Emergent politics and constitutional drift: the fragility of procedural liberalism
| DOI | https://doi.org/10.1108/JEPP-D-17-00016 |
| Date | 12 March 2018 |
| Published date | 12 March 2018 |
| Pages | 34-50 |
| Author | Alexander Salter,Glenn Furton |
| Subject Matter | Strategy,Entrepreneurship,Business climate/policy |
Emergent politics and
constitutional drift: the fragility of
procedural liberalism
Alexander Salter and Glenn Furton
Texas Tech University, Lubbock, Texas, USA
Abstract
Purpose –The purposeof this paper is to integrateclassical elite theoryinto theories of constitutionalbargains.
Design/methodology/approach –Qualitative methods/surveys/case studies.
Findings –Open-ended constitutional entrepreneurship cannot be forestalled. Constitutional entrepreneurs
will almost always be social elites.
Research limitations/implications –The research yields a toolkit for analysing constitutional bargains.
It needs to be used in historical settings to acquire greater empirical content. Need to be applied to concrete
historical cases to do economic history. Right now it is still only institutionally contingent theory.
Practical implications –Formal constitutions do not, and cannot, bind. Informal constitutions can,
but they are continually evolving due to elite pressure group behaviors.
Social implications –Liberalism needs another method to institutionalize itself!
Originality/value –Open-ended nature of constitutional bargaining overlooked in orthodox institutional
entrepreneurship/constitutional economics literature.
Keywords Constitutional bargain, Elite theory, Formal constitution, Informal constitution,
Politics as exchange, Procedural liberalism
Paper type Research paper
1. Introduction
A“constitution of liberty”(Hayek, 1960) enshrines political rules and procedures to protect
individual rights, while still enabling collective action to provide useful common goods.
Political architecture encompassing divided government and checks and balances –what
might be called “procedural”liberalism –is frequently the cornerstone of such constitutions.
But history suggests maintaining a constitution of liberty is quite difficult. De facto change
separatefrom de jure change, which Salter (2016)calls “constitutional drift”isthe norm, rather
than the exception. Our purpose in this paper is to develop a framework for better
understanding this political dynamic. We will make special reference to the institutions and
practices of the modern bureaucratic-administrative state, most clearly exhibited in the
western constitutional democracies. This is because constitutional drift in the West has
resulted in thesekinds of institutions, and becausethese institutions, even in theirearly forms,
contain the kernels of the transformative process from a constitution of liberty to a
constitution of social control[1]. Furthermore, we seek to understand the activitiesof political
entrepreneurs that underlie the process of institutional change in the context of this “drift.”
The framework we employ will be one of “political catallaxy.”Like the observable order
brought about by mutually adjusted individual plans on the market (catallactics),
discernable regularities exist in politics that are produced by the mutually adjusted plans of
individual political decision makers. This concept naturally follows from applying the tools
of economics (price theory) to political phenomena, as in Buchanan and Tullock’s (1962)
pioneering contribution. Just as these tools are used in commercial contexts to explain the
unplanned order of markets as a result of individual economizing behavior and the
“propensity to truck, barter, and exchange,”we will use these tools in the service of what
Journal of Entrepreneurship and
Public Policy
Vol. 7 No. 1, 2018
pp. 34-50
© Emerald PublishingLimited
2045-2101
DOI 10.1108/JEPP-D-17-00016
Received 22 August 2017
Revised 3 September 2017
4 September 2017
Accepted 4 September 2017
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/2045-2101.htm
JEL Classification —B5, H11, H83, P14, P16
34
JEPP
7,1
might be called an “emergent”theory of the modern state, one that focuses on deriving
outcomes from the particular political bargains made by holders of de facto political power
(e.g. Salter, 2015a, b). The tools themselves can be interpreted from a number of schools or
backgrounds, the most prominent being the Austrian (Hayek, 1948; Mises, 1949), Chicago
(Becker, 1976), and UCLA (Alchian, 1965; Alchian and Demsetz, 1973; Demsetz, 1967)
approaches to price theory.
While these tools have long been used to explain political phenomena, the “emergent”
approach founded upon these insights has been relatively unexplored. Wagner (2016;
see also 2007, 2012, and Eusepi and Wagner, 2017) has developed a theory of political
catallaxy the furthest; our framework here explicitly builds on his work. Perhaps most
similarly, Runstand Wagner (2011) devise a constitutional framework that diverges fromthe
conventional “pre-”and “post-constitutional”stages of rule selection. Rather than a sequential
selection of constitutional rules, they argue that the process occurs simultaneously within a
spontaneous order. Selection of the constitutional rules does not take place at some initial
starting point,or a single moment in time. Rather, the processis evolutionary, and the de facto
rules are constantly being chosen, altered, and bargained over. This “entangled”structure of
pre- and post-constitutional exchange will guide our argument going forward.
While political catallaxy has its roots in the Virginia school, its point of departure lies in
its characterization of the state. Virginia political economy traditionally characterizes the
state as a monolithic actor, such as a revenue-maximizing “leviathan”(e.g. Brennan and
Buchanan, 1980). Given citizens confront a state, that is a rational, internally coherent
maximizer, individuals who will be subject to the governance of the state have a strong
incentive to “get the constitution right,”e.g. specify the rules that will govern the operating
procedures for collective action (Brennan and Buchanan, 1985). These rules should empower
political procedures that enable the state to protect property rights and provide useful
collective goods, but prevent the state from preying on its citizens (Buchanan, 1975).
This view characterizes the constitution as a filter, constructed to permit low-cost collective
action that allows through generally productive policies, while preventing generally
destructive or discriminatory policies.
However, this approach to political economy presumes the state is, to use Hayek’s(1973)
terminology,an organization. That is, it presumesthe internal coherence of the statesuch that
it has a teleology, meaning its goals can be reasonably characterized by a single objective
function. Instead,the emergent approach of Wagner(2016) characterizes the state as an order:
a coordinated but unplanned, uncontrolled network of organizations that each operate
semi-autonomously, and are also entangled with the activities of various commercial
enterprises.The key question for a theory of political catallaxy is:“How d oes our approach to
politicaleconomy change when we recognize the stateis an order and not an organization?”In
other words, does “getting the constitutions right”have ambiguous meaning?
Although the tools of price theory lend themselves well to a theory of political catallaxy,
they have traditionally been employed in a rational choice theory of politics that
straightforwardly reduces outcomes to intentions. Thereis no room for an order-organization
distinctionin politics. Political outcomesare a direct result of the relevantindividuals’choices,
and these outcomes then “act upon”other social spheres. T his is intended to direct t hese
spheres to more-preferred locations in social space. Importantexamples of this approach in a
democratic context are Becker (1983), Persson and Tabellini (2002), and Wittman (1989).
A subset of this literature focuses on the importanceof the median voter model in determining
political outcomes. Politicaloutcomes in democratic procedures are determinedby the median
voter; political rents are exhausted by political competition; thus political outcomes can be
explained simply as th e electorate “getting what it wants.”
That this literature focuses on choice within democratic settings is understandable, given
the prevalence of liberal democracy today. However, there are strong reasons for suspecting
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Emergent
politics and
constitutional
drift
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