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 6: What Would the Founders Do?

Timothy P. Roth

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


A REPRISE America’s Founders embraced a prior ethical commitment to the moral equivalence of persons. This idea informed their moral and political philosophy, their political economy, their understanding of the Constitution, and their vision of post-constitutional republican self-government. Given their conception of the right, the moral equivalence of persons, the Founders were not, indeed they could not be, utilitarians. If, as I have argued, the Founders would not countenance a moral and political philosophy committed to distributive justice and to the promotion of ‘want’ and ‘need’ satisfaction, they were concerned with the specification of permissible ends, and with the promotion of just, in the sense of impartial, constitutional and post-constitutional statutory law. Indeed, the Constitution’s Madisonian ‘auxiliary precautions’ were animated by the idea that the Constitution must both reflect and promote respect for the moral law; by the idea that restraints on the federal government are a sine qua non for equal political participation and, therefore, for liberty, and by the idea that, if the effects of narrowly self-interested discriminatory ‘factious’ behavior are to be mitigated, ambition must be set against ambition. It is in this sense that, for the Founders, federalism, the separation of powers and the other ‘auxiliary precautions’ were both instrumentally important, and intrinsically valuable. The Founders’ procedurally based, consequence-detached moral and political philosophy was conjoined to a political economy whose desideratum is decidedly not the maximization of preference based ‘social welfare’ or the promotion of outcomes based ‘social justice’. Whereas the economist’s utilitarian theory of the...

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