By Chidem Kurdas and Thomas McQuade
In our previous post, Thomas argued that voter feedback is weak in constraining the exercise of legislative power. Chidem countered that the other fundamental constraint, the constitution, is therefore all-important. Commentators were divided, with cogent arguments pro and con. We continue this discussion.
Chidem: Constitutionalism is the idea of subjecting political power to rules that stand above that power. The concept took a long time to develop and became effective only in some societies. Its roots go back to the Magna Carta of 1215 in which King John of England accepted limits to his authority and an earlier Charter of Liberties. Today’s struggles about the US Constitution are but another chapter in this long history.
Public choice pioneer and Nobel-prize winner James Buchanan powerfully made the constitutionalist case. Geoffrey Brennan and Buchanan offer this definition in The Reason of Rules (1985): “the essence of the constitutionalist approach is that political action (including the making of laws) be conducted according to certain rules (or meta-rules).”
In the alternative view, majority voting is the ultimate source of morally legitimate political power and there should be no constraints on it. Buchanan and Roger Congleton (Politics by Principle, Not Interest, 1998) argue that in the absence of meta-rules politics devolves into majority-seeking deals where some benefit at the expense of others.
The main practical objection against constitutionalism is that it does not work. The US Constitution does not stop myriad impositions by the politically powerful on the politically weak. The country is arguably not far away from the non-constitutional endpoint Buchanan and Congleton warn against, when “The Hobbesian warre is simply transferred to the realm of institutionally organized conflict.”
Effective constitutions don’t come out of nowhere; they emerge because many people think that way. “Without a shared ‘constitutional mentality’ … all argument on design comes to naught. Persons must be cognizant of the reason of rules …”, according to Brennan and Buchanan. Compared to this, whether a constitution is written or not and the exact form it takes are secondary matters. The UK and the US, where a constitutional mentality took root, were bastions of freedom compared to other countries.
While subject to erosion like all institutions, constitutions are the only tool humanity has developed to control political power—and it took millennia to get there. As we saw, voting is a weak constraint. If you reject meta-rules for political action, then everything goes. There is no framework for even trying to restrain the war of interests.
There is the notion that people will someday, somewhere learn to live without government and therefore without a constitution. Maybe on a planet far, far away, intelligent beings will figure a new way to govern themselves and stay free. Good for them.
For us, without an effective constitution we’re left totally at the tender mercy of absolute power, whether of King John or pork-trading majority coalitions.
Thomas: One problem is that, contrary to constitutionalist hopes, constitutional rules don’t really stand above political power. They bend to it. That is why the most successful constitution to date, the US one, has been unable to withstand erosion, as you note. The power to regulate commerce among the several states has blossomed into the power to regulate anything in the economy, since the economy in principle knows no state boundaries. The requirement to provide for the general welfare is an open invitation to define, to one’s own conceptions, what the general welfare consists of. And so on.
Buchanan (Freedom in Constitutional Contract, 1977) ascribes the trend to “pragmatic drift” brought about by short-sighted tampering, but gives no real reason why an exponent of constitutionalism would be able to write a better constitution, less prone to eventual erosion than the one we have. His only antidote for drift is a combination of “education” (with a view to inculcating a “constitutional attitude”) and the reemergence of a willingness to undertake the rigors of constitutional reform.
But any society-wide structure which relies on the participants’ intelligence, far-sightedness or public-spiritedness for its stability is doomed to collapse.
While there is much scope for criticizing constitutionalism empirically, I think a deeper problem is that it has a fundamental conceptual flaw. Its constraints are intended to limit the scope of legislation, but not to change the character of legislation as fixed universal rules. As such it is part of a centralized arrangement for the production of rules whose application is one-size-fits-all.
This is in contrast with an adaptive system of customary law, a decentralized arrangement allowing for local experimentation and effective feedback, a complex of procedures whose emergent restraints cannot be implemented directly simply by specifying a list of declarative rules. Your claim that without constitutional rules there can be no framework for restraint ignores this third possibility.
Agreed, it is not an existing possibility. Constitutions, like all of the current mechanisms of centralized power, cannot simply be done away with, but – if we don’t want either worse tyranny or chaos – will have to be gradually superseded by the growth of decentralized arrangements.
One reason for engaging in social theory is to understand the possibilities that could be, and not to assume that our current best efforts at constraining coercive power are necessarily the best possible and that anything else is science fiction.