Hayek's The Constitution of Liberty - Institute of Economic Affairs

h ay e k ’ s t h e c o n s t i t u t i o n o f l i b e r t y
o r i g i n s a n d d e v e l o p m e n t o f t h e r u l e o f l aw
source of higher principles, resolves to follow them long-term. By
doing so, a people gains ‘more control over the general nature of
the political order than they would possess if its character were to
be determined solely by successive decisions of a particular character’
(181–2).
American constitutionalism was centrally concerned with
limiting representative legislatures. To this end, the federal
Constitution divided power among three branches of government,
enumerated legislative powers, and opened the door for
the judiciary to invalidate laws that conflict with the Constitution.
Hayek is silent about some crucial checks on the US Congress –
its division into two ‘Houses’ which must agree with each other to
enact laws, and the presidential veto.
As for the executive, Hayek is critical of constitutional provisions
that ‘led to the formation of a presidential republic.’ Under
this arrangement, ‘the chief executive derives his power directly
from the people and, in consequence, may belong to a different
party from that which controls the legislature.’ Hayek objects that
this arrangement erects an ‘obstacle to the efficiency of the executive;’
but later he suggests a deeper reason for avoiding a presidential
republic – the prospect that the executive, in the name
of the people, will undertake measures that endanger freedom.
Thus Franklin D. Roosevelt, convinced that he knew best how to
deal with the Great Depression, ‘conceived it as the function of
democracy in times of crisis to give unlimited powers to the man
it trusted.’ Among other measures, Roosevelt attempted in 1937
to gain control of the Supreme Court by increasing its size and
packing it with judges who supported his policies. This effort was
defeated in the US Senate – a case where the legislature acted to
curb unwarranted executive power (186, 190–91).
The issue of majority rule is central to Hayek’s discussion of
American constitutionalism. Mainly he relies on a distinction that
the American founders had employed, one between the majority’s
often ill-considered short-term will and its more deliberate longterm
will. The Constitution’s democratically minded critics fault
it for structuring government so as to thwart the majority will.
Hayek replies that ‘a constitutional system does not involve an
absolute limitation of the will of the people but merely a subordination
of immediate objectives to long-term ones.’ Thus the people
agree ‘to submit to the will of the temporary majority on particular
issues’ on ‘the understanding that this majority will abide by more
general principles laid down beforehand by a more comprehensive
body,’ such as a constitutional convention (179–80).
Culmination in Germany
Each of the nations that contributed to the growth of the Rule
of Law responded to a particular threat to individual freedom:
England to arbitrary monarchical power; America to representative
legislatures and majorities fixed on short-term goals; and
Germany to the administrative state.
The ‘German people’ had a complex political history during
the period of Hayek’s review, and it is sometimes difficult to tell
just which phase of that history or which German states he has in
mind. The German Confederation was formed in 1815, following
the defeats of Napoleon. It was comprised of 39 states, with
Prussia and Austria being the dominant members. In 1866, with
the victory of Prussia and its German allies in the Austro-Prussian
War, the German Confederation was dissolved; and that year the
North German Confederation was established by Prussia and
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