On theConstitution

of aCompound

Republicby

William A. Niskanen

is a series of distinguished essays on political economy and public policy. The Cato

Institute takes its name from an earlier series ofCato’s Letters, essays on political liberty writtenby John Trenchard and Thomas Gordon in the18th century, which were widely read in theAmerican colonies and played a major role inlaying the philosophical foundation for theAmerican Revolution.

Cato’s Letter #14On the Constitution of a Compound Republic

by William A. NiskanenCopyright © 2001 by the

Cato Institute

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Acompound republic presents the uniqueopportunity for each level of government to

check abuses of the constitution by the otherlevel. This essay summarizes why judicial reviewhas not proved to be sufficient to maintain a con-stitution and the changes to the U.S. Constitutionneeded to make the structure of this compoundrepublic more effective.

INTRODUCTION

The Constitution of the United States establishedthe basic structure of a compound republic, afederal structure in which there are two or morelevels of government each of which has the pri-mary if not sole authority for a specific set of col-lective decisions. The U.S. federal structure ischaracterized by a separation of powers withinthe federal government and between the federaland state governments but without any explicitprovision for resolving constitutional disputes.Early in U.S. history under the Constitution,however, in several important decisions by ChiefJustice John Marshall, the Supreme Court assert-ed its authority to adjudicate these disputes, andthis role has been accepted, albeit not withoutcontroversy, since that time.

This essay makes the following majorpoints:

• The Constitution establishes no explicitprovision for resolving constitutional dis-putes.

• Judicial review has not been sufficient toprevent a massive erosion of the limits onthe powers of the federal government.

• The primary effects of the changes in theeffective constitution that have weakenedthe separation of powers between thefederal and state governments have been

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William A. Niskanen is chairman of the Cato Institute.Formerly an acting chairman of President Reagan’s Councilof Economic Advisers, he is the author of Reaganomics: AnInsider’s Account of the Politics and the People and ofBureaucracy and Public Economics. This essay was presentedas his presidential address to the Public Choice Society inMarch 1999 and was published in slightly different form inConstitutional Political Economy, vol. 10, 1999. Reprinted withpermission.

a substantial increase in the powers of thefederal government and a somewhatlarger increase in the total powers of thegovernment.

• The most promising means to sustain theconstitution of a compound republic is tomake the federal government the guaran-tor of individual rights against an abuseof power by the states and to make thestate governments the guarantor of thoserights against an abuse of power by thefederal government.

• For the United States, the necessarychange to make the federal governmentan effective guarantor of individualrights is to restore the federal protectionof the privileges and immunities of all cit-izens, a protection formally guaranteedby the Fourteenth Amendment but erod-ed by later court decisions.

• The necessary changes to make the stategovernments an effective guarantor ofindividual rights are to provide formalconstitutional authority (a) for a specifiedgroup of states to nullify an action by thefederal government, primarily to force adetermination of whether the actionwould meet the Article V tests for a con-stitutional amendment, and maybe (b) foran individual state to secede from thefederal union, preferably by two succes-sive votes over some interval and subjectto some rule for the allocation of theassets and liabilities of the federal gov-ernment.

These points reflect my still tentative judg-ments and are intended to provoke controversy,in the hope that both you and I will learn fromthis controversy.

SUSTAINING A CONSTITUTIONALCONTRACT

As I noted in a prior article (Niskanen 1990), wehave only the most primitive understandingabout what sustains a constitutional contract.The conventional American civics textbookexplains that the Supreme Court is the guardian

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of the Constitution, but there are at least threeproblems with this explanation.

First, there is no explicit constitutionalauthority for judicial review of constitutional dis-putes. Alexander Hamilton (1788), among the

“Judicial review has not been sufficient toprevent a massive erosion of the limits onthe powers of the federal government.”

Framers the strongest supporter of the role of thecourts under the new Constitution, acknowl-edged (in Federalist no. 81) that

there is not a syllable in the plan underconsideration which directly empowersthe national courts to construe the lawsaccording to the spirit of the Constitution. . . the Constitution ought to be the stan-dard of construction for the laws, and thatwherever there is an evident opposition,the laws ought to give place to theConstitution. But this doctrine is notdeducible from any circumstance peculiarto the plan of convention, but from thegeneral theory of a limited Constitution.

