If we believe Janan Ganesh’s latest Financial Times column, America may be doomed. The column’s subtitle encapsulates the argument: “The revolt against [Trump] isn’t huge, and it isn’t about constitutional principle.” That is, the columnist argues, a large and decisive proportion of Americans don’t believe in constitutional principles that constrain the state (“Take No Comfort from America’s Trump Backlash,”May 7, 2025).
Constitutional political economy, an offshoot of the economic theory of public choice, studies the choice of social rules and institutions. If we accept the “critical normative presupposition” that the location of value lies exclusively in the individual but that anarchy is unfeasible or otherwise undesirable, the basic rules and institutions of a political society—its “constitution,” formal or informal—must meet the unanimous consent of individuals as in a social contract. At the social-contract stage, politics is exchange. The requirement of unanimity, as an ordinary economic exchange, prevents the domination of some individuals by others, including by those who control the state. Constitutional political economy analyzes the economics of constitutionalism, the rule of law, and the constraints imposed on the state. (See Geoffrey Brennan and James Buchanan’s The Reason of Rules and my Econlib review of the book.)
An interview of President Donald Trump by NBC’s Kristen Welker is relevant to constitutional political economy—for example:
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.
Mr. Trump did say that he will obey Supreme Court decisions, although other pronouncements of his and of his officials leave some doubt. At his inauguration, he swore the oath prescribed by Article II, Section 1, Clause 8 of the Constitution. He literally said:
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.
Wouldn’t “preserve, protect and defend” include “uphold”? Mr. Trump did not say “I don’t know” or “It depends on what my brilliant lawyers say.” Although today’s populists are not typically arguing for personal responsibility and integrity, they emphatically oppose experts, which must include lawyers.
Or is it that everything can be reinterpreted according to the interests of the interpreter or that alternative realities exist? We have observed many instances of this approach. In Springfield, Ohio, we were told by the president and the vice-president, Haitians ate the pets of good Americans; the Trump administration has already saved the lives of more than one-third of Americans if we believe Attorney General Pat Bondi when she did not say three-fourths); the US government cannot bring back prisoners it illegally sent to a foreign country and paid its government to jail them; and so forth.
To put the problem in a larger perspective, are constitutions incapable of “securing limited government and individual sovereignty,” as Anthony de Jasay argued? Or has the “end of truth” foreseen by Friedrich Hayek under socialism arrived in America?
Some goals of the Trump administration can be related to the defense of individual liberty, but they are relatively rare and compromised by the use of authoritarian means that will very likely accelerate the progression of Leviathan, whether Republican or Democratic. The promotion of personal loyalty over principles, the substitution of courtiers for advisers, the attacks on independent judicial institutions and due process, and a shameless disdain for truth have become a continuous spectacle.
Political tribalism is one of the hypotheses evoked by Ganesh to explain why more voters don’t react:
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 what Joseph Schumpeter, the economist of “creative destruction” fame, wrote about politics (Capitalism, Socialism, and Democracy, 3rd edition, p. 262), prefiguring observations by public choice economists (notably 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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A primitive politician and his primitive voters primitives, by DALL-E and this blogger
READER COMMENTS
Craig
May 10 2025 at 11:49am
“America may be doomed.”
I agree which is part of the reason why I support #nationaldivorce because I don’t believe the system to be redeemable.
“Some goals of the Trump administration can be related to the defense of individual liberty”
And even here the issue isn’t so much the paradigm but the DEGREE. The rhetoric of the Republican Party has at times seemed to support limited government/states rights, but at the end of the day the parties ultimately use the same constitutional paradigm. The issue isn’t so much about what the government CAN do, its more about what the government SHOULD do. For instance, RE: tariffs Trump’s use of emergency power was far more extensive than Biden’s use of tariffs against the likes of Chinese EV makers, but it IS the same kind of delegated statutory authority. Another example would be Tren de Aragua which we briefly discussed on this website and Professor Murphy** had an issue with Trump labelling the presence of TdA an invasion* and while we can discuss that and Trump/State Department labelling TdA an FTO, Biden had labelled them an ‘international criminal organization’ — again the same KIND of power, just utilized to a different degree. And really on the flip side, for instance Panama, Bush I just straight up invaded the place. Clinton put a cruise missile down the chimney at El-Shifa in Sudan, indeed Obama violated the sovereignty of Pakistan to get bin Laden, or more controversially he droned a US citizen Anwar Al-Awlaki. So the concept that the President can rely on a statute that confers authority to declare an emergency/exigent circumstances, and then to do ‘something,’ in various contexts, not just national security, about it has existed for my lifetime/living memory.
