Are Constitutionalism and the Rule of Law Dying?

If we believe Janan Ganesh’s latest Financial Times column, America may be doomed. The column’s subtitle encapsulates the argument: “The revolt against [Trump] isn’t huge, and it isn’t about constitutional principle.” That is, the columnist argues, a large and decisive proportion of Americans don’t believe in constitutional principles that constrain the state (“Take No Comfort from America’s Trump Backlash,”May 7, 2025).

Constitutional political economy, an offshoot of the economic theory of public choice,  studies the choice of social rules and institutions. If we accept the “critical normative presupposition” that the location of value lies exclusively in the individual but that anarchy is unfeasible or otherwise undesirable, the basic rules and institutions of a political society—its “constitution,” formal or informal—must meet the unanimous consent of individuals as in a social contract. At the social-contract stage, politics is exchange. The requirement of unanimity, as an ordinary economic exchange, prevents the domination of some individuals by others, including by those who control the state. Constitutional political economy analyzes the economics of constitutionalism, the rule of law, and the constraints imposed on the state. (See Geoffrey Brennan and James Buchanan’s The Reason of Rules and my Econlib review of the book.)

An interview of President Donald Trump by NBC’s Kristen Welker is relevant to constitutional political economy—for example:

KRISTEN WELKER:

But even given those numbers that you’re talking about [the “million or 2 million or 3 million trials” that would be required before deportation], don’t you need to uphold the Constitution of the United States as president?

PRES. DONALD TRUMP:

I don’t know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation.

Mr. Trump did say that he will obey Supreme Court decisions, although other pronouncements of his and of his officials leave some doubt. At his inauguration, he swore the oath prescribed by Article II, Section 1, Clause 8 of the Constitution. He literally said:

I, Donald John Trump, do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. So help me God.

Wouldn’t “preserve, protect and defend” include “uphold”? Mr. Trump did not say “I don’t know” or “It depends on what my brilliant lawyers say.” Although today’s populists are not typically arguing for personal responsibility and integrity, they emphatically oppose experts, which must include lawyers.

Or is it that everything can be reinterpreted according to the interests of the interpreter or that alternative realities exist? We have observed many instances of this approach. In Springfield, Ohio, we were told by the president and the vice-president, Haitians ate the pets of good Americans; the Trump administration has already saved the lives of more than one-third of Americans if we believe Attorney General Pat Bondi when she did not say three-fourths); the US government cannot bring back prisoners it illegally sent to a foreign country and paid its government to jail them; and so forth.

To put the problem in a larger perspective, are constitutions incapable of “securing limited government and individual sovereignty,” as Anthony de Jasay argued? Or has the “end of truth” foreseen by Friedrich Hayek under socialism arrived in America?

Some goals of the Trump administration can be related to the defense of individual liberty, but they are relatively rare and compromised by the use of authoritarian means that will very likely accelerate the progression of Leviathan, whether Republican or Democratic. The promotion of personal loyalty over principles, the substitution of courtiers for advisers, the attacks on independent judicial institutions and due process, and a shameless disdain for truth have become a continuous spectacle.

Political tribalism is one of the hypotheses evoked by Ganesh to explain why more voters don’t react:

For some voters, political tribe offers the sense of belonging that religious affiliation once did, before church membership declined in the US. The fellow feeling, the structure, is so dear to them as to override all ethical qualms, just as a worshipper won’t have a word said against an obvious low-life of a pastor. The left isn’t so different.

We may also recall what Joseph Schumpeter, the economist of “creative destruction” fame, wrote about politics (Capitalism, Socialism, and Democracy, 3rd edition, p. 262), prefiguring observations by public choice economists (notably rational ignorance):

The typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his own interests. He becomes a primitive again.

******************************

(0 COMMENTS)