The Founders Betrayed
Chapter 6: What Would the Founders Do?
6. 6.1 What would the Founders do? 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’....
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