Hamilton had previously developed an argu-ment (in Federalist no. 78) that

[t]he complete independence of the courtsof justice is peculiarly essential in a limit-ed Constitution, . . . [that such limitations]can be preserved in practice no other waythan through the medium of the courts ofjustice, whose duty it must be to declareall acts contrary to the manifest tenor ofthe Constitution void. Without this, all thereservations of particular rights or privi-leges would amount to nothing. . . . wherethe will of the legislature, declared in itsstatutes, stands in opposition to that ofthe people, declared in the Constitution,the judges ought to be governed by thelatter rather than the former.

Chief Justice John Marshall relied primarily onthe above argument by Hamilton, that the powerof judicial review is inherent in or implied by a

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limited constitution, when he asserted thispower in Marbury v. Madison (1803). Marshall’sdecision was understandable, albeit then contro-versial. The Constitution is strangely silent onthis issue, and political power rushes to fill a vac-uum. In any case, judicial review has becomepart of the effective constitution and has been theprimary process by which constitutional dis-putes are resolved.

Second, judicial review, of course, cannotprovide a sufficient defense against changes inthe effective constitution either initiated or rati-fied by the judiciary. Hamilton was not con-cerned that the judiciary might abuse this power,describing the judiciary (in Federalist no. 78) asthe “least dangerous to the political rights of theConstitution . . . [as it] has no influence overeither the sword or the purse.” At the same time,however, he recognized that “it would require anuncommon portion of fortitude in the judges todo their duty as guardians of the Constitution,where legislative invasions of it had been insti-gated by the major voice of the community.”

As it has turned out, the structural and pro-cedural provisions of the Constitution haveproved to be remarkably stable, but the substan-tive provisions have been changed in major waysboth by judicial initiative and by judicial acqui-escence to pressure from Congress and the presi-dent (Niskanen 1988). For the moment, my argu-ment is not that those changes in the effectiveconstitution were necessarily wrong but thatthey were made without the test of broad con-sensus required by the Article V procedures foramending the Constitution. Most of thosechanges in the effective constitution were madeduring the New Deal, a period that law professorBruce Ackerman (1991) correctly describes as thethird constitutional revolution. At the birth of theU.S. welfare state—when proposed legislationthat would establish Social Security, aid todependent children, and unemployment insur-ance was before the House—President FranklinRoosevelt wrote a member of the Ways andMeans Committee in July 1935 that “I hope thatyour committee will not permit doubts as to con-stitutionality, however reasonable, to block thesuggested legislation.” Congress approved the

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Social Security Act in August l935, and theSupreme Court indirectly validated it in January1936, ruling (in United States v. Butler, 1936) that“the power of Congress to authorize appropria-tions of public money for public purposes is notlimited by the direct grants of legislative powerfound in the Constitution.” This first majoraccommodation to the New Deal saved the Courtfrom Roosevelt’s later threat to pack it with moreacquiescent justices, but it effectively destroyedthe fiscal constitution. In effect, each Congressmay now write its own fiscal constitution, subjectonly to the restraint that the appropriations mustserve some vague concept of public purpose.Hamilton’s fear that the Court could not defendthe Constitution against “the major voice of thecommunity” proved to be correct. Even with “anuncommon portion of fortitude,” no group thatcould all be put in one paddy wagon can stop aparade.

The third problem of the conventionalexplanation is that it is specific to the UnitedStates and a few other nations. In most othernations, the highest court has no constitutionalrole. Even if the conventional explanation fits theU.S. experience, it fails to provide a general theo-ry of constitutional maintenance.

A COMPOUND REPUBLIC WITHOUT ASEPARATION OF POWERS

Conventional public finance suggests that thesize of government in a federal system would be

“The most promising means to sustain theconstitution of a compound republic is tomake the federal government the guarantorof individual rights against an abuse ofpower by the states and to make the stategovernments the guarantor of those rightsagainst an abuse of power by the federalgovernment.”

smaller than in an economy with a unitary gov-ernment, because regional governments are moreconstrained by the potential mobility of laborand capital. That advantage of a federal system,

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however, is dependent on an effective separationof powers between the national government andthe regional governments. For the most part, thatwas the case through the 1920s. In 1929, the lastcyclical peak before the Great Depression, cur-rent expenditures by the U.S. federal governmentwere 2.6 percent of GDP, most of which was forthe military and the deferred costs of prior wars,and total U.S. government expenditures were 9.9percent of GDP. Since that time, however, realgovernment spending has increased at about thesame rate in both federal and unitary govern-ments (Grossman and West 1994). As of 1997,current expenditures by the U.S. federal govern-ment were 21.5 percent of GDP, most of whichwas for programs for which there is no explicitconstitutional authority, and total U.S. govern-ment expenditures were 30.5 percent of GDP.

