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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 ([1985] 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 he 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" ([1962] 1999, 7).
Several points in this approach are worth emphasizing. The first is the assumption of methodological individualism. The conjunction of this assumption with costbenefit 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...