Front Page Titles (by Subject) II.: Noncontractarian Constitutionalism - The Collected Works of James M. Buchanan, Vol. 10 (The Reason of Rules: Constitutional Political Economy)
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II.: Noncontractarian Constitutionalism - Geoffrey Brennan, The Collected Works of James M. Buchanan, Vol. 10 (The Reason of Rules: Constitutional Political Economy) 
The Collected Works of James M. Buchanan, Vol. 10 (The Reason of Rules: Constitutional Political Economy) Foreword by Robert D. Tollison (Indianapolis: Liberty Fund, 1999).
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As we emphasized in Chapter 1, the hallmark of the constitutionalist is the categorical distinction he makes between outcomes generated within defined rules and the rules themselves. Once this distinction is made, the effects of rules in constraining potential outcomes become obvious. Simple recognition of this linkage then prompts attention to the rules of social order as an object of inquiry and tends, almost necessarily, to generate an extended time dimension in all considerations of social policy or social change.
The constitutionalist, so defined, however, need not at the same time be contractarian. Understanding of, and respect for, the distinction between the rules that constrain behavior and the results of actions taken within the rules need not be derived from, or be the basis for, a contractarian position. Perhaps the most obvious example is the extreme conservative, the person who places value on existing rules because they do exist and have existed. Such a person may be constitutionalist in the full sense of the term; indeed, he may claim to be the only true constitutionalist since the ideal is a never-changing set of constraining rules.
A somewhat less extreme but closely related position is based on the recognition of the difference between rules as constraints and action within constraints but at the same time embodies the notion that the rules of social order are not artifactual creations subject to change. In this perspective, rules change slowly during the evolution of society. Although change takes place in the basic structure, it does so only through an organic evolutionary process. Hence, “reform” of the basic rules (of the constitution, broadly defined) is internally contradictory. The ordering function of social rules operates only because they are unchangeable in any directed sense.
A third position may retain apparent constitutionalist elements, but for reasons quite different from those that seem appropriate to the contractarian. A two-level structure of law may be envisaged, with the “higher law” embodying protection for a set of “natural rights” that people possess as human beings. In this interpretation, the “constitution” is that structure of institutions or rules that involves the protection of such natural rights, leaving to ordinary politics all other actions. And whereas the existing constitution may be modified, either in the direction of a closer correspondence with the desired protection of natural rights or in the direction of a further divergence from such idealized protection, there can be no change in the definition of the set of rights as such.
It is not our purpose to elaborate arguments that have been made in support of any one of the three positions sketched. Our intention is merely to indicate that each of the positions may have elements that seem constitutionalist in the common dialogues of the day. The contractarian rejects the first two positions because of the basically negativist implications they generate. If the rules of the socioeconomic-political game are not themselves artifacts subject to constructive change, there is little left to do but to endure the forces of history. The arguments advanced by both the status quo reactionary and the nonconstructive evolutionist are perhaps good counters to the romantic ramblings of those who speak naïvely about human perfectibility, but surely we must be given hope that the institutions of social order are subject to reform and change. If for no other reason, there would seem to be a moral obligation on the part of the social philosopher to provide such hope.
The differences between the contractarian and natural-rights theorists arise from quite other sources than do the differences between status quo reactionaries and evolutionists. The contractarian derives all value from individual participants in the community and rejects externally defined sources of value, including “natural rights.” The discussion in Section II is as germane to the argument against the natural-rights position as it is to all other positions that derive value from external and nonindividualistic sources.