“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.” <– and if I have to be honest with myself and one of my strengths I think is that I at least have SOME insight into at least SOME of my shortcomings, I do this, though to be fair, it IS alot of money at stake. Of course I am no agency in any of this aside from having opinions, I do have these swashbuckling jobs and all and they’re nice but they do insist I show up (remote actually) and beyond that I have to worry about being a dad and all, right? My personal opinion is really of no consequence whatsoever.
My colleague in NJ recently got an RTO order from Chase and so now he had to buy a new commuter car since his old one was quite old and not something you’d want to bring on a commute of the distance he needs to travel, so we were discussing tariffs and I told him that the Biden tariffs on EVs, which Trump also did is targeting a vehicle like the BYD Seagull which was $10k less than the car he got and of course electric, he wouldn’t have to buy gas. Of course that would be more money for his 529 plan for his kids. And when one discusses another person’s kids you’ll often find out that’s really what parents care about. As for the red state / blue state divide, I view the blue state paradigm as a material threat to my living standards not based on what they might do but based on what they already DID when I lived in NJ. I’d get one of those clubs in the picture, but they’re Made in China so I am not sure if I would be able to afford the tariff!
*[lower court has subsequently ruled that Trump’s reliance on the AEA exceeded the scope of authority conferred by the statute. They did not rule that there was no invasion and therefore Trump couldn’t rely on the statute, they effectively ruled that even if it IS an invasion, what Trump wants to do exceeds the scope of authority of the statute itself. Separate and distinct from Trump labelling TdA an FTO]
**[I’m not calling you out!]
Pierre Lemieux
May 10 2025 at 12:47pm
Craig: If you argue that US presidents have been grabbing more power for quite some time and that we now see how dangerous this is, I agree. I also agree that all that is a matter of degree, but I would add that at some point, escaping tyranny becomes too costly for everyone. Or, to express the latter qualification in other terms, some changes in degree shift the whole paradigm. I would also add that everybody is interested in his own standard of living: this is both the main problem and the main opportunity of social life. The problem is conflict, domination, or war; the opportunity is to develop a free society.
Walt
May 10 2025 at 5:03pm
The one thing you consistently overlook ( or purposely ignore) is that the Biden administration and Democrats in general were guilty (often in spades) of all the violations you complain about with Trump and a rebellion against those violations are at least a strong factor in Trump’s reelection.
Biden openly defied SCOTUS on several occasions or cannily wielded his unconstitutional will as he waited for the cases to grind through the courts. His censorship programs defied the First amendment. His party’s wish list would eviscerate the Second. His party’s efforts to remove opposing candidates (and not just Trump) from state and national ballots were unprecedented attacks on the “democracy” the party presumes to defend, and its use of “lawfare” to criminalize opponents was (take your pick) Third World or Soviet.
Biden, who also swore an oath to uphold the law, blatantly broke it in allowing (take your pick) 10 or 12 million unvetted “migrants” to enter the country while evading the established “due process” to do so. He tampered with free markets under the auspices of unelected agencies that outlawed products that people want to buy, and if tne party remained in power, it planned to further violate the constitution by reapportioning the Senate, stacking the Court, giving statehood to DC and PR and federalizing elections.
You might then perhaps more fairly conclude from your particular point of view that the country’s merely gone from pillar to post or rock to hard place, or that history’s dialectic made a highly predictable swing.
Pierre Lemieux
May 10 2025 at 8:07pm
Walt: I partly agree with you and partly disagree. Let me focus on the disagreement, which I call the But Biden Syndrome. Usually, tyranny happens slowly as one ruler brings some bricks to the construction of Leviathan’s palace, the following one brings a few bricks on his own, and so forth. While criticizing the Nth one in the series, it is often not a useful argument to answer “But what about the Nth-1?” Of course, the Nth-1 was guilty of building tyranny, but this in no way excuses the Nth–especially if the Nth takes more daring and decisive steps than the Nth-1. Sometimes, I suspect that if Trump literally shot somebody on Fifth Avenue as he boasted he could do without losing his loyal supporters, some people would reply with a “but Biden” and say something like, “but Biden’s sons purchased a revolver!” (Some of his courtiers would probably add, “But, Mr. President, you saved the lives of the nine persons you did not shoot.”)
