Are Constitutionalism and the Rule of Law Dying?

If we were to take Janan Ganesh’s latest Financial Times column at face value, we might conclude that America is teetering on the brink of disaster. The subtitle succinctly encapsulates the core argument: “The revolt against [Trump] isn’t huge, and it isn’t about constitutional principle.” In essence, Ganesh posits that a significant portion of the American populace appears ambivalent about constitutional constraints on governmental power. (See “Take No Comfort from America’s Trump Backlash,” May 7, 2025.)

Exploring this further, constitutional political economy—a branch of public choice theory—examines the selection of social rules and institutions. If we accept the premise that value resides primarily in the individual and that anarchy is either unrealistic or undesirable, then the foundational rules of any political society—its “constitution,” whether formal or informal—should ideally be based on unanimous consent, akin to a social contract. At this stage, politics becomes a matter of exchange. The necessity for unanimous agreement acts as a safeguard against the tyranny of the majority, including the potential for state control over individuals. Constitutional political economy dives into the economics surrounding constitutionalism, the rule of law, and the constraints that should be placed upon the state. (Refer to Geoffrey Brennan and James Buchanan’s The Reason of Rules and my Econlib review of the text.)

In light of this, consider an interview featuring President Donald Trump conducted by NBC’s Kristen Welker, which offers some insights related to constitutional political economy:

KRISTEN WELKER:

But even given those numbers that you’re talking about [the “million or 2 million or 3 million trials” that would be required before deportation], don’t you need to uphold the Constitution of the United States as president?

PRES. DONALD TRUMP:

I don’t know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation.

Trump professed his intent to obey Supreme Court decisions, yet his past statements and those of his administration evoke a sense of skepticism. At his inauguration, he took the oath mandated by Article II, Section 1, Clause 8 of the Constitution, stating:

I, Donald John Trump, do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. So help me God.

One might ask whether “preserve, protect and defend” would inherently include the notion of “uphold.” However, Trump’s response—“I don’t know” or “It depends on what my brilliant lawyers say”—seems to reflect a broader populist trend that typically dismisses the importance of accountability and integrity, while simultaneously harboring a profound distrust of experts, including legal professionals.

This raises the question: can everything be interpreted in a manner that aligns with the interests of the interpreter, suggesting the existence of alternative realities? We have witnessed numerous examples of this phenomenon. For instance, in Springfield, Ohio, we were informed by both the president and the vice president that Haitians were consuming the pets of good Americans. Additionally, Attorney General Pat Bondi claimed that the Trump administration had saved the lives of more than one-third of Americans, a statement that was not as clear-cut as it initially appeared; the government cannot simply retrieve prisoners it hastily dispatched to foreign lands and compensated their governments to incarcerate them; and so on.

To contextualize this issue, we might ponder whether constitutions are inherently incapable of ensuring “limited government and individual sovereignty,” as posited by Anthony de Jasay. Has Friedrich Hayek’s prediction of the “end of truth” under socialism already manifested in America?

While some objectives of the Trump administration can be linked to the defense of individual liberty, they are few and often compromised by authoritarian approaches that could exacerbate the growth of Leviathan, whether under Republican or Democratic leadership. The prioritization of personal loyalty over fundamental principles, the replacement of genuine advisers with sycophants, the systematic undermining of independent judicial institutions and due process, and a brazen disregard for the truth have merged into a continuous and alarming spectacle.

Ganesh attributes the lack of a robust voter reaction to political tribalism:

For some voters, political tribe offers the sense of belonging that religious affiliation once did, before church membership declined in the US. The fellow feeling, the structure, is so dear to them as to override all ethical qualms, just as a worshipper won’t have a word said against an obvious low-life of a pastor. The left isn’t so different.

We may also recall economist Joseph Schumpeter’s observations regarding politics in his work Capitalism, Socialism, and Democracy (3rd edition, p. 262), which echoes the insights of public choice economists (particularly the concept of rational ignorance):

The typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his own interests. He becomes a primitive again.

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