The Founders Betrayed
Chapter 3: The ‘Old Court’ at Work
INTRODUCTION The burgeoning federal enterprise described in Chapter 1 may be accounted for in many ways. Some may argue that it is the natural consequence of majoritarian democracy; that rent seeking and majoritarian cycling are endemic to the system, with the growth of government a natural outcome of self-interested ‘factious’ behavior. In fact, this appreciation of unrestrained majoritarian democracy is not new. The Founders understood that the ‘limited [federal] government’ that they envisioned required that man’s innate moral sense, the inclination to treat others as ends rather than as means, must be supplemented by procedural restraints on postconstitutional, majoritarian democracy. This fundamental insight was informed by the Founders’ moral and political philosophy. And central to their moral and political philosophy was a prior ethical commitment to the moral equivalence of persons. This commitment found expression in their procedurally based, consequence-detached political economy, and in the ‘auxiliary precautions’ embedded in the Constitution (see Chapter 2 in this volume). The point is not that the Founders could not imagine the expansive and expanding role of the federal government. The point is that what they feared might happen, has happened. It has happened, I suggest, because their moral and political philosophy has been displaced by modern liberalism, a public philosophy to which is conjoined an outcomes based, institutionless and intendedly value-free political economy. If this means that the Founders’ understanding of rights as the product of self-government has been replaced by a theory of rights as trumps against the Founders’ constitutional restraints, it...
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