechanism that will deliver it. Libertarian paternalism doesn’t tell us what to want and may in some cases straightforwardly conflict with things we do want. Moreover, libertarian paternalist default rule rejiggering provides just one among a number of mechanisms for getting what we might want, like a greater supply of organs or a higher savings rate (how about Social Security personal accounts instead?!). But libertarian paternalism is not some kind of superspecial framework for scientifically enlightened policymaking. All we’ve really got here is some good new data on how people behave in certain kinds of scenarios. That’s got to be helpful, but it doesn’t tell us what to do.

[Note: I’m reviewing Nudge for Reason and I’ll be on a Cato panel with Sunstein and (maybe) Thaler next month, which I’m really looking forward to. So I’ll probably keep thinking out loud about this stuff for a while, especially once I get further into the book.]

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