Constitutional Political Economy – Essay #1

Limiting Governance Through a Constitutional DemocracyCompiled by: Alex LetzoThe study of constitutionalism rest on the assumption that a constitution can have an impact on the scale of government and can even limit the scope of said governance. Therefore it is important to analyze the positive effect a constitution can actually have on limiting a government by studying what attributes a constitution should have. These attributes can range from how the constitution is coordinated with the society, the size of government the constitution will allow, and the question of whether a constitution is even a requirement in limiting governance.

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In a world plagued by a multitude of political philosophies and constitutions, one

would expect a prevailing philosophy to emerge naturally throughout the course of

history. This emergence could occur due to unintended consequences, stemming from

various actions and institutions, that allow for an evolutionary process to naturally

develop which no single individual could accomplish. Currently, we have not yet seen a

constitution emerge that could legitimately limit governance over a long-term period of at

least one generation of youth. We measure length of time in generations due to the fact

that a change of generation normally implies a change in thought and incentives of

society. This change in thought and incentives is what affects the coordination of the

people and how people cooperate in regards to governance. The lacking of a constitution

that could limit governance over the long run does not imply that no advancements in

social theory have been made. On the contrary, there have emerged a variety of possibly

effective theories regarding the ability to limit governance, however their implementation

into a single constitution has not been achieved due to the transaction cost and the

workability of attempting to alter or update existing constitutions. The theories that will

be mentioned in this paper involve the works of Russell Hardin on the necessity of

coordinating a constitution with the populace and James Buchanan calling for a need to

empower and constrain a government. These works, combined with democracy and a

tangible constitution, are the building blocks for attempting to create a workable society

that has limited governance.

The first aspect of attempting to limit governance falls under the category of

defining and framing a constitution. This phase, defined by James Buchanan as the initial

constitutional contract, involves mutual agreements on some structures of rights.

(Buchanan, P.38) However for this work, we will use Russell Hardin’s definition of a

constitution that views a constitution not as a contract, but the element that coordinates

the institution of contracting. (Hardin, P.87) With Russell Hardin’s definition of what a

constitution achieves, we can begin to indulge on why a constitution is required in the

first place if it is merely a coordination of mutual agreements. To begin, a coordination of

mutual agreements on a structure of rights is not enough to build a nation upon. When

creating a democracy, it is vital to have a thorough understanding of the basic rules about

the rules that are going to be enforced, such that the populace is able to self-enforce said

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rules about the rules. This statement stems from the fact that a democracy requires the

participation of all members of the society by definition of popular sovereignty. The

governance will not have an effective degree of workability if the people do not have a

concrete foundation of their coordination on the institutions, norms, or practices. After

all, we are considering a democracy, which operates on the basis of mutual agreement

and therefore has some degree of acquiescence. So it is by design that some members of

the populace are against the general coordination of the nation and thus the ideas and

rules are not inherent in their thought and practices. However, with the founding of a

constitution, the people are now aware of what coordination the majority sides with and

therefore the minority also knows what to be acquiescent about. So the inclusion of a

constitution in founding a society is important because it relays the coordination of the

majority of people to the entirety of the populace and therefore allows for self-

enforcement of said coordination through acquiescence.

Now we need to consider that the effect of a constitution is minimal, at best, if it

is not properly coordinated with the populace. This argument was advanced through the

works of Russell Hardin, where he argues that a constitution is not a contract but

coordination on big issues of general structure and protection. (Hardin, P.84) This is an

important distinction because a constitutional contract does not imply that the there exists

wide agreement on the core issues at hand. Moreover, if a wide agreement on the core

issues does not exist, then there will exist no self-enforcing element of adhering to the

constitution that will be practiced by the majority of the populace. This is vital to a

society because without self-enforcement, governance must partake in authoritative

practices. In general, authoritative governance only last so long as the transaction cost of

revolution are greater than the transaction cost of remaining acquiescent. In addition,

authoritative governance is not a limited government and thus violates the very core issue

that a constitution tries to resolve. Therefore, one can conclude that coordination is

essential in limiting governance because it allows for self-enforcement of a constitution

once the constitution is framed and established.

Now that the need for a constitution with coordination has been established, we

can begin to indulge on what degree of empowerment and constraint will be able to limit

governance in conjunction with democracy. The choice of democracy is a simplistic one

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because it allows popular sovereignty and thus is the most plausible candidate in

attempting to limit governance through a constitutional framework. Democracy is not

enough however in achieving this goal because it is only effective so long as it is

constrained, but not constrained to the point that it has no power. This is where the advent

of checks and balances comes into play because one can only fight power with a

magnitude of equal power. Checks and balances allow for a distribution of power that is

challenging to corrupt but fails when the overall democratic system is given too much

power. The reason behind this is simple, if the government is given too much power, it

will continue to implement institutions and amendments that may decay or erode the

system of checks and balances. It is important to note that I speak of governance as an

entity, like Leviathan, however it is merely a way of framing departmental collusion, in

the system of checks and balances, that work toward the goal of more power to control.

Now since power will always corrupt individuals, it is important to the survival of

democracy to follow the minarchist political framework. This is realistically the only way

to limit governance using democracy because as shown, any additional power vested to

the government will eventually lead to the obtainment of more power. So in order for one

to limit governance and still allow for workability, there cannot be liberalism in

conjunction with democracy. Therefore, democracy conjoined with minarchism is the

only way to coordinate the needs of the people by protecting their core rights and nothing

more.

Thus in order to limit governance with constitutionalism, you need to limit

governmental power with a system of checks and balances. Furthermore, the constitution

must follow a minarchist framework where only institutions of protection are

implemented and no moral institutions are considered. Coordination of the constitution

with the views of the people is a must in order for the system to be self-enforcing. It is

also worth noting that limited governance is the assumed coordination of the people for

the purpose of this paper and therefore a minarchist framework is proper. Finally, for all

other decisions regarding commerce and trade, one can only allow for markets to reign in

this realm of decision-making because there is no other institution that can gather every

individual’s preference to such a degree.

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