For an upcoming intensive colloquium featuring graduate students from all across the country, I’m discussion leader. Among the readings (in the selection of which I played no role) is my and Adam Pritchard’s 1993 Fordham Law Review article, “Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process .” It’s been years since I last read this article in full. Two passages in it jump out at me as relevant to the scandal unleashed by the publication of Nancy MacLean’s Democracy in Chains.
The first is in footnote 88 on page 134, in which Adam and I wrote that “[James] Madison’s agency cost perspective anticipates a major theme in Buchanan & Tullock….” The ‘Buchanan & Tullock’ publication to which we refer is their 1962 book, The Calculus of Consent . Remember, Adam and I wrote these words nearly a quarter-century before MacLean’s absurd attempt to deny the existence of a connection between Madison’s thought and Jim Buchanan’s political-science scholarship and, specifically, Jim’s theorizing about constitutions.
Of course, this passage doesn’t prove MacLean to be mistaken, but it is evidence that the claim of a connection between Madison’s work and that of Buchanan is hardly as outlandish as MacLean wants her uninformed readers to think. (All informed readers of MacLean’s book see immediately the absurdity of MacLean’s attempt to discredit Buchanan’s claim that Madison was a major inspiration for public-choice scholarship. A reliable test for how informed MacLean’s readers are is their response to her book. Those who find Democracy in Chains to be persuasive, or even worthwhile, thereby virtually prove their ignorance about the subject-matter of the book.) More generally, given that The Calculus of Consent was published 55 years before the publication of Democracy in Chains, if MacLean’s charge in this latter book about the absence of the influence of Madison is correct, it’s more than extraordinarily odd that no one before now has come along to challenge the long-claimed connection between Madison’s writings and those of Buchanan and other public-choice scholars. It’s simply unbelievable that an historian who is so clearly not conversant in political philosophy or political science would be the first to make this remarkable discovery.
The second germane passage from my and Adam’s article is on pages 139-140 and includes within it a 1789 quotation from James Madison:
In addition to reducing agency costs, the Bill of Rights precommits [that is, restrains] the majority against certain actions. Certainly the drafter, James Madison, saw the Bill of Rights as an important precommitment device:
[I]n a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.
James Madison – like James Buchanan, Gordon Tullock, and nearly every other thinker for the past 2,500 years who has pondered democracy – understood both the dangers of unlimited majoritarianism and its likelihood in the absence of constitutional and other institutional restraints. The fact that MacLean leaps from Buchanan’s recognition of the dangers of unlimited majoritarianism and his support for constitutional restraints on majorities to the conclusion that Buchanan was a singular enemy of the people and foe of democracy would be comical if her book were not being taken seriously in some quarters.