Supreme Court Review

Article Title

To Promote the General Welfare: Why Madison Matters


This essay addresses an aspect of constitutional law that never gets old—the relation between the Constitution and the ideas of James Madison. When I began thinking about writing this essay, I considered addressing the issue of Madison and originalism. But I decided against that. Recent books by Mary Sarah Bilder, Saul Cornell and Gerald Leonard, Jonathan Gienapp, Michael Klarman, Jack Rakove, and chapters of Alison LaCroix’s forthcoming book The Interbellum Constitution have convinced me that for serious scholars in the field of legal history, the idea of originalism, whether it’s 1.0, 2.0, or 3.0, has been so thoroughly discredited that there is little left to say about it. Instead, this essay examines a way of thinking about the purpose of law and government common to several prominent and influential thinkers in the late eighteenth century. It is a way of thinking that might strike some readers as odd, and others as naive, particularly those whose training came from studying recent work in the mainstream social sciences, especially neoclassical economics, political science, evolutionary psychology, or any field bewitched by the idea of so-called rational choice. I argue that the primary purpose of government, not only for Madison but also for other influential American Constitution writers in the late eighteenth century, John Adams and James Wilson, was not to protect individual rights, or property, or the freedom to do whatever a self-interested individual wants to do. The purpose of government, at least from the perspective of Adams, Wilson, and Madison, was to advance the common good, or, in the words of the Preamble to the Constitution, to “promote the general Welfare.” That, I will argue, is why Madison matters.

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