Constitutional Economics/Constitutional Politics

Why does the treatment of American constitutional politics presented in We the People depart so radically from models of constitutional deliberation developed in the type of constitutional economics pioneered by James Buchanan and Gordon Tullock? The paper defines three premises that account for the divergence, and concludes by proposing an inquiry into constitutional design that requires insights from both traditions. Dennis Mueller perceptively compares the standard treatment of constitutional choice presented in the pages of this Symposium with the story provided by We the People. On the one hand, constitutional economics elaborates the calculus of consent in cool and ever more mathematically sophisticated renderings; on the other hand, We the People displays the hot and incredibly messy process through which Americans have in fact hammered out the basic terms of their social contract. What, he asks, is at the root of this stark contrast? My answer begins by emphasizing the different ways the two approaches deal with the status quo. In constitutional economics, the initial distribution of entitlements is treated as if it were sacrosanct. It is only on this premise that Mueller can describe the Wicksell/Buchanan and Tullock requirement of unanimous consent as an “ideal” (Mueller:393). If preexisting power-holders do not have a just claim to their “entitlements,” unanimity is no longer appropriate. To the contrary, it would be utterly wrong to allow the beneficiaries of injustice to veto any collective effort to stop them from enjoying the fruits of oppression. Constitutional economics purchases its mathematical clarity only by ignoring this rather obvious point. Given its question-begging decision to sanctify the status quo, it confines itself to defining the (formidable) difficulties confronted by a constitutional assembly seeking to make government powerful enough to respond efficiently to market failure without allowing Leviathan to run out of control. This is, of course, a very difficult problem. Nonetheless, the American constitution has confronted a yet more difficult task. It has not only aimed to protect rights but to redefine them in ways that comport with changing understandings of public morality: Is it legitimate for one human being to enslave another? Do free men and women have a fundamental right to bargain collectively with their employers over the terms of their labor? Do they have the right to a guaranteed old-age pension after they have spent their adult lives working at low pay? These are the kinds of questions that have inspired constitutional movements over the course of American history. They do not involve the pursuit of Pareto-improvements, but the design of a different constitutional function: how to evaluate the legitimacy of a democratic challenge to the status quo on behalf of an evolving constitutional morality?