Legal Realism – Or – What I am Most Worried About Today

Matt_levine_legal_realismMy favorite financial blogger is Matt Levine on Bloomberg. My favorite course in college was called Legal Realism.

The mashup of these two personal favorites this morning – to explain my deepest fears about the election results – are worth reading.

Take it away, Matt:

Hmm.

The summer before I started law school, 15 years ago, I read a little book by Karl Llewellyn called “The Bramble Bush.” It’s basically a “Law School for Dummies” type thing from 1930, full of somewhat outdated advice on how to ace your classes and impress your professors. But Llewellyn was a leading thinker of the school of thought known as “legal realism,” and “The Bramble Bush” is also a major statement of that philosophy. In a famous passage, Llewellyn wrote:

“This doing of something about disputes, this doing of it reasonably, is the business of the law. And the people who have the doing of it in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.”

He went on:

“And rules, in all of this, are important to you so far as they help you see or predict what judges will do or so far as they help you to get judges to do something. That is their importance. That is all their importance, except as pretty playthings.”

And then I went to law school. And I took the first-year course in Constitutional Law, and I learned about the fundamental principles that rule the United States. And I learned — or at least was given the general impression — that, while the country has not always lived up to those principles, in the long run, the Constitution has served as a wise guide and constraint on the power of our rulers, and the foundation of our system of government.

But in the back of my mind I thought about Llewellyn. I thought about the fact that those principles can’t automatically enact themselves, that they only work if the human actors in the system choose to follow them and to demand that others follow them. They persist because the people constrained by them believe themselves to be constrained by them. The Constitution, separation of powersreligious liberty, freedom of the press, an independent judiciary, the rule of law, equality of all citizens: There is a complacent sense in America that these things are independent self-operative checks on power. But they aren’t. They are checks on power only as far as they command the collective loyalty of those in power; they require a governing class that cares about law and government and American tradition, rather than personal power and revenge. Their magic is fragile, and can disappear if people who don’t believe in it gain power.

Anyway this is a financial newsletter, so I’ll tell you that S&P 500 futures were limit down at minus 5 percent overnight, before paring losses. The Fed probably won’t hike in December now. Foreign markets have had a wild ride. Treasury yields plunged, I guess an indication that default is not too imminent. Bitcoin rallied. The Mexican peso is … best not to look. Maybe everything will be fine!

 

Things are not ok.

 

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Mexican Democracy – Something Hopeful This Week

Mexican_Democracy
The Mexican Tricolor

And now for something completely different:  Mexican Democracy.

No, that’s not the name of Axl Rose’s next tortured, long-awaited, magnum opus.

Mexican democracy is a topic I used to obsess over before I became a finance guy, on my distinguished journey to the pinnacle of achievement: an obscure ex-banker typing up his opinions on finance, while wearing pajamas.

Nearly 20 years ago I was among the foremost scholars in the US, writing in English, on historical reforms to the Mexican Constitution.

Seriously.  Ok, there were about 3 of us in the whole world who cared, but still.

So what’s happening with Mexican democracy today?

This week Mexico will reform its Constitution to allow for the re-election of legislators and mayors.

This makes me very happy, and I’d like to tell you why.

I wrote an academic paper in 1997 arguing that Mexico had no chance at a strong democracy without allowing the re-election of legislators.

I’m certain that the other 2 people in the world who read this paper the first time around found my views fascinating.

But guess what?  I was right then, and I’m still right, dammit.  That’s why I’m removing the foil on some fancy imported beer for Mexico to celebrate this week’s reform.

Negro_Modelo_Beer_celebrating_mexican_democratic_reforms
A visual representation of honoring Mexico’s reform this week

Some Mexican political history background on ‘No Re-Election’

For the past 100 years or so, and up until this week, elected officials in Mexico have never been allowed to run for re-election.

Not the President, not Governors, not Mayors, not Senators, and not Representatives.[1]

A history of authoritarianism

“No Re-Election” in fact has always been the #1 political principal and key slogan of the Mexican Revolution[2] – dating back to 1917 – in response to Mexico’s troubled 19th Century history of strongmen who occupied the Presidential Palace like incurable infectious diseases.

By forbidding re-election at the Presidential level, Mexico avoided cults of Presidential personality that plagued much of Latin America[3] throughout the 20th Century.  Most people believe the ban on Presidential re-election served Mexico well.

Unfortunately, the key constitutional weaknesses of Mexican democracy to this day also flow from this same ban on re-election.

An overly strong party system, and an overly strong presidency, are the logical consequence of the constitutional ban on the re-election of legislators.

Comparing the Mexican Congress to the US Congress

We Americans disagree on many things politically but the one thing that unites us, as a people, is our view of the loathsomeness of the US Congress,[4] currently enjoying single-digit approval ratings.

You don’t like the US Congress?  At least they have some responsibilities.  Let me introduce you to something worse.

