Odyssean Constitutionalism: Good Constitutional rules are designed to resist precisely those situations when leaders feel the urge to break them. (Julia R. Cartwright, 11/10/25, Law & Liberty)
Good constitutional rules are general, abstract, and equally applied with no special favors for friends, no special burdens for enemies. They are framed without reference to named persons or groups, and they do not depend on the virtue of whoever currently holds office. Because, as Hayek emphasizes, none of us knows our future station, we might be a majority today and a minority tomorrow, we have reason to support constraints that protect us in bad situations as well as good. Buchanan and Tullock’s seminal work, The Calculus of Consent, presents the economic logic behind the significance of constitutional rules. They describe how people living under uncertainty seek rules ex ante that make cooperation cheaper than conflict, reduce the opportunity for rent extraction, and limit the scope of high-stakes, winner-take-all politics. Stable, general rules transform zero-sum political contests into positive-sum production by clarifying rights, lowering transaction costs, and letting entrepreneurs mitigate uncertainty. The aim is to channel self-interest not through the hope of benevolent officials, but through institutions that make predation costly and production rewarding.
Constitutional rules, therefore, must be designed to resist precisely those situations when leaders feel the urge to break them. They should be difficult to change, with costly procedures like supermajorities, multiple veto points, judicial review, and federalism, so that no faction can recalibrate the rules in a spasm of partisan passion. Yet they also need orderly adaptability: amendment procedures and interpretive doctrines that allow learning from experience without relying on emergency exceptions. Constitutional law invites citizens to consent to the constraints because they know that, in the long run, the surplus from stability dwarfs the thrill of short-run victories. The general and abstract nature of these known rules makes it possible for millions of strangers to coordinate their plans without central command. Applying this to our First Amendment protection of free speech, a bright-line commitment to protect even offensive, foolish, or hateful expression, paired with narrow, content-neutral limits for truly imminent threats, provides the predictability society needs. Open-ended carve-outs like “misinformation,” “hate,” or “national morale” invite partisans to weaponize enforcement. The reason we do not trust discretionary censorship is not that we deny harm, but that we know human beings cannot wield such discretion impartially.
The Odyssean analogy is apt. We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing.