Why did this happen? Most important, theconstitutional limits on the fiscal and regulatorypowers of the federal government have beenalmost completely eroded since the 1920s.Second, with no constitutional wall between thepowers of the federal and state governments,both federal and state politicians have an incen-tive to compete to provide the same services in agiven state. As explained in an important recentarticle by Jean-Luc Migue (1997), this has muchthe same effects as two parties pumping oil orwater from a common pool—oversupply of theservice and, at the limit, the dissipation of anyrents to both parties. Moreover, federal interven-tions are likely to expand most, because the fed-eral government is less constrained by the poten-tial mobility of labor and capital. This explana-tion is wholly consistent with the U.S. history ofgovernment expenditures, regulation, and eventhe criminal law since the 1920s but may not bethe best or most general explanation. Competingexplanations of these developments are wel-come.

USING A COMPOUND REPUBLIC TOENFORCE THE CONSTITUTION

The unique potential strength of a compoundrepublic is the opportunity to use each level ofgovernment to protect individuals against abus-

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es of constitutional authority by the other level.Only power can check power. In a prior age, onlythe king could protect individuals against thebarons, and only the barons could protect indi-viduals against the king. In our age, both the fed-eral government and the state governments mustbe strong enough that neither party easily domi-nates the other, and the interests of the leaders ofthe two levels of government must be sufficient-ly different to ensure that they do not collude to

“The structural and procedural provisions ofthe Constitution have proved to be remark-ably stable, but the substantive provisionshave been changed in major ways both byjudicial initiative and by judicial acquies-cence to pressure from Congress and thepresident.”

exploit the general population. This concept of acompound republic was broadly shared amongthe Framers of the U.S. Constitution. In Federalistno. 28, Hamilton stated that it was an “axiom” ofthe American system of government “that thestate governments will in all possible contingen-cies afford complete security against invasions ofthe public liberty by the national authority.”Should the national government prove to be adanger, Hamilton expected the states to

at once adopt a regular plan of opposi-tion, in which they can combine all theresources of the community. They canreadily communicate with each other inthe different states; and unite their com-mon forces for the protection of their com-mon liberty.

And James Madison, in Federalist no. 51,described how the federal government and thestates “will controul each other; at the same timeeach will be controulled by itself.” At the limit,an abuse of constitutional authority by eitherlevel of government can be constrained only byactions that risk civil war. This is a disturbingconclusion, but the only alternative seems to be a

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unitary government that is dominant enough todefine its own powers. I would welcome beingproved wrong on this.

FEDERAL PROTECTION OF OUR PRIVILEGES AND IMMUNITIES

The necessary constitutional authority for thefederal government to protect individualsagainst an abuse of authority by the states isalready in place: the Privileges or ImmunitiesClause of the Fourteenth Amendment. Althoughthis clause, for lack of use, now seems as quaintas knee breeches and powdered wigs, it was partof common Anglo-American legal parlancethrough the 1860s. And it had a distinguishedlineage—included in Article IV of theConstitution, the Articles of Confederation,Blackstone’s Commentaries, and the foundingdocuments of the American colonies dating backto the Charter of Virginia in 1606. Hamilton (inFederalist no. 80) described the Article IV clauseas “fundamental . . . the basis of the Union.”

What does this clause mean? How did aprotection so fundamental to American constitu-tions become ineffective? Why is it important torevive this protection?

First, this clause is rooted in natural law, aconcept broadly shared among the AmericanFounders and integral to the Declaration ofIndependence. As expressed by two modernlawyers (paraphrasing Blackstone), “immunitiesare . . . the natural rights we retain when we enterinto civil society, . . . privileges [are what] we gainat that time in exchange for surrendering certainof our natural liberties” (Shankman and Pilon1998).

