Constitutionalism: Point/Counter-Point

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.   Continue reading

Russell Hardin on Constitutions as Coordination Devices

by Gene Callahan

This is an excerpt from a longer work of mine. While I thought it possibly of interest to readers here, they will have to excuse me if in some places I refer to ‘another part of this work’ or something of the sort:

A leading contemporary constitutional theorist, Russell Hardin, rejects the currently popular contractualist understanding of constitutions, as represented above by Buchanan and Tullock. In its place, he proposes, offering an understanding somewhat more compatible with Oakeshott’s case against rationalism, that constitutions are ‘coordination’ devices, not contracts. He recognizes the force of a case such as de Jasay’s against constitutional contractualism, since a constitution lacks the third-party enforcer characteristic of meaningful, potentially effective contracts.

In the absence of such an external arbiter, he contends, ‘A constitution, if it is to work in bringing about and maintaining social order, must be self-enforcing’ (1999: 89). Much like a social convention to drive on a particular side of the road, a successful constitution must incorporate incentives for individual actors to adhere to it of their own accord. Continue reading