Walt
May 11 2025 at 6:20am
Well, I partly agree with you too. It just bugs me when there’s a failure to recognize, let alone to yowl about, the sins of N1 . In this case I think that many of the political excesses of N2 are direct political tit for the past identical tat. Or over-corrections of things (like immigration) that needed to be corrected.
steve
May 11 2025 at 6:44pm
Trump has rarely been the first in what he does, however a difference in degree is ultimately a difference in kind. The Aliens Act, just as an example, was used during an actual war and in retrospect most people think it was wrong. Trump is using it declaring an emergency that does not exist. He is declaring a number of emergencies that dont exist. Clinton brought in his wife, an unelected person, to run a health care commission. Trump brought in an unelected person with a few 25 y/o coders and gave them the power to fire govt employees, terminate contracts and decide to not spend money Congress had allotted in spending bills.
And has been pointed out by many others, someone else breaking the law doesnt mean the people you like get to do it also.
Steve
Jose Pablo
May 11 2025 at 10:55pm
things (like immigration) that needed to be corrected.
What needs to be corrected on this matter?
And even more relevant, how far back does it need “to be corrected?
MarkW
May 10 2025 at 7:43pm
The US was not doomed by a whole lot of egregious past government actions — not even when the egregious actions were fully supported by Congress and endorsed by the Supreme Court. Off the top of my head:
Dred Scott
US v Debs
Buck v Bell
Korematsu v US
Bowers v Hardwick
With Trump, he won the presidency with a thin majority, has a thin majority in Congress which seems to be in no hurry to pass bills to confirm his agenda, and approximately none of what he’s doing has had a final hearing before the Supreme Court. If the US wasn’t doomed in the past when there truly was strong majority support for the outrages above (across all three branches of government and the general public), it’s hardly likely to be doomed now.
Pierre Lemieux
May 10 2025 at 8:10pm
Mark: Perhaps you are right. I hope you are. But the presence and the power of the state have much increased since.
MarkW
May 11 2025 at 7:10am
“But the presence and the power of the state have much increased since.”
Have they really though? Is it now really conceivable today that the state would throw its critics into federal prison (Eugene Debs), order the forced sterilization of people it considered ‘unfit’ (Carrie Buck) or put an entire ethnic group of American citizens into concentration camps? Have you ever seen the photo of the army (yes, the <i>US army</i>) taking over the headquarters of Montgomery Wards and carrying the CEO out of the office because he refused to accept a forced labor deal imposed by the NLRB? Can you imagine any of that happening now — Trump or no Trump? I can’t.
The state may be larger, yes, but Americans in general seem much less willing to trust the experts and authority figures and do what they are told than they once were.
Warren Platts
May 12 2025 at 12:55pm
Lincoln, who was far more authoritarian than Trump ever thought about being, won the election with only 40% of the popular vote.
Mactoul
May 10 2025 at 11:46pm
What might be this individual sovereignty ?
And the individual is sovereign over what and where?
I don’t feel sovereign, and I wonder who ever feels it felt it.
Sovereignty is an attribute of a state which controls a certain territory with its might. This attribute is misapplied to individuals.
Jose Pablo
May 11 2025 at 11:03pm
which controls a certain territory with its might
But territories themselves don’t need to be controlled, only people do.
So, where does this state’s legitimacy to control individuals actually come from? Is it merely from its might?
If so, does that mean whoever has the greatest might also has the right to control individuals? To what extent?
That logic would suggest that any group of people is justified in attempting to surpass the state’s power, say, by funding a terrorist movement, whose only “error” in this absurd framework of yours would be failing to become mightier than the state.
nobody.really
May 12 2025 at 12:28am
Following the fall of the Soviet Union, there was much speculation about what government would arise in its place. At that time, I recall a political cartoon of a signpost at the branch of a snowy road. Footsteps revealed that two people had chosen the path labeled “Democracy.” The great bulk of the footsteps were on the path labeled “Sausage.”
This is definitely a matter of rationale ignorance: Throughout the world, the pent-up demand from the Covid years surged forth, driving up inflation. And throughout the world, the leaders of democratic nations lost re-election (at least until Trump came along and provoked non-Americans to rally around their leaders). Lots of people pay NO attention to politics, and vote on the basis of sausage-level concerns. I don’t know if that reflects a large portion of Americans—but I suspect it reflected a decisive portion.
“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.” Thomas Jefferson, letter to John B. Colvin (September 20, 1810) Or as they said in The Hunt for Red October, “We’re hear to preserve democracy, not practice it.”