From the beginning, the Constitution guar-anteed that “The Citizens of each State shall beentitled to all Privileges and Immunities ofCitizens in the several States.” But that federalguarantee was limited to citizens, and the defini-tion of citizenship was left to each state. In 1868,the Fourteenth Amendment extended citizenshipto “All persons born or naturalized in the UnitedStates” and thus extended the federal guaranteeof privileges and immunities to all such persons.Although initially targeted against the “black

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codes” that were emerging in the postwar South,the amendment was written broadly to protectall Americans against an abridgement of theserights by the states. Five years later, however, inthe tragically misreasoned Slaughterhouse Cases(1873), the Court stripped the FourteenthAmendment of these substantive protections,thus limiting the federal guarantees to dueprocess and equal protection. These proceduralguarantees, unfortunately, did not prove to besufficient to protect blacks against the legal dis-crimination that lasted for a century after theCivil War or business firms against the substan-tial increase in state regulation. A reflection onthis history led the two lawyers mentioned aboveto conclude: “Had the Slaughterhouse Court prop-erly read and applied the Privileges orImmunities Clause, we would doubtless havetoday a very different body of constitutional lawthan we have—and a very different nation, notleast in the area of race relations, but not therealone” (Shankman and Pilon 1998).

At great cost, the Civil War demonstratedthe power of the federal government to protectindividuals against an abuse of their rights by thestates. The Fourteenth Amendment provided theclear authority. And the federal role to defendcivil rights proved the importance of an occa-sional, forceful intervention to reassert thisauthority. The legitimate concern about a broad-er abuse of authority by the federal government

“The unique potential strength of a com-pound republic is the opportunity to useeach level of government to protect individ-uals against abuses of constitutional author-ity by the other level. Only power can checkpower.”

should not weaken this important federal role ina compound republic. For this role to be fullyeffective, moreover, the federal governmentshould reassert its authority to protect the privi-leges and immunities of individuals against

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unjust state action, so that the rights of individu-als are not dependent on the weaker proceduralguarantees of due process and equal protection.

STATE PROTECTIONS AGAINST AN ABUSEOF FEDERAL POWER

Sustaining a compound republic, however, alsorequires a countervailing power to protectagainst an unconstitutional assertion of powersby the national government. In the American sys-tem, the state governments are the logical andpossibly the only group with a sufficient poten-tial to serve this role. My position on this issue,however, differs strongly from the misleadingand divisive concept of “states’ rights.” First,governments have authorized powers, notrights; only individuals have rights. In theAmerican system, moreover, the state govern-ments are limited to those residual powers notdelegated to the federal government by theConstitution nor prohibited by it to the states.And these state powers do not include theauthority to limit those rights that are common toall citizens of the United States. For the UnitedStates to maintain a compound republic, stategovernments must have sufficient authority tocheck an abuse of power by the federal govern-ment but not enough to abuse the rights of peo-ple or organizations in the states. The history ofthe United States suggests that this may be a dif-ficult, but I hope not impossible, challenge toconstitutional design.

NullificationThe U.S. Constitution, in brief, does not establishan adequate procedure for forcing a constitution-al test of the assertion of undelegated powers bythe federal government (Niskanen 1980). ArticleV provides an adequate procedure for testing theconsensus on any formal amendment proposedby Congress or a convention, but there is no pro-cedure for forcing a constitutional test on issuesfor which the Supreme Court is unwilling orunable to enjoin the actions of Congress or thepresidency or of a decision by the Court itself. Inthat sense, the U.S. Constitution is asymmetric: avote by more than one-fourth of the states can

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block a formal amendment, but there is no corre-sponding procedure for even a majority of statesto force a constitutional test by enjoining achange in the effective constitution.

The procedural solution to this asymmetryis as old as the Magna Carta and has been circu-lating in the backwater of American political the-ory since the beginning of our Republic: someproportion of the parties to the constitutionalcontract must be able to enjoin the actions of the

“At great cost, the Civil War demonstratedthe power of the federal government to pro-tect individuals against an abuse of theirrights by the states. The FourteenthAmendment provided the clear authority.”

government established by that contract in orderto force a formal constitutional test of a unilater-al assertion of powers by the larger government.Clause 61 of the Magna Carta established agroup of 25 “guardians of the charter,” any fourof which could notify the king of violations of thecharter and, if not resolved within 40 days, bringthe matter to the other guardians. This famousclause, probably the contribution of StephenLangton, then Archbishop of Canterbury, wassubject to continuous attack by defenders of theroyal prerogatives and was omitted from laterversions of the charter when the king regainedpower.

The Kentucky and Virginia resolutions,written respectively by Jefferson and Madison,tried to establish a similar procedure in the newAmerican Republic in 1798. These resolutionsarticulated the concept that the exercise of undel-egated power had no force of law, but proposednothing more than a common appeal of the statesto Congress to repeal the Alien and Seditionlaws. The election of Jefferson and a RepublicanCongress in 1800 led to early repeal of those lawsbut deferred consideration of the basic constitu-tional issue.

