Review of Austrian Economics - The Ludwig von Mises Institute

Higgs: Analysis of the Growth of Government 21
Thompson [1985], using Box-Tiao tests.) If U.S. voters actually had
preferred that the nation not go to war, it was too late to rectify the
legislators' mistake in the election of 1942—the fat was already in the
fire.
Further, political actions are usually followed by carefully crafted
rationalizations, excuses, and propaganda emanating from the politicians
and their friends who initiated or supported the actions. (How
often do politicians admit policy mistakes?) In this way political
preferences, public opinion, even the dominant ideology may be
altered, becoming more congruent with what has been done and
thereby reversing the direction of causality usually assumed in political
models. (On ideology and policy as interactive, see Higgs 1985;
1987a, pp. 67-74; 1989c, pp. 96-98.)
Proposition 12
A corollary of Proposition 11: The judicial branch of government
can be ignored.
If analytical political economists have greatly overstated the role of
legislators (too often viewed as perfect agents of voters) in the growth
of government, they have to an even greater degree understated the
role of judges, at least in U.S. history, where legislation must withstand
judicial review of its constitutionality to survive and have
ongoing effect. The public choice and related analytical literatures
contain almost nothing empirically concrete about the judiciary's
role in the growth of American government, although the literature
of law and economics offers some useful insights (several chapters
in the volume edited by Gwartney and Wagner [1988], as well as
Hughes [1977], are pertinent) and the literature on constitutional
political economy offers suggestive insights, albeit at a very abstract,
quasi-philosophical level (e.g., Friedrich Hayek's Law, Legislation
and Liberty or various works by James Buchanan and his
collaborators). The index of the recent, admirably comprehensive
survey of public choice by Dennis Mueller (1989) has no entry for
judges or judiciary. Mueller mentions but does not dwell on an
oft-cited paper by William Landes and Richard Posner (1975), enticingly
titled "The Independent Judiciary in an Interest-Group Perspective."
Unfortunately, the thesis of this paper—legislators tolerate
an independent judiciary only to augment the longevity and hence
enhance the value of the legislative products they sell—is hard to take
seriously, at least for anyone who has spent much time studying the
constitutional history of the United States. (Cogent critics of the
Landes-Posner paper include Buchanan [1975], Samuels [1975], and
North [1981, pp. 56-57].)