Monte
May 12 2025 at 11:48am
Thus did Lincoln reason in suspending the writ of habeas corpus:
While Jefferson’s argument was hypothetical, Lincoln acted out of practical necessity. In retrospect, historians generally agree that Lincoln’s actions were justified under the circumstances. In both cases, the justification is rooted in Cicero’s Salus populi suprema lex esto (The welfare of the people shall be the supreme law).
BTW, the movie clip you linked to is from Crimson Tide.
Jose Pablo
May 12 2025 at 1:49pm
of self-preservation,
what form of self-preservation could justify action during “King Trump the Second”’s actual term?
Clearly, it must mean preservation from Trump, who is widely acknowledged as the greatest (maybe the only) threat our country faces right now.
Cicero’s Salus populi suprema lex esto
But how did he aggregate each individual’s well-being into the abstract “welfare of the people”? Vague, made-up variables like this have always been a tyrant’s favorite justification.
Beware any power that claims to know what “the people’s welfare” really is.
Jose Pablo
May 12 2025 at 9:46pm
“We’re hear to preserve democracy, not practice it.”
What a different time 1995 was.
Today, the idea of “preserving democracy” rings hollow. A line like that wouldn’t pass the laugh test anymore.
A more fitting line today might be:“We’re here to conquer Greenland by force.”“We’re here to make Canada the 51st state.”“We’re here to make sure Ukraine stops standing up to the Russian invasion.”
That’s the kind of rhetoric that would feel more aligned with the strategic cynicism shaping American foreign policy today.
Jose Pablo
May 12 2025 at 5:09pm
Are Constitutionalism and the Rule of Law Dying?
Yes, they are.
But the more interesting question is: was this outcome inevitable from the very beginning? Was it the only possible trajectory since 1776?
I tend to believe it was. Sooner or later, a Trump, or even worse, was bound to emerge and finish off the Republic, just as has happened with so many other attempts throughout history to shackle the Leviathan.
As long as the Leviathan is allowed to live, it will inevitably find a way to return, stronger, vengeful, and more deeply entrenched. The individual will never be truly free or secure from the tyrants who, sooner or later, will once again seize control of the state.
As Juan Linz warned in The Breakdown of Democratic Regimes:
“It is no accident that political actors who are highly indignant about the injustice of the social order are often ready to risk the stability of democracy, which for them is a lesser value than social change.”
The death of the American Republic, arguably the greatest attempt at institutionalizing individual liberty the world has ever seen, stands as tragic proof of this. As was the case in Spain (1936), Chile, Weimar Germany, and Venezuela, to cite but a few examples, the pursuit of transformative change, whether from the left or the right, has too often opened the gates for the very authoritarianism it claimed to resist.
Pierre Lemieux
May 13 2025 at 8:01am
Jose: This is Anthony de Jasay’s thesis, and it’s pretty persuasive. But when constitutionalism and the rule of law are in retreat, as they quite clearly are under Trump, we discover what we were missing. Anarchy (real, individualist-liberal anarchy) would offer more than what is lost under three conditions: (1) if it were stable in avoiding Hobbesian war; (2) if it were stable in front of international thuggish states, which is just a special case of #1; (3) if the rules (“conventions”) that developed to replace the rule of (liberal) law did not drift into tribal submission or other detestable trajectories. So we (“we” who attach value to individual choices) may have no other choice than to try to chain Leviathan. I agree that it is not going well. On the optimistic side, many bad things have happened since the 18th century, yet the ideal of individual liberty has always rebounded.
Monte
May 14 2025 at 12:52pm
To borrow from Twain, reports of the Republic’s death are greatly exaggerated. Her institutions have been severely tested, but remain intact. And referring to Trump as king or dictator no longer resonates. His constitutional rejoinders are more humor than candor, but very effective at riling up both his base and his detractors.
De Jasay’s thesis is intellectually provocative, but impractical. Anarchy is the epitome of individual liberty, but – in a stateless society – relies insuperably on voluntary cooperation to maintain order. Freedom without order becomes chaos, where power inevitably rushes in to fill the vacuum.
Monte
May 14 2025 at 4:21pm
This isn’t to suggest that Leviathan doesn’t remain a threat. The size and power of government, particularly within the executive branch, has grown significantly over time. A prescient reminder:
Vigilance is key.
Kevin Baldeosingh
May 13 2025 at 12:37pm
Don’t ever cite sound bites from corporate media on Trump to make an argument. He never said he doesn’t know if he has to support the Constitution.
Pierre Lemieux
May 13 2025 at 7:52pm
Kevin: Who says so? See https://www.youtube.com/watch?v=Dm3Ka5a86h0.