The Mexican Congress has toiled in laughable irrelevancy since the Mexican Revolution.

You see, when you get elected to a 3-year term in the Mexican legislature, with no possibility for re-election, there’s kind of no point in doing your current job.  You need the next job.  And that next job doesn’t come from the people who voted for you, but rather from your party bosses and the President’s patronage machine.

With no re-election, there’s no possibility of legislators learning the ropes.  There’s no possibility in the Mexican Congress of developing a long-term personal power base – through constituent services, long experience, and the ability to pass complex legislation.

If you’re in the Mexican Congress you are the kale salad at a BBQ Meat-opia even.  The Mexican Congress is a loaf of white bread at the buffet of a gluten-free Paleo-diet convention.[5]  If you’re in the Mexican Congress nobody cares about you.

At least the US Congress matters.

You may not like Harry Reid or Mitch McConnell or John Boehner or Nancy Pelosi or any number of powerful legislators, but you have to admit:

  1. They wield power.
  2. They effectively advocate causes and coalesce interest groups.
  3. They serve as a check on the Executive & Judicial branches of government.

The result of the constitutional “No Re-Election” rule on separation of powers has been catastrophic, historically, for Mexican democracy.

Power has concentrated in the hands of the ruling party and the President unfettered by a stunted Legislative branch (and for others reasons, a flaccid Judicial branch[6])

The consequences of this week’s new law, in context

Do I think allowing for re-election in the Mexican Congress will spark a flowering of good governance, model democratic process, and a beacon of hope on our southern border?  Not quickly, and not noticeably at first.  I’m an optimist, but I’m not an idiot.

So then how important is this?

Look, re-election doesn’t solve – in the short run – top priorities like grinding poverty, or drug violence, or the myriad other structural challenges for Mexico right now.

On the other hand, I don’t think effective national governance can develop without allowing re-election in the Mexican legislature.  So this reform – which partially retracts a key pillar of the Mexican political identity forged in their 1917 Revolution – represents one of those subtle but ground-shifting institutional reforms that over the long run opens up new possibilities.  I’m celebrating, cautiously, on behalf of our southern neighbors.

Mexico – my favorite country except my own – deserves so much better than what it generally gets from its government.[7]

In sum, Negro Modelos for the rest of the week, but I’m not breaking out the high-end tequila yet.

Ps. Rest assured, dear fellow finance obsessives, I don’t expect to re-engage deeply with writing about historical reforms to the Mexican Constitution on Bankers Anonymous.  I just wanted to share my joy with someone (anyone?) that a small, but key, change is happening in Mexico.

Pps.  Also, if you suffer from insomnia, I can help you!  Please see my 1997 papers on historical reforms to the Mexican Constitution, in particular this one about the Mexican Judicial Branch, and this one on the Mexican Legislative Branch.

I’ve got boxes of these reprints still cluttering up my basement storage.  First person to find me a book agent gets an autographed copy of the physical reprints sent to them in the mail.  They make great stocking stuffers!

 


[1] As in the US, the Mexican Legislature is bicameral, with a Senate and a House of Representatives (Camara de Diputados).

[2] The phrase “Sufragio Efectivo, No Reeleccion,” (“Effective Ballots, No Re-election”) actually dates, ironically, to a campaign slogan by Porfirio Diaz in the 1870s.  But Diaz quickly decided – once firmly in power in the 1880s – that his own frequent re-election served Mexico’s best interests!  He held on to the Presidency through brutal control of everything, including elections, until fleeing the country in 1911, upon the outbreak of the Mexican Revolution.

[3] And Spain, and Portugal, and Italy, and Germany, and Russia, and China, and Indonesia, and several dozens of other countries in Asia and Africa.

[4] I’m simplifying the issue of disrespect for the US Congress.  It turns out people generally like their own representative, but find everyone else’s representative to be extremely loathsome.  I suppose this explains the paradoxical 95% percent incumbency re-election and 10% Congressional approval ratings?  Also, people generally believe the other side’s hard-core party stalwarts are really driving this country over the cliff.  And of course things seem to be getting worse.  This has been the prevailing view of all good Americans about their Congress since about 1793.

[5] Forgive me, writing this post has interrupted my lunch hour.

[6] On the Judicial Branch, one piece of data is all you need to know.  Teaching law at a decent law school in Mexico traditionally accrues more power and prestige to an attorney than serving on the Mexican Supreme Court.  Seriously.  If you have trouble sleeping at night, can I interest you in a paper by yours truly on the Mexican Judicial Branch published in 1997?

[7] Mexicans sum up their historical suffering with a phrase attributed (probably wrongly) to 19th Century dictator Porfirio Diaz :”¡Pobre México! ¡Tan lejos de Dios y tan cerca de los Estados Unidos!” (Poor Mexico, so far from God, so close to the United States!)

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