Anthony de Jasay's vast contributions to our understanding of economics and politics span many domains, but his analysis of the nature and operation of the state tends to attract attention. It is thus not surprising that The State ( 1998) continues to be the main focus of interest in Jasay's work, but in the process other important contributions by Jasay pass relatively unnoticed or are at least underappreciated. One of the underappreciated but central insights in Jasay's work is the notion of unholy constitutional political economy. The essence of this insight is the consistent application of public-choice assumptions to the constitutional domain, with all the associated consequences. This article starts by outlining the standard public-choice approach to constitutions and then proceeds to present the main arguments of Jasay's critique and its main implications, with special emphasis on the contrast between Jasay's framework and that erected by James Buchanan and John Rawls. The analytical relevance of Jasay's contribution is then illustrated with two constitutional cases that can to a significant extent be considered symmetrical: the United States, to which Jasay himself devotes considerable attention in his reflections about the political economy of constitutions, and Portugal.
Public Choice on Constitutions
James Buchanan and Gordon Tullock provide the classical framework for the standard public-choice approach to constitutional political economy: "The individual will find it advantageous to agree in advance to certain rules (which lie knows may work occasionally to his own disadvantage) when the benefits are expected to exceed the costs. The 'economic' theory that may be constructed out of an analysis of individual choice provides an explanation for the emergence of a political constitution from the discussion process conducted by free individuals attempting to formulate generally acceptable rules in their own long-term interest" ( 1999, 7).
Several points in this approach are worth emphasizing. The first is the assumption of methodological individualism. The conjunction of this assumption with cost-benefit analysis provides much of the novel explanatory power of public-choice theory. Also important is the idea that political constitutions "emerge" from a process of discussion where individual deliberation and individual choice are assumed to play a key role in the development of the constitutional framework. Finally, the emphasis on long-term interests is also relevant, for reasons that are made clear later in this essay.
So far this vision is broadly consistent with general public-choice assumptions, but then a crucial element is introduced to distinguish individual participation in collective choice in the domain of constitutional politics from individual participation in collective choice in "ordinary," regular politics: in the context of "constitutional discussion," Buchanan and Tullock add, "the prospective utility of the individual participant must be more broadly conceived than in the collective-choice process that takes place within defined rules" ([ 1962] 1999, 7).
This apparently mild condition in fact introduces a sharp cleavage between "normal" parliamentary politics and constitutional politics. Within a framework of methodological individualism, assumptions about the outlook with which individuals enter a given collective-decision process are necessarily fundamental to the expected outcomes of that process. If individuals are deemed to regard their own prospective utility within the arena of constitutional decision making in a form that is substantially different from what occurs in "normal" politics, that view will necessarily entail important differences for the resulting theories and expectations in what concerns constitutions.
Buchanan and Tullock are clear in stating that their "theory of constitutional choice has normative implications only insofar as the underlying basis of individual consent is accepted" ( 1999, 7), which precisely emphasizes the central role played by the assumptions about how individuals engage in the constitutional process.
Within this contractual approach to the constitutional problem, having individual participants conceive "more broadly" of their "prospective utility" than in normal everyday collective-choice processes that take part within a given constitutional framework requires the assumption that in some fundamental way these same individuals are in a different position when deciding about a constitution. This fundamental difference--within a rationalistic and utilitarian methodology--will necessarily have to do with the knowledge that individual participants possess about relevant data concerning current and future states of affairs. To the extent that lack of knowledge generates uncertainty, individual participants in the constitutional process who decide rationally can be expected to indeed take a broader approach to their "prospective utility."
As Dennis Mueller explains when synthesizing public-choice approaches to the constitutional contract, "The minimum uncertainty needed to produce unanimous agreement on a constitution covering the full spectrum of possible actions is over future identities" (2003, 619). If individual participants have knowledge about future states of the world but are uncertain about their own individual identity (and thus about their own individual position in relation with those future states of the world), it will be rational for them to approach the constitutional negotiation with a broader interpersonal outlook. Another way to put it would be to stress that identity uncertainty in the constitutional domain nullifies the self-interested approach to politics that constitutes the essence of the public-choice approach to regular politics. By not being aware of their future identity (which in practice means not having a "self"), individuals can rationally be expected to enter the constitutional process without the self-interested bias that characterizes their choices and actions in other circumstances.
For Buchanan and Tullock, this identity uncertainty is consistently a key aspect of their vision of constitutional political economy:
Agreement seems more likely on general rules for collective choice than on the later choices to be made within the confines of certain agreed-on rules. Recall that we try only to analyze the calculus of the utility-maximizing individual who is confronted with the constitutional problem. Essential to the analysis is the presumption that the individual is uncertain as to what his own precise role will be in any one of the whole chain of later collective choices that will actually have to be made. For this reason he is considered not to have a particular and distinguishable interest separate and apart from his fellows. ( 1999, 78) Identity uncertainty propels individual participants to abstain from voting for constitutional rules that favor particular group interests. Because uncertainty prevents individuals from knowing whether they will end up in future winning or losing coalitions, it is rational--and in line with the "self-interest" of the individual who ignores his own "self'--to vote, so to speak, in the general interest of the (constitutional) community.
The whole standard public-choice approach to constitutional political economy thus crucially depends on the reasonability of the assumption of identity uncertainty. Buchanan and Tullock appear to consider this uncertainty nonproblematic: "The uncertainty that is required in order for the individual to be led by his own interest to support constitutional provisions that are generally advantageous to all individuals and to all groups seems likely to be present at any constitutional stage of discussion" ( 1999, 78-79). As explored later, this avoidance of what really is a serious problem provides the core target for Jasay's objections, with important implications for the way we ought to think about constitutional political economy within a public-choice approach.
Jasay's Critique of the Sanctity of Constitutional Rules
Under the standard public-choice approach, constitutional rules constitute a key tool for limiting the power of government and constraining different competing groups' ability to exploit democratic politics to the benefit of their own interests. As John Meadowcroft explains, "Normal, day-to-day politics, then, will be 'politics within rules,' political activity will take place within clear, unanimously agreed, constitutional boundaries"...