A major disagreement between James Buchanan and Anthony de Jasay is whether it is possible to devise a constitution that effectively constrains the state, limits its power and danger. Many other classical liberals and libertarians have struggled with the same question (including Friedrich Hayek), but the opposition between Buchanan and de Jasay is paradigmatic as the two thinkers offer two very different answers anchored in the same economic methodology: neoclassical, subjectivist, non-utilitarian, informed by public choice theory, and opposed to “social choice.” That Buchanan was much influenced by the American constitutional experience makes his theory especially relevant in this country, although its universal implications are obvious. As for de Jasay’s critique of Buchanan, it is deep and cannot be summarily dismissed.
James Buchanan argued that institutions can be devised that will constrain the state to stay within limits agreeable to all the citizens. These limits are defined by rules unanimously accepted in a virtual social contract. Each participant realizes that living in a peaceful society (as opposed to the Hobbesian “war of all against all”) is in his own self-interest, provided that he is not exploited by others. Hence, the need to create a state to enforce the social contract and to ensure that the state does not become an instrument of domination and exploitation. The constitution plays this role. Since each individual has a veto—the flip side of unanimity—everybody knows that all must agree to a basic social contract and state constitution if he is himself to reap the benefits of social life. This realization limits the possibility of holdouts, even if the adopted rules may still allow side payments to those who think that their overall situation in anarchy would be better.
(Two essential and not overly technical books are Buchanan’s The Limits of Liberty and, with Geoffrey Brennan, The Reason of Rules.)
Anthony de Jasay contends that a social contract is a fictitious and useless construction. Public goods can be provided privately, or else they should not be produced at all. A unanimous agreement even on general rules is impossible because it is equivalent to agreeing on their probabilistic consequences in terms of redistribution. Believing that a constitution can effectively constrain the state is wishful thinking. The regime of social choice (collective choice)—that is, of non-unanimous decisions imposed on all—created by a constitution cannot remain limited. Democratic politics will lead to redistributive coalitions vying to get more money and privileges from the government at the cost of fellow citizens. Entitlements and “public goods” will grow uncontrollably. When a decisive coalition (50% plus one) wants a constitutional amendment, it will get it, if only through reinterpretation of existing rules. Qualified majorities will not change that, for enough of their members can be bribed into switching sides. Under democracy, the constitution that will come to prevail is the power of a bare majority over an unrestricted domain.
(See notably my Econlib review of de Jasay’s Against Politics or, better, Chapter 2 of the book.)
American constitutional history over the past century and a half, as well as the current rapid erosion of constitutional constraints, certainly do not refute de Jasay’s theory. A similar story can be told about French constitutional history as well as the British sort of unwritten constitutions. But the anarchist ideal is not without difficulties either.
Sometimes, Buchanan and de Jasay seemed to converge via doubts that each raised about his own theory. De Jasay admitted that he would be happy if Buchanan were right that the state can be constrained (see my Regulation review of de Jasay’s Justice and Its Surroundings). Buchanan observed that the mounting desire of many (if not most) people to be treated like children by the state may imply that “the thirst or desire for freedom, and responsibility, is perhaps not nearly so universal as so many post-Enlightenment philosophers have assumed” (“Afraid to Be Free: Dependency as Desideratum,” Public Choice, 2015).
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The chained guard dog, by ChatGPT
READER COMMENTS
Max Molden
Jul 21 2025 at 11:45am
Interesting points, to which I want to add two things.
Firstly, a disagreement with you: “American constitutional history over the past century and a half, as well as the current rapid erosion of constitutional constraints, certainly do not refute de Jasay’s theory. A similar story can be told about French constitutional history as well as the British sort of unwritten constitutions.” As imperfect as our societies are——I must confess that I take our societies to be quite successful in upholding peace via the rules which we agree on. The vast majority of citizens needn’t fear the arbitrary actions of their rulers. I, at the very least, am able to live my life as I please largely. I’m not sure whether, in the history of mankind, this has been possible for large swaths of society.
Secondly, I want to point out that Buchanan in “Federalism and Individual Sovereignty” explicitly acknowledges that federalism, and by implication, a constitution is only necessary because of the imperfections of living together. He writes
For this we need a constitution, federalism, checks and balances. Not for the state as such.
Robert EV
Jul 21 2025 at 3:00pm
That quote. OMG the naivete. One person’s liberty is another person’s encroachment. This is obvious on its face, to anyone who has actually lived densely among other people, and has paid attention. Also, politics are not limited to the state (thus neither are political intrusions). But even if they somehow were, one person defending their liberty against intrusion by another would automatically call down the watchman state on them – to coerce them into liking or lumping the effects of the liberty of their fellow citizen upon them.
Jon Murphy
Jul 21 2025 at 12:05pm
This is a good blog post. The question you pose is a difficult one to answer. In a recent article in the Journal of Institutional Economics, Jacek Lewkowicz, Jan Falkowski, Zimin Lou, and Olga Marut find that the wording of a constitution can matter for its compliance (“Watch out for Words: Wording of Constitution and Constitutional Compliance,” Journal of Institutional Economics, 20:e35). Specifically, they find:
It certainly is an interesting question.
Craig
Jul 21 2025 at 2:10pm
The flaw is the US system is that the federal government is the sole arbiter of the extent of its authority.
” In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality.” — Federalist 39
I would suggest what history showed us is that what is needed isn’t so much an ‘impartial’ agency but rather an agency with an affirmative interest in preventing the federal government from acting beyond the scope of its enumerated powers.
steve
Jul 21 2025 at 2:24pm
I think once you give some entity the authority to enforce property rights all bets are off. You can try to limit the power of that entity but it will always depend upon the social norms of that group of people. OTOH, without such an entity you have anarchy and warlords.
Steve