Towards A Return to Constitutional Government: An Economic, Post-Romantic Argument For Ending The Bifurcation of Rights

Abstract

The United States government has steadily expanded beyond the enumerated powers set forth in the United States Constitution. Before 2020, the federal government controlled about 30% of the economy. This number rose to about 40% with COVID expenditures, which, given their timing, might be viewed as pre-electoral redistribution. The United States Supreme Court determines the constitutionality of government activity, but its jurisprudence in certain contexts relies on a presumption of constitutionality and a deference to the executive and legislature. At the root of the problem lies the Court's bifurcation of rights into fundamental political rights and non-fundamental economic rights. This article uses economic tools to show why the Court's bifurcation of rights rests on faulty assumptions of government benevolence and omniscience. It then argues for ending this bifurcation. Realistic and robust economic analysis, which we call "post-romantic," reveals that economic rights ought to enjoy the same respect as political rights under constitutional jurisprudence. An end to this bifurcation of rights would be a strong start toward restoring constitutionally limited government with its associated blessings of economic growth, poverty alleviation, and human flourishing.