Can a Constitution Limit the State?

A major disagreement between James Buchanan and Anthony de Jasay is whether it is possible to devise a constitution that effectively constrains the state, limits its power and danger. Many other classical liberals and libertarians have struggled with the same question (including Friedrich Hayek), but the opposition between Buchanan and de Jasay is paradigmatic as the two thinkers offer two very different answers anchored in the same economic methodology: neoclassical, subjectivist, non-utilitarian, informed by public choice theory, and opposed to “social choice.” That Buchanan was much influenced by the American constitutional experience makes his theory especially relevant in this country, although its universal implications are obvious. As for de Jasay’s critique of Buchanan, it is deep and cannot be summarily dismissed.

James Buchanan argued that institutions can be devised that will constrain the state to stay within limits agreeable to all the citizens. These limits are defined by rules unanimously accepted in a virtual social contract. Each participant realizes that living in a peaceful society (as opposed to the Hobbesian “war of all against all”) is in his own self-interest, provided that he is not exploited by others. Hence, the need to create a state to enforce the social contract and to ensure that the state does not become an instrument of domination and exploitation. The constitution plays this role. Since each individual has a veto—the flip side of unanimity—everybody knows that all must agree to a basic social contract and state constitution if he is himself to reap the benefits of social life. This realization limits the possibility of holdouts, even if the adopted rules may still allow side payments to those who think that their overall situation in anarchy would be better.

(Two essential and not overly technical books are Buchanan’s The Limits of Liberty and, with Geoffrey Brennan, The Reason of Rules.)

Anthony de Jasay contends that a social contract is a fictitious and useless construction. Public goods can be provided privately, or else they should not be produced at all. A unanimous agreement even on general rules is impossible because it is equivalent to agreeing on their probabilistic consequences in terms of redistribution. Believing that a constitution can effectively constrain the state is wishful thinking. The regime of social choice (collective choice)—that is, of non-unanimous decisions imposed on all—created by a constitution cannot remain limited. Democratic politics will lead to redistributive coalitions vying to get more money and privileges from the government at the cost of fellow citizens. Entitlements and “public goods” will grow uncontrollably. When a decisive coalition (50% plus one) wants a constitutional amendment, it will get it, if only through reinterpretation of existing rules. Qualified majorities will not change that, for enough of their members can be bribed into switching sides. Under democracy, the constitution that will come to prevail is the power of a bare majority over an unrestricted domain.

(See notably my Econlib review of de Jasay’s Against Politics or, better, Chapter 2 of the book.)

American constitutional history over the past century and a half, as well as the current rapid erosion of constitutional constraints, certainly do not refute de Jasay’s theory. A similar story can be told about French constitutional history as well as the British sort of unwritten constitutions. But the anarchist ideal is not without difficulties either.

Sometimes, Buchanan and de Jasay seemed to converge via doubts that each raised about his own theory. De Jasay admitted that he would be happy if Buchanan were right that the state can be constrained (see my Regulation review of de Jasay’s Justice and Its Surroundings). Buchanan observed that the mounting desire of many (if not most) people to be treated like children by the state may imply that “the thirst or desire for freedom, and responsibility, is perhaps not nearly so universal as so many post-Enlightenment philosophers have assumed” (“Afraid to Be Free: Dependency as Desideratum,” Public Choice, 2015).

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