John Calhoun raised this issue again in1832 in the South Carolina Ordinance of

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Nullification, declaring that the 1828 “tariff ofabominations” was unconstitutional and wouldnot be enforced in that state. This issue wasresolved by Congress in the compromise tarifflegislation of 1833. Calhoun, unfortunately, con-fused the case for a collective responsibility ofthe states to enjoin a breach of the Constitutionby the federal government with a nonviable con-cept of “states’ rights,” asserting that individualstates are “free, independent, and sovereign com-munities.” The state of Wisconsin next raised thisissue in 1859 to force a constitutional test of theFugitive Slave law; that confrontation wasresolved only when a newspaper editor who hadbeen arrested was pardoned a few days beforethe start of the Civil War.

The doctrines of nullification and interposi-tion have been criticized or dismissed by laterpolitical theorists, primarily because they wereused to defend slavery and the continued denialof civil rights to blacks. Americans have anunfortunate habit, however, of evaluating a legalconcept by the motivations of its advocates. Mostcontemporary Americans probably regard theAlien and Sedition laws, discriminatory tariffs,and slavery as repugnant. The doctrine of nullifi-cation, however, should not be evaluated by thefact that it was first used to attack bad law andlater used to defend other bad law, but rather bywhether it would, in general, promote law thatreflects the broad consensus of the population.The Civil War was the first major tragic failure tocorrect the constitutional flaw to which this doc-trine was addressed. The constitutional anarchyof our time, I suggest, is the result of the sameproblem. My reading of this history leads me toconclude that there is a fundamental flaw in theConstitution, a flaw that has led to occasionalproblems that have been resolved in an ad hocmanner that deferred a more general recognitionand correction of this flaw.

The prospect for liberal democracy, I con-tend, will depend on some constitutional reformthat would enforce a constitutional process ofconstitutional change. This reform should buildon the Framers’ concept of a compound republic.The federal government is now a more effective

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guardian of individual rights against an abuse ofpower by the states. The state governments, cor-respondingly, should be the “guardians of thecharter” of the federal government. AndrewJackson, in his response to Calhoun, was correctin asserting that the federal union could not sur-vive if each state could nullify federal law. It isalso important to recognize that a constitutionaldemocracy cannot survive the subjugation of anysubstantial minority. The constitutional reformthat derives from this analysis would be toauthorize some specified share of states to enjoinany federal law, regulation, or court ruling with-in some specified period. A specific amendmentto the Constitution consistent with these princi-ples would provide for the nullification of anyfederal action by the vote of more than, say, a

“The federal government should reassert itsauthority to protect the privileges andimmunities of individuals against unjuststate action, so that the rights of individualsare not dependent on the weaker proceduralguarantees of due process and equal protec-tion.”

majority of the state legislatures within one yearafter the date of the last vote. Such an amend-ment would be designed to force a constitutionaltest of any action and would be nearly symmet-ric with the present provision for approving con-stitutional amendments. This amendment wouldprovide a considerable period for both reasonedevaluation of the federal action and continuedfederal abuse of constitutional powers, but itshould protect the nation against both ephemer-al whim and an indefinite extension of federalpower. (William Watkins has recently proposed amuch-too-complicated amendment that wouldprovide formal authority for such a nullificationprocess.) The primary expected effect of such anamendment would be to force a compromise thatwould avoid exercise of the nullification authori-ty on most issues.

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SecessionOne other asymmetry in the U.S. Constitution, ofcourse, is that it provides specific rules for admit-ting or forming a new state but no rule for asecession. (In that sense, the Constitution is like aroach motel: you can get in, but you can’t getout.) This is a sensitive issue for Americans,because the Civil War, at great cost, seems tohave foreclosed the opportunity for secession.Almost all American politicians and politicalcommentators, however, until days before theCivil War, supported the authority of a state tosecede, even when, as was usual, they ques-tioned its wisdom (DiLorenzo 1998). Those pub-lic choice scholars who have addressed this issue,moreover, all conclude that a secession clause isdesirable if there is any threat of a geographical-ly based permanent coalition (Buchanan andFaith 1987, Lowenberg and Yu 1992, and Mueller1996). Most recently, for example, DennisMueller (1996) writes that

the danger always exists that some per-manent coalition forms and tyrannizesover a permanent minority. By allowingthe people in a contiguous area to secede,under some conditions, the constitutioncould protect against such future tyranny.Thus, a secession clause might be an opti-mal part of any constitution, [and] itseems more likely to be valuable in con-stitutions that join states than in those thatjoin citizens.

