Contractarianism, constitutionalism, and the status quo

The constitutional political economy (CPE) approach as developed by James Buchanan places emphasis on supermajority rules—in particular, a unanimity requirement for constitutional change. Critics argue that this approach “privileges the status quo” in two problematic ways: (1) alternatives are treated unequally, because the status quo requires a smaller coalition to be “chosen” than any other institutional arrangement selected to replace it; and (2) individuals are treated unequally, because those who happen to support the status quo have excessive power to impose their will on the larger group, implying that a minority illegitimately is privileged to block change. This is a serious and important challenge. At the same time, we argue that critics have conflated two analytically distinct issues in arguing that the CPE paradigm (and constitutionalism more generally) “privilege the status quo”. Moreover, we aim to show that in rejecting the “privileged position of the status quo”, critics must confront an equally challenging task: Providing a “measuring stick” by which the legitimacy of the status quo, and changes to it, can be judged. It is precisely skepticism regarding the possibility of providing a criterion of legitimacy that is independent of agreement that leads to the peculiar position of the status quo in Buchanan’s thought.