The Founders Betrayed
Chapter 2: The Founders’ Vision
INTRODUCTION A critical assessment of the burgeoning federal enterprise can proceed in many ways, and involve numerous dimensions of appraisal. Typically, however, the assessment is outcomes based and procedurally-detached, with economic efficiency and some measure of distributive justice as the ultimate standards of appraisal. Here, the approach is different. Attention centers on a comparison of federal on-, off- and off-off-budget activity with the post-constitutional federal role envisioned by the United States’ Founders. The comparison is informed by an appreciation of the Founders’ moral and political philosophy, their political economy and their understanding of the nation’s fundamental law, the Constitution. A recurring theme of the book is that much of what the federal government does is fundamentally discriminatory; that, whereas the Founders focused on fair, in the sense of impartial procedure, on the cultivation of virtue and on the reciprocal relationship between law and morality, modern statutory and administrative law is increasingly animated by the ‘politics of wants and needs’, and by the impulse to ‘perfect the economic market’. Modern liberalism, and the economic theory to which it is conjoined, social welfare theory, have been instrumentally important to this enterprise, as has a constitutional jurisprudence that has undermined both federalism and the separation of powers. I shall argue that, just as Madison feared, the relentless advance of the ‘responsive state’ has been underwritten by ‘the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress’...
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