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.
Pierre Lemieux
Jul 21 2025 at 3:39pm
Max: You write:
What do you mean by “Not for the state as such”?
Max Molden
Jul 22 2025 at 2:03am
The state/commonwealth/Leviathan is what people establish through their consent. It means that people agree on certain rules according to which they live together. It is distinct from the Sovereign/government that is to rule, enforcing these rules and thereby resolving conflicts. To illustrate, citizens can lose trust in and change their government without dissolving their commonwealth.
Now, the commonwealth, as what people consent to, is analogous to any private exchange. Consequently, for this commonwealth to exist is unproblematic. Moreover, for the government, the people’s mandatee, to rule is unproblematic. But this is true only as long as the government does what people mandate it to do, as long as it only employs legitimate coercion. This is what I mean when saying that the state as such is unproblematic. The state and its government are simply cooperative, consensual endeavours, strictly analogous to cooperation in the private realm.
So, only once it may happen that our commonwealth’s government exerts coercion beyond its mandate—or rather, once it violates its mandate—is it problematic. Only for this, and nothing else, do we need such things as federalism or checks and balances. And I take Buchanan to express the same idea in the passage I quoted.
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.
Pierre Lemieux
Jul 21 2025 at 3:34pm
Jon: Thanks for the reference. I just ordered the article from the library.
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.
Robert EV
Jul 21 2025 at 3:08pm
A year later the 9th amendment nominally put paid to this principle by limiting the sovereignty of the states (as did the 14th and 15th). Unfortunately the courts don’t seem that inclined to recognize individual liberties other than those explicitly spelled out in the other amendments.
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
Pierre Lemieux
Jul 21 2025 at 3:32pm
Steve: To enforce property rights? The problem is much worse if those in power have the power to satisfy any desire. “What can I do for you?”
Robert EV
Jul 21 2025 at 3:03pm
I believe the anarchists had a solution that might also work for a non-anarchist state: Assassins. Who, protected by the constitution, would exercise their duties against and authoritarian impulse.
Pierre Lemieux
Jul 21 2025 at 3:30pm
Robert: The Venice solution? See https://www.econlib.org/dictatorship-a-matter-of-incentives/. But how to prevent those in power from bribing the executioner? And how to prevent the executioners from grabbing power?
Robert EV
Jul 21 2025 at 3:56pm
I think the answer to 1 is that they wouldn’t know who they were to bribe, and for 2 in that the assassins don’t know all of their fellows. 2 is much more difficult to do these days with forensics and data gathering as advanced as they are.
I think the bigger deal is 3: Small groups of assassins independently deciding to off officials who the other groups of assassins don’t think should be offed. And for 4, In the Annals of the Chosen trilogy by Lawrence Watt-Evans, the Wizard Lord gets paranoid about the Chosen (especially the hidden member of the Chosen), and not only sets out to assassinate those he knows about, but behaves in a more tyrannical manner in general, eventually leading to the fall of their form of government.
Ah yes, I now remember reading your post when it first came out.
Peter
Jul 21 2025 at 11:41pm
I believe Jim Bell in his “Assassination Politics”* had developed a workable implementation of this; too bad he was jailed for writing it. Good old land of the freedom of speech /s.
* If it can still be found, not sure if it went down the memory hole like so many other things in the 21st century.
David Seltzer
Jul 21 2025 at 6:06pm
Pierre: Difficult question(s) to be sure. Is it possible to devise a constitution that effectively constrains the state, limits its power and danger? Even with a constitution, we see “Entitlements and “public goods” will grow uncontrollably,” financed with budget deficits and burgeoning debt imposed and many by a few in power. De Jasay, as you point out, in his Against Politics, defends anarchy as the theoretical solution to all these problems of the state in general and the social contract in particular.” Theoretical solution and Realpolitic present a problem. De Jasay’s anarchy has not been tried to know if it is the better alternative to a constitutional state. Can all the problems of social contract be remedied with anarchy? It seems we don’t enough evidence to accept or reject that hypothesis.
Pierre Lemieux
Jul 21 2025 at 10:34pm
David: Indeed, the lack of experience of anarchy (except in primitive tribes and organized states!) is a bit of a drawback. This being said, if one had been told in the 15th or 16th century (and in most societies for the near totality of mankind’s history) that large and impersonal societies could prosper with freedom of religion, freedom of speech, free trade, education for women, and such, the experience counterargument would have seemed decisive. General anarchy, of course, is a bit more difficult to imagine. But I think that the direction in which to aim should not be controversial: individual and private choices as opposed to collective and political choices.
Mactoul
Jul 22 2025 at 12:11am
Liberal societies exist because the genes for impulsive violence were greatly weeded out by the millennia of living under states. See Steve Pinker Better Angels of our Nature.
It wasn’t done by preaching but the simple yet radical expedient of capital punishment meted out pretty freely.
David Seltzer
Jul 21 2025 at 6:10pm
Meant imposed on the many by a few in power. Apologies.
Monte
Jul 21 2025 at 6:35pm
As elegant as his theory may be, de Jasay’s stateless society – where coalitions and conventions effectively substitute for government – is untenable. The stateless society wouldn’t prevent coercion (the very bane of de Jasay’s existence), it would simply privatize it.