And Mueller concludes:

If there is one simple lesson to learn fromthe unfortunate experience of the UnitedStates regarding secession, it is that anyautonomous nation joining in a constitu-tional contract with other nations should,if it has any reason to fear that this con-tract may at some point prove to be to itsdisadvantage, require the precise stipula-tion in the contract of the conditionsunder which secession is possible.

This line of reasoning, which I share,invites questions about the desirable terms of asecession clause. First, secession should not be

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based on a casual or ephemeral decision. For thatreason, I suggest, secession might be conditionalon the approval by two successive votes in theaffected region, separated by, say, two years.Second, the secession clause should include clearprovisions affecting the disposition of the localassets and the general liabilities of the larger gov-ernment. Subject to these terms, secession shouldnot depend on the approval of the larger govern-ment.

My judgment, in summary, is that theauthority of a regional government to secedefrom the national government is a logical part ofthe constitution of a compound republic. Addinga secession clause to the U.S. Constitution, how-ever, does not seem to be worth the effort. The

“State governments must have sufficientauthority to check an abuse of power by thefederal government but not enough to abusethe rights of people or organizations in thestates.”

major potential fault lines in American politics—economics, ethnicity, religion, language, and cul-ture—are no longer very correlated with geogra-phy. Few people now have any significant loyal-ty to a state. One ironic effect of maintaining theUnion seems to have been a reduction of justthose types of regional tensions that led to theCivil War. As a consequence, the authority of astate to secede from the United States would nolonger provide much protection against a domi-nant coalition, such as those who receive net ben-efits from the federal government, that reflectsroughly equal representation among the states.For that reason, a secession clause in the U.S.Constitution would be an insurance policyagainst a dominant coalition that is geographi-cally based but one that is unlikely to be veryvaluable in the foreseeable future.

CONCLUSION

The effective constitution of the United States haschanged enormously from that the Framers

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designed, for the most part without formalamendment. The most important challenge isbroader than the issues addressed in this essay—to restore the idea of a constitution as a set of rulesthat the government itself may not change. Onlythen do the distinctive benefits and features ofthe constitution of a compound republic becomeimportant. One step at a time.

REFERENCES

Ackerman, B. 1991. We The People: Foundations.Cambridge: Harvard University Press.

Buchanan, J. M., and R. L. Faith. 1987. “Secessionand the Limits of Taxation: Towards aTheory of Internal Exit.” American EconomicReview 77 (December): 1023–31.

DiLorenzo, T. J. 1998. “The Great Centralizer:Abraham Lincoln and the War between theStates.” Independent Review 3, no. 2 (Fall):243–72.

Grossman, P. J., and E. G. West. 1994.“Federalism and the Growth ofGovernment Revisited.” Public Choice 79:19–32.

Hamilton, A., J. Madison, and J. Jay. [1788] 1961.The Federalist Papers. New York: NewAmerican Library.

Lowenberg, A. D., and B. T. Yu. 1992. “EfficientConstitution Formation and Maintenance:The Role of Exit.” Constitutional PoliticalEconomy 3: 51–72.

Migue, J. L. 1997. “Public Choice in a FederalSystem.” Public Choice 90: 1–4, 235–54.

Mueller, D. C. 1996. Constitutional Democracy.New York: Oxford University Press:330–34.

Niskanen, W. A. 1980. “The Prospect for LiberalDemocracy.” In Fiscal Responsibility inConstitutional Democracy, edited by J. M.Buchanan and R. E. Wagner. Dordrecht,Netherlands: Kluwer Academic Publish-ing: 157–80.

———. 1988. “The Erosion of the EconomicConstitution.” In Public Choice andConstitutional Economics, edited by J. D.Gwartney and R. E. Wagner. Greenwich,Conn.: JAI Press: xi–xiii.

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———. 1990. “Conditions Affecting the Survivalof Constitutional Rules.” ConstitutionalPolitical Economy 1, no. 2: 53–62.

Shankman, K. C., and R. Pilon. 1998. “Revivingthe Privileges or Immunities Clause toRedress the Balance among States,Individuals, and the Federal Government.”Cato Institute Policy Analysis no. 326.Washington: Cato Institute.

Watkins, W. J. 1999. “The Kentucky and VirginiaResolutions: Guideposts of LimitedGovernment.” Independent Review 3, no. 3(Winter): 385–411.

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