Introduction

The analytical core of constitutional political economy is located in the categorical distinction between two sets: (1) alternative constraints or rules and (2) alternative positions or outcomes attainable within separately defined constraints. Almost all discussion has proceeded on the presumption that there exists some “natural,” or empirically derived, basis for this distinction. The familiar explanatory reference is to ordinary games (poker, tennis, basketball), where there is surely universal recognition of the distinction between “the rules,” which indeed define the game itself and which must be explicitly chosen through some process, and the outcomes or solutions that emerge from the interdependent choices among strategies made by the players whose behavior is constrained by the rules that are chosen.

The extension to politics is not so simple as it may appear to be, even to those who share the American sense of constitutional order, with its categorical difference between constitutional law and ordinary legislation. Here the distinction between the choice among constraints and choices made within constraints becomes evident, but the analogy from ordinary games breaks down because outcomes within rules are explicitly chosen; political outcomes do not emerge from the interdependent choices made by separate participants as is the case in ordinary games. Nonetheless, the distinction remains central to the analytical exercise. And, in an even broader perspective, political philosophers who seek to ground political legitimacy in consent or agreement must necessarily place the formation of the basic social contract at a level or stage of choice that is categorically separate from the give and take of ordinary politics.