Politicians, Economists and the Supreme Court at Work

Politicians, Economists and the Supreme Court at Work

The Founders Betrayed

Timothy P. Roth

Presented as an engaging thought experiment, Politicians, Economists and the Supreme Court at Work examines the metastasizing federal role through two different means: first, as it relates to the increasing concerns of a contemporary nation, and second, the depth to which that nation’s Founders would be appalled by the actions of their successors. Additionally, the book provides a critical appraisal of the burgeoning federal enterprise and the federal government’s ‘on-, off-, and off-off’ budget activities – ultimately answering the question, ‘What would the Founders do?’

Chapter 5: The Politics and the Economics of Wants and Needs

Timothy P. Roth

Subjects: economics and finance, law and economics, political economy, law - academic, law and economics, politics and public policy, political economy


AN OVERVIEW During the early years of the republic, the United States’ political economy, and the public philosophy to which it was conjoined, were reflective of the Founders’ vision. Today, that vision has been lost. Sadly, the trajectory of change has been both inconsistent with the Founders’ prior ethical commitment to the moral equivalence of persons, and corrosive of their constitutional restraints on self-interested factious behavior. This, in turn, has underwritten an expansion of the scope and reach of federal power and activity that would have found no place in the Founders’ imagination (see Chapter 1). As we saw in Chapter 2, the Founders embraced a theory of the right, the moral equivalence of persons. With this in mind, they emphasized the moral imperative to promote just, in the sense of impartial, institutions. Given their prior ethical commitment, the Founders sought, through a system of constitutional ‘auxiliary precautions’, to insure what has been called the fair value of political liberty (see Chapter 2). Federalism, the separation of powers and the other constitutional restraints on majoritarian democracy were intended both to constrain discriminatory behavior and to promote respect for the moral law. Nothing in the Founders’ republican self-government project contemplated either the satisfaction of ‘wants and needs’ or the achievement of ‘distributive’ or ‘social’ justice. What mattered to the Founders was a Constitution that sought to institutionalize impartial procedure, and a post-constitutional politics characterized by impartial, in the sense of non-discriminatory, statutory law. The Founders’ procedurally based, consequence-detached moral and political...

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