Can a Constitution Limit the State?

In the realm of political philosophy, a significant rift exists between James Buchanan and Anthony de Jasay regarding the feasibility of crafting a constitution that effectively limits state power and mitigates its inherent dangers. This debate is not merely academic; it echoes throughout the thoughts of numerous classical liberals and libertarians, including Friedrich Hayek. However, the contrasting positions of Buchanan and de Jasay stand out, showcasing two distinct interpretations rooted in a common economic framework: neoclassical, subjectivist, non-utilitarian, informed by public choice theory, and critical of “social choice.” Buchanan’s theories, shaped significantly by the American constitutional experience, resonate particularly well in the United States, although their implications extend universally. De Jasay’s critique of Buchanan is thorough, warranting serious consideration rather than a hasty dismissal.

Buchanan posits that it is indeed possible to establish institutions that restrain the state within boundaries acceptable to all citizens. These boundaries are defined by rules that everyone agrees upon, akin to a virtual social contract. Here, each individual recognizes that a peaceful society—contrary to Hobbes’ notion of a chaotic “war of all against all”—serves their self-interest, provided they are not subjected to exploitation by others. This realization underpins the necessity for a state to enforce the social contract and prevent itself from becoming a tool of oppression. The constitution, in this framework, fulfills this role. With each individual holding a veto power—the flip side of unanimity—there exists a collective awareness that all must consent to the foundational social contract and constitutional framework to enjoy the benefits of social interaction. This collective understanding curtails the risk of dissenters, even though the agreed-upon rules may permit side payments to those who might believe their situation under anarchy would be preferable.

(For those interested, essential readings on this topic include Buchanan’s The Limits of Liberty and his co-authored work with Geoffrey Brennan, The Reason of Rules.)

Conversely, Anthony de Jasay challenges the validity of the social contract concept, deeming it a mere illusion devoid of practical utility. He argues that public goods can either be supplied through private means or should not exist at all. The notion of achieving unanimous agreement on general rules is, in his view, a pipe dream, as it necessitates consensus on the unpredictable outcomes related to wealth redistribution. De Jasay contends that the belief in a constitution’s capacity to effectively restrict state power is nothing more than optimistic naivety. The regime of social choice—characterized by non-unanimous decisions imposed on the populace—emerged from constitutional frameworks cannot remain contained. He warns that democratic politics will inevitably give rise to redistributive coalitions that seek to extract greater financial benefits and privileges from the government at the expense of their fellow citizens. Consequently, entitlements and “public goods” will expand uncontrollably. When a simple majority (50% plus one) desires a constitutional change, it can achieve this, often through reinterpretation of existing rules. Even qualified majorities cannot safeguard against this, as enough members can be lured to change their allegiance. Under a democratic system, the prevailing constitution becomes one of majority dominance over an unbounded arena.

(For a deeper exploration of this perspective, see my review of de Jasay’s Against Politics on Econlib, or better yet, Chapter 2 of the book.)

Historical observations of American constitutional evolution over the past century and a half, alongside the current rapid decline in constitutional constraints, certainly lend credence to de Jasay’s arguments. Similar narratives can be drawn from French constitutional history and the British model of unwritten constitutions. Nevertheless, the anarchist ideal is not without its own complexities.

Curiously, at times, Buchanan and de Jasay appear to find common ground through the uncertainties each has about their respective theories. De Jasay has expressed that he would be pleased if Buchanan’s assertion—that the state can indeed be constrained—holds true (see my Regulation review of de Jasay’s Justice and Its Surroundings). Buchanan has noted that the growing desire among many (if not most) individuals to be treated like children by the state suggests that the “thirst or desire for freedom and responsibility may not be as universally held as many Enlightenment thinkers have posited” (“Afraid to Be Free: Dependency as Desideratum,” Public Choice, 2015).

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