The Aspirational Constitution
29 Pages Posted: 25 May 2011
Date Written: May 19, 2011
Firmly embedded in every theory of judicial decision-making lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decision-making. For example, the theory of government reflected in the United States Constitution reveals what one would call a "realistic" view of human nature – i.e., a view that is more alert to the absence of human virtues than to their presence, a view that is skeptical of the ability of human beings to govern themselves without the prior imposition of severe institutional self-restraints. There is no visible "democratic faith" in this Constitution. In other words, the model of human nature that guided the framers assumed that both the rulers and the citizenry are rational, self-interested, utility-maximizing individuals who will be unable to govern themselves wisely without the imposition of severe institutional restraints on their power.
The framers feared that some would abuse their power by seeking to advance their own selfish interests through political activity. This self-interest might take form in the organization of narrow special interest groups designed to transfer wealth to themselves from the population as a whole. Thus, the U.S. Constitution was the first constitution in world history expressly designed to confront the problems of interest-group opportunism by channeling and constraining the self-interest of politicians and their constituents.
The purpose of this essay is to place the essays by James B. Thayer and Robert F. Nagel in the context of the framers' view of human nature. Basically, my argument is that Thayer's view of the role of the judiciary is fully consistent with the framers' views of both human nature and how government is supposed to work, while Nagel's view is starkly at odds with the framers' constitutional theory and design. My essay begins with a description of the framers' view of human nature and proceeds to a discussion of Thayer's view of human nature. In the final section, I discuss Professor Nagel's view of human nature and attempt to show how this view is at odds with the Founders' design.
Keywords: Constitution, Federalism, State's Rights, Commerce Clause, Privileges and Immunities Clause, Equal Protection Clause, Due Process Clause, Contract Clause, Bicamerial Legislature, Judicial Review, Supreme Court, Judicial Restraint, Statutory Interpretation, Judicial Override, Judicial Activism
JEL Classification: K00, K10, K19, K39
Suggested Citation: Suggested Citation