Buchanan’s observation about a widespread “fear of freedom” and a strong preference for security over self-determination is more prevalent among younger generations today than anytime in the past. Alea iacta est!
Pierre Lemieux
Jul 21 2025 at 10:21pm
Monte: Conventions (spontaneous rules of conduct) do play a crucial role in de Jasay’s thought. Community relations also play a role. But not coalitions, except perhaps if you mean by “coalitions” the poorest 50%+1 who are after redistribution from the 49%-1 who are the richest. But he also has a concurrent theory about individuals and groups demanding more and more from the state and being more and more discontent as the demands of all cannot be satisfied: if that’s what you mean, I agree, but I don’t think the word “coalition” renders this idea.
Monte
Jul 21 2025 at 10:48pm
I see. Perhaps “clique” or “coterie” might be more consistent w/de Jasay’s concept of an informal rule-making group rather than “coalition”?
Mactoul
Jul 21 2025 at 10:26pm
Soviet Union had the finest Constitution in the world at the time of the cult of personality. Clearly, Constitution doesn’t protect liberties of a people.
The premise itself is redolent of a disregard of the importance of brute force, particularly by economists.
Has Jasay considered the all-important question of stability of anarchy especially stability against rise of stationary bandit?
Mactoul
Jul 22 2025 at 12:33am
Problems with democracy were identified by Plato and Aristotle and captured poetically by Kipling in a fundamentally anti-liberal poem The Gods of Copybook Headings
It is striking that these problems do not arise in pre-liberal states where the self-interest of the rulers is rather open and the rulers do not pretend to greatly care about well-being of their subjects.
But liberalism is ameliorism run amok. Things must be improved, must be changed. Reform! Reform! everywhere and every time,
Hence, the only corrective to unrestrained ameliorism is a conservative tendency which did serve Britain and US. A gradual formation of political community which treasures its past. Countries that lack this element are cruelly devastated by the dose of democracy.
Unfortunately for the theory, the political community is apparently not amenable to the kind of analysis preferred in the economics.
Mactoul
Jul 22 2025 at 1:30am
Does the social contract only restrains the state or does it restrain the individuals as well?
And are we allowed to ask what happens when unanimity is not obtainable? As it rarely is, in our world.
There might be some who do not wish to join the contract and there might be some whom the rest do not wish to have join. What happens to them? Are they supposed to just leave?
These questions are rather pertinent right now in the West where there is a large and growing contingent of people whose adherence to the Western social contract is apparently tenuous and selective.
Jose Pablo
Jul 22 2025 at 4:49am
And are we allowed to ask what happens when unanimity is not obtainable?
Markets
Pierre Lemieux
Jul 22 2025 at 9:45am
Mactoul: Jose is right, and this is crucial to understand: each time there a trade, there is unanimity. Same when individuals voluntarily create or join any sort of voluntary association.
Jose Pablo
Jul 22 2025 at 4:30am
whether it is possible to devise a constitution that effectively constrains the state, limits its power and danger.
No, it isn’t.
At least not if by “constitution” you mean a rulebook enforced by the very state it is meant to restrain.
But anarchy only becomes difficult at the edges. It is remarkably easy away from them. In every decision to be made, “government” must err on the side of expanding the realm of the individual and shrinking the realm of collective decisions.
If by “constitution” you mean a well-established set of social norms rooted in that belief, then yes — it may be achievable. The goal is to make any attempt by the state to expand collective decision-making feel as abhorrent as slavery feels to us today.
In that sense, Buchanan was right: the main obstacle to restraining the state is not “rulers”, but a whole breed of would-be slaves and another of would-be plantation masters, willing to risk becoming slaves themselves for a slim chance to hold the whip.
Jose Pablo
Jul 22 2025 at 4:42am
In other words, the main difficulty in properly restraining the state lies in our deeply rooted bias against markets.
A social norm that strongly favors markets — both as a method of resource allocation and as the only legitimate way to make decisions — would significantly curb government expansionism.
To the point that any further debate about reducing the size of government would become as abstract and irrelevant as discussing the sex of angels.
Pierre Lemieux
Jul 22 2025 at 9:52am
Jose: Hayek’s life work revolves around the idea (which you evoke) that humans still have tribal instincts that must be overcome to create and maintain the Great Society. As you know, his last book, The Fatal Conceit, is basically about that.
Daniel Kuehn
Jul 22 2025 at 9:40am
It’s interesting to me how in the first paragraph you state the problem this way:
And then in the second paragraph you switch to defining it this way:
These are two very different things. With some important exceptions (which you will get in the course of human history) the U.S. Constitution has done the first thing for 250 years (although it’s being tested brutally now). I doubt the second version has ever been achieved unless you’re counting constitutions or by-laws for very small communities. Buchanan’s point on the second version is an idealized model (that’s not a criticism, idealized models have value) that he moved away from in certain ways during his career.
Daniel Kuehn
Jul 22 2025 at 9:43am
(Noting for the nitpickers that a quarter of a millennium is just a nice round number)