Utilitarian Constitutionalism: A Comparison of Bentham & Madison
61 Pages Posted: 20 Jun 2018
Date Written: June 2, 2018
Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.
Keywords: Bentham, Madison, Constitution, Constitutionalism, Utilitarianism